Doroshenko v Rayment [2006] QLRT 37

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Doroshenko v Rayment [2006] QLRT 37 PARTIES: In the matter of Mining Lease 95189 – Application by Peter John Doroshenko for determination of compensation payable to Bruce Rayment. FILE NO: MLC33/06 PROCEEDING: Application for determination of compensation DELIVERED ON: 5 May 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 $160.00. (at [15]) 2. I award an additional amount of $16.00 in accordance with s. 281(4)(e). (at [15]) 3. I direct that the miner pay the total compensation in the sum of $176.00 to the current landowner within 2 months of notification of the mining lease by the Mining Registrar. (at [16]) 4. No order for costs. (at [17]) CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION Mineral Resources Act 1989, ss 279, 281 S.P. White v Warner [2003] QLRT 40 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 Peter John Doroshenko (the miner) seeks the renewal of Mining Lease 95189 in the Winton District. The lease was initially granted for a period of 10 years from 9 November 1995. The application for renewal for a term of 10 years was lodged at the office of the Mining Registrar Winton on 27 September 2005. The renewed term is to commence on and from 1 December 2005. [2] The lease is located on Glen Eurquart Holding which is more particularly described as Lot 6 on KN43, parish of Dawn and Merrmerrah, County of Woodstock. Access is through the same property and Lot 373 on PH2077, being part of Kynuna Holding. A grazing operation is conducted on the property. The lease is over an area of 2.85ha and is granted for the purpose of mining for opal. For the purpose of this determination, I round off the area to 3 hectares. 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. 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. Neither party filed statements or other supporting material. -- 2 of 4 -- Some documentation in relation to factual matters was provided by the Registrar. Where necessary, I have referred to these documents for the purpose of accuracy. [8] There was no formal valuation evidence to consider 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 notionally lost the use of the lease area of 3ha for the term of the renewal. [9] Prior determinations and agreements for leases and claims in the Winton and Quilpie area range from about $5.00 per hectare per year to $15.00 per hectare per year. [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 renewal, it appears access is through the same property and an adjoining property. There are no details of this access or the effect it will have on the operations of the landowners. Access is in all probability a track that is used by any number of persons who have leases, claims or prospecting tenures in the area. I award a nominal sum of $10.00 in relation access to the lease, noting that the term of the renewal is not of a short duration. Blot on title [12] The loss of land through a mining tenure of lengthy duration has been accepted by the Land Court as similar to permanent acquisition for a limited time (Smith v Cameron (1986-87) 11 QLCR). In this instance, the renewed lease is over an area of 3 hectares, and the term of the renewed lease is 10 years. In the absence of any evidence, I make no allowance for any perceived blot on title. There are a number of other claims and leases in this area that a willing purchaser might take into account for the presence of this lease, but no evidence to quantify any discount to a hypothetical purchase price. I note that a mining lease grants the right to mine on a limited area for a limited time. Other than the right to mine, the grant of a lease does not create any interest or title in the land. There is no endorsement or registration of the lease on the background title document. Quantum [13] In making this determination I take into account that the only other viable use of the land is low intensity grazing. The lease has been in existence since 9 November 1995. I consider mining operations on this lease of this size would have no measurable effect on the operations conducted on the property for at least half a year, probably longer. 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 and I make no allowance for injurious affection of the balance of the property. -- 3 of 4 -- [14] 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. 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. [15] Having regard to all the circumstances, 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. 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 renewal. I award the additional sum of $10.00 for access. The aggregate total of these awards is $160.00. I further award the sum of $16.00 under section 281(4)(e) to reflect the compulsory nature of the action taken under this part Terms of payment [16] 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 period of renewal. In these circumstances, I order that the miner pay total compensation to the current landowners in the sum of $176.00 within a period of (2) months from notification of renewal of the mining lease by the Mining Registrar. Costs [17] Neither party has sought an order for costs and in this matter it is not appropriate that costs be awarded. -- 4 of 4 --