Combe v Allen [2006] QLRT 47

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Combe & Allen [2006] QLRT 47 PARTIES: In the matter of Mining Lease 95507 – Application by Stephen Phillip Combe for determination of compensation payable to I.Allen FILE NO: MLC45/06 PROCEEDING: Application for determination of compensation DELIVERED ON: 1 June 2006 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 $310.00. (at [14]) 2. I award an additional amount of $31.00 in accordance with s. 281(4) (e). (at [14]) 3. I direct that the miner pay the total compensation in the sum of $341.00 to the landowner within 3 months of notification of grant of the mining lease by the Mining Registrar. (at [15]) 4. No order for costs. (at [16]) 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 (10.03.93) unreported COUNSEL: N/A SOLICITOR/S: N/A -- 1 of 4 -- Background [1] The applicant Stephen Phillip Combe (the miner) seeks the grant of Mining Lease 95507 in the Winton District. The application requests a term of 20 years and that term will commence from date of grant. [2] The proposed lease is located on land which is more particularly described as Lot 1934 on PH 848, Parish of Strathconan, County of Coorajah. Access is through the same property. A grazing operation is conducted on the property by the current owner. The proposed lease is over an area of 2.2652ha and is to be granted for the purpose of mining for opal. For the purpose of this determination, I round off the area to 3 hectares for convenience and ease of calculation. 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 to the methodology that may 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 (1992-93) 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 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.” The evidence [7] Neither party sought to appear before the Tribunal and this matter has been dealt with on the papers. The Tribunal made orders in relation to the lodgement of -- 2 of 4 -- submissions. Neither the respondent landowner nor the miner made any written submissions. Neither party filed statements or other supporting material. Some documentation in relation to factual matters was provided by the Registrar. I have referred to this material for the purpose of accuracy where required. [8] There was no formal valuation evidence available for consideration, and therefore the Court 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 land owner has lost the use of the lease area of approximately 3 hectares for the term of the lease. [9] Prior determinations and agreements for leases and claims in the Winton and Quilpie areas range from about $5.00 per hectare per year to $15.00 per hectare per year, subject to the size of the lease, the term of the lease, and the general nature of the surface area of the lease. [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 grant, it appears access is through the same property. Access is in all probability a track that is or may be, at a future time, used by any number of persons who have or may take up leases, claims or prospecting tenures in the area. I award a nominal sum of $10.00 for loss of surface rights for access to the lease. 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 only a small immeasurable effect on the operations conducted on the property for at least half a year, possibly longer under favourable weather conditions. 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 (as a result of the grant of the lease) and I make no allowance for injurious affection of the balance of the property . [13] It is not the usual event that the mining lease is fenced to keep stock out, and it is common practice for the balance of the lease not disturbed by mining to be left available for grazing by stock and native fauna. In this instance, I do not consider that co-use or co-existence is a reasonable option, and no allowance will be made for this fact. This determination will reflect the level of usage of the surface of the lease by the miner against the right of the landowner to receive compensation and place the landowner is as near a position that a monetary award can as if the lease did not exist. -- 3 of 4 -- [14] Having regard to all the circumstances, I consider that the following award will satisfy the requirements of s. 281 for the term of the 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 Mineral Resources Act 1989, to satisfy all heads of compensation set forth in subsection 3 of section 281 of the Mineral Resources Act 1989 shall be the sum of $5.00 per annum per hectare for the term of the lease. I award the additional sum of $10.00 for access. The aggregate total of these awards is $310.00. I further award the sum of $31.00 under section 281(4)(e) to reflect the compulsory nature of the action taken under this part. There appears to be no reason or circumstance why the premium of 10% should be increased. Terms of payment [15] 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 landowner in the sum of $341.00 within a period of (3) months from notification of grant of the mining lease by the Mining Registrar. Costs [16] Neither party has sought an order for costs and in this matter it is not appropriate that costs be awarded. -- 4 of 4 --