Dembowski & Anor v Struber & Wilson-Struber [2006] QLRT 44

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Dembowski & Anor & Struber & Anor [2006] QLRT 44 PARTIES: Re Daniel John Dembowski and Denise Mary Dembowski (Applicants) and S R Struber and D R Wilson-Struber (Respondents) FILE NO/S: MLC43/06 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 $121.00. (at [21]) 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 [22]) CATCHWORDS: COMPENSATION – MINING LEASE – STREAM BED – GRAZING PROPERTY – OWNER Mineral Resources Act 1989, s. 281 Water Act 2000, ss 20, 21 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: 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 -- 1 of 5 -- (Struber) of the renewal of the applicant’s mining lease number 20243 in the Mareeba District. [2] The lease is located on Lot 2 on CP910619 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 surface area of the lease on Lot 2 and that part of the access that transverses Lot 2. This land is held by the respondent landowners Struber & Wilson-Struber. The actual area of the lease is 6.75 hectares. For the purpose of convenience and ease of calculation, I round off the area to 7 hectares. [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 not lodged a submission. 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 5 -- legislation, the following past appeal cases offer some guidance as to methodology to be used in arriving at a determination. 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] I have some concerns over the surface area of the lease. Section 21(1) of the Water Act provides: “(1) The bed and banks of all watercourses and lakes forming all or part of the boundary of land are, and always have been, the property of the State.” The land owner of the “adjoining” land does not own the stream bed. There is nothing in the definition of “owner” under the Mineral Resources Act 1989 which displaces or overrides this provision dealing with “beds and banks” (s.21 Water Act). [11] There are reservations under subsection (3) of section 21 of the Water Act for landowners, as follows:  The right to take water for stock purposes or domestic purposes (s. 20(3)).  A right of access over the part of the bed or bank that adjoins the owner’s land (s. 21(3)(a).  A right of grazing for the person’s stock over the part of the bed or bank that adjoins the owner’s land (s. 21(3)(b)).  A right to bring an action for trespass on the part of the bed or bank that adjoins the owner’s land as if the person owned the bed or bank (s. 21(3)(c)). Ownership of the stream bed remains with the State. The stream bed is, or must be treated as, unallocated State land. The reservations referred to above are strictly limited rights, and do not confer any locus standi on the adjoining landowner. [12] In this instance, I have no evidence of the area of land contained in the lease that is within the banks of any stream. It is the responsibility of the miner to submit such information for consideration. -- 3 of 5 -- [13] That leaves for consideration any land covered by the lease that is outside the stream bed, and that part of the access which transverses Lot 2. There is no evidence of the dimensions of this access. [14] 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. Apart from taking water or exercising the right to depasture stock (if pasture does exist), the surface of the stream bed is of little use by the landowner of the adjoining land. [15] 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. [16] 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. [17] Severance: The renewal of the lease will not cause severance of one part of the property from any other part of the property. I make the assumption that the plan of operations restricts the mining operation to the alluvium confined by the stream banks. [18] Surface rights of access: There is no evidence of any loss of land in the surface right of way. I assess loss of access to be of nominal effect, and award the sum of $10.00 under this head of claim. [19] Loss or expense: There is no evidence of any other loss or expense that will occur because of the grant of the lease. [20] 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. Determination [21] 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. The stream bed is the property of the State. Any banks or land which are included within the lease boundaries are not part of the plan of operations and will not be disturbed. 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. 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 $10.00 per year for a renewed term of 10 years. -- 4 of 5 -- (a) Deprivation of possession (s. 281(3)(a)(i)) $100.00 (b) Access 10.00 (b) Additional 10% (s.281(4)(e)) 11.00 Total $121.00 [22] 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. -- 5 of 5 --