Dembowski & Anor v NBT Pty Ltd [2006] QLRT 45

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Dembowski & Anor & NBT Pty Ltd [2006] QLRT 45 PARTIES: Re Daniel John Dembowski and Denise Mary Dembowski (Applicants) and NBT Pty Ltd as Trustee (Respondents) FILE NO/S: MLC44/06 PROCEEDING: Application to determine compensation DELIVERED ON: 26 May 2006 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Windridge MR ORDER/S: 1. Compensation determined at $110.00. (at [17]) 2. Such compensation to be paid by the miner to the landowner within 30 days of notification of the renewal of the mining lease. (at [18]) 3. A copy of this determination be provided to the Hon. The Minister for Natural Resources, Mines and Water. CATCHWORDS: COMPENSATION ––ACCESS ONLY - GRAZING PROPERTY – Mineral Resources Act 1989, s. 281 Mining Right of Way Act (RSBC 1996) Chapter 294 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 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 (NBT Pty Ltd) of the renewal of the applicant’s mining lease number 20243 in the Mareeba District. -- 1 of 4 -- [2] The lease is located in Lot 2 on CP910619 on Palmerville Holding, and access to the lease is through Lot 2, Lot 1 (Karma Waters) and Lot 4567 (Bellevue Station). The balance of the access is Road Reserve under the control of the Cook Shire Council. The matter for consideration here is the access route that transverses Lot 4567 on Bellevue. This land is held by the respondent landowners NBT Pty Ltd as Trustees. [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. The landowner seeks the sum of $250 per annum from each leaseholder (miner) based on his (the landowner’s) intentions to implement occupational health and safety policies. The miner offers the sum of $85.00 based on the area and value of the access route. [4] The Tribunal has given directions in relation to time frames for submissions, and this matter has been dealt with on the papers. The landowner has lodged a brief submission not related to section 281 of the MRA. The applicant miner has lodged a brief written submission. 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 application for renewal and the mining lease Public Report for the purpose of accuracy where necessary. No site visit has been conducted. The miner appears to have amended his initial application for renewal from 5 years to 10 years. 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. Whilst the Tribunal is only bound by its own -- 2 of 4 -- legislation, the following past appeal cases offer some guidance to methodology. In Smith v Cameron [1986-1987] 11 QLCR 64, the Land Court held at p. 74… “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: The matter under consideration is that part of the access road that traverses Lot 4567. There is no deprivation of possession. [11] Diminution of value: There is no valuation evidence to consider. It is difficult to find any significant reduction of value for an access road that is used by other persons from time to time. [12] Diminution of use: There is no evidence of diminution of use. [13] Severance: The renewal of the lease and that part of the nominated access route that traverses Lot 4567 will not cause severance of one part of the property from any other part of the property. [14] Surface rights of access: This is the only issue to be decided here. The applicant miner indicates the access (through Lot 4567, presumably) is some 8.5 kilometres in length and 10 metres wide. This part of the access is apparently used by any number of other vehicles from time to time. I assess loss of access to be of nominal effect. The miner calculates the total area of access is 8.50ha, and offers the sum of $85.00 as compensation. [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. I am not satisfied that any award other than a nominal award is justified. I take into account that no part of the mining lease is located on this property, and this award will reflect more or less the nuisance value of persons entering the property and using the access to travel to the lease, as against any actual mining by this miner occurring on the property. Had there been some disturbance from mining, a different approach may be justified. I note that under the Mining Right of Way Act (RSBC 1996), no compensation for access is payable, the right to mine giving a common law right of access to the mining tenement. Having regard to the foregoing, I determine compensation as follows at the rate of $10.00 per year for a renewed term of 10 years (a) Access (s.281 (3)(v) 100.00 (b) Additional 10% (s.281(4)(e)) 10.00 Total $110.00 [18] 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 30 days of notification of renewal of the lease by the Registrar. [19] It has been to the landowners disadvantage that he made no attempt to refer to section 281 of the MRA or to practice directions issued by the Court in any meaningful detail. The mining lease is not located on this property, and no person is entitled to enter the lease surface except with the consent of the leaseholder (s.403(e) MRA). We are dealing with access only here through a property and it is obvious access is shared with others. The landowner has an “as of right “use of this access for his own purposes. It is refreshing to read of the intentions to implement O H & S policies on the property by Mr Taylor, AM. The policy will include, I presume, the use of roll over cages/bars on all station vehicles, property vehicles to pass mechanical inspections, use of seat belts, safety glasses and hearing protection by all persons in workshops, installation of fire extinguishers and first aid stations, and the establishment of an Environmental Management Plan for the storage, bunding, handling and disposal of fuels, oils and poisons etc. It is to be hoped other landowners will follow this new lead to be set by NBT Pty Ltd. But not on mining leases. Health and safety issues on mining tenements are within the jurisdiction of the Chief Inspector of Mines (or his legislative successor), or any person delegated by him, under the relevant health and safety legislation. The Chief Inspector or persons delegated by him have the sole power to enforce compliance and impose sanctions and penalties in relation to health and safety issues. The landowner has no such jurisdiction over miners or mining tenements. [20] It is recommended that the Honourable the Minister for Natural Resources, Mines and Water give some consideration to the adoption of legislation similar to the Mining Right of Way Act (RSBC 19996) when amendments to the Mineral Resources Act 1989 are being considered. There would be considerable savings in time, money and resources to the parties, the Department and this Tribunal if appropriate amendments were made in relation to access provisions. -- 4 of 4 --