Barrett v Weir & Anor [2006] QLRT 96

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Barrett v Weir & Anor [2006] QLRT 96 PARTIES: Rodney Keith Barrett (Appellant) v Kelven John Weir and Mark William Bayly (Respondents) FILE NO: APP108/06 PROCEEDING: Appeal against compensation determination DELIVERED ON: 1 September 2006 DELIVERED AT: Brisbane HEARING DATE: 29 August 2006 MEMBER/S: Koppenol P and Smith DP ORDER/S: 1. Appeal disallowed. (at [19]) 2. Mining Referee’s determination confirmed. (at [19]) CATCHWORDS: MINING LEASE – RENEWAL – COMPENSATION – APPEAL AGAINST MINING REFEREE’S DETERMINATION Mineral Resources Act 1989, s 282 COUNSEL: N/A SOLICITORS: G. Houen (agent) for appellants C. Graham (agent) for respondents [1] This is an appeal under section 282 of the Mineral Resources Act 1989 against a decision of the mining referee. The decision ([2006] QLRT 51) was to determine compensation to be paid by the respondent/miners to the appellant/landowner for the renewal of a 36ha mining lease at $686.40. [2] The appellant raised 3 points in urging us to allow the appeal:  Compensation should have been determined for the 10 year term sought rather than for only 3 years.  The determination should have included a component for the effect of the mining activities on his cattle yards and associated facilities (the improvements).  It should also have included a component for (a) severance and (b) loss of value of the mining lease land and injurious affection to the balance lands. -- 1 of 4 -- Term [3] The respondents’ renewal application sought a term of 10 years, but their written submissions to the mining referee were based on a term of only 3 years. The mining referee proceeded on the basis that the renewal term sought was 3 years. After the decision was published, the miners formally amended their application to seek a term of 3 years. [4] The appellant’s agent (Mr Houen) submitted that although the term had now been amended and although the appellant had made submissions to the mining referee about the compensation that should have been awarded for a 10 year term, he had been denied the opportunity to be heard on what compensation should have been determined for a 3 year term. [5] This argument is misconceived. The appellant’s written submissions about a 10 year term sought a compensation award of $35,740. Those that he advanced on appeal in respect of a 3 year term sought $21,254. Each submission addressed precisely the same compensation factors—and in the latter case the quantum sought was, naturally, adjusted downwards due to the shorter term involved. The mining referee addressed each of those compensation factors in his decision. No logical basis was advanced as to why the mining referee’s consideration of these same points in the submission seeking $35,740 would somehow have been differently decided if he had received instead the submission seeking only $21,254. Accordingly, this point leads nowhere. Improvements [6] Mr Houen submitted that the mining referee was in error when he found that there were no improvements of the landowner on the surface of or near the lease that would be affected by mining. It was said that the mining activities would adversely affect the appellant’s use of his cattle yards and associated facilities. [7] This argument cannot be accepted. The respondents’ mining lease contains a special condition in the following terms: “4. The miners shall at all times observe a 50 metre buffer around all improvements, including the principal stock yards, and ensure that at all times the landowner has access to the yards for the working of stock or transporting of stock from the yards by truck.” [8] That condition effectively obliges the miners to ensure that the mining activities do not adversely affect the appellant’s cattle yards and associated facilities. If it is breached, the appellant has available various remedies including reporting the matter to the mining registrar for appropriate action. [9] In the circumstances, no error has been demonstrated in the mining referee’s findings. -- 2 of 4 -- Severance, loss of value and injurious affection [10] The appellant’s complaints here were that the compensation determination should have included amounts for (a) severance and (b) loss of value of the mining lease land and injurious affection to the balance land [11] Severance: The mining referee found that there was no evidence that the lease renewal would cause a severance of one part of the property from any other part. One of the maps of the property before us showed (by dotted lines) the location of the local roads (AB 75): [12] The appellant’s property includes the shaded areas (the larger one of which is the mining lease area) and the area immediately below that. It therefore appears that the smaller shaded area and the area below the mining lease area may be connected by a narrow corridor on the right or that the appellant would have road or track access from the right around to that smaller area. We do not regard the cadastral map provided by the mining registrar as inconsistent with that. In addition, as the area above and to the left of the shaded areas is a designated fossicking area, the appellant may be able to have access through it to the smaller area. Alternatively, if some or all of the appellant’s cattle yards are located on that smaller area, the special condition referred to earlier would provide him with access across the mining lease area. [13] Unfortunately, these points were not clarified before the mining referee or before us. On that basis, it cannot be said that the mining referee was wrong in finding that there was no evidence of severance. [14] Loss of value and injurious affection: The mining referee found that because (a) the miners could disturb less than 4ha of surface area at any one time, (b) the property was a “brownfield” (previously mined) site and not a “greenfield” site, (c) the mining operations would have no measurable effect on the appellant’s grazing activities, (d) there is no diminution of use of the balance land and (e) it would be inequitable if no further award were made in favour of the appellant as there is the continuing presence of the miners on the land, “the only equitable method of assessing compensation in this particular instance is on an agistment basis”—which was -- 3 of 4 -- determined on the basis of 1 beast @ $4 per week for 156 weeks (3 years) in the sum of $624. [15] Mr Houen submitted that that approach was in error and the mining lease renewal would diminish the land value compared with its worth if the lease were not renewed. [16] We accept (as we think the mining referee also did) that the value of this land is probably lessened by the existence of the mining lease. However the question of quantification must take into account the factors which the mining referee identified and considered. It is also noteworthy, as the miners submitted, that this land is located in a well-known and long-established mining area. [17] Unlike the previous compensation application for this lease which was determined by the Tribunal in 2001 ([2001] QLRT 95), the appellant did not submit any valuation evidence to the mining referee. We cannot speculate as to what any such evidence might have said. It is therefore inaccurate to say that the loss of value figures in the valuations that were before the Tribunal in 2001 should have been adopted by the mining referee. [18] The mining referee did the best that he could on the material before him and we are not satisfied that his approach was erroneous. Disposition [19] In the circumstances, the appeal is disallowed and the mining referee’s determination is confirmed. -- 4 of 4 --