Endeavour Mining Pty Ltd & Mintram & Ors, Re [2006] QLRT 21

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Endeavour Mining Pty Ltd & Mintram & Ors [2006] QLRT 21 PARTIES: Re Endeavour Mining Pty Ltd (applicant) & L.W., J.E., S.R. and K.L. Mintram (respondents) FILE NO/S: MLC191/05 PROCEEDING: Application to determine compensation DELIVERED ON: 22 March 2006 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Windridge MR ORDER/S: 1. Compensation determined at $781.00. (at [19]) 2. Such compensation to be paid by the miner to the landowner within 60 days of the renewal of the mining lease. (at [20]) CATCHWORDS: COMPENSATION – MINING LEASE – RENEWAL GRAZING PROPERTY – Mineral Resources Act 1989, s. 281 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 of the renewal of the applicant’s mining lease number 30155 in the Georgetown District. -- 1 of 4 -- [2] The lease is located on PH2379, parish of Putaburra, County Percy. Compensation is required for that part of the lease that is on PH2379 and access to the lease through the same property. The applicant miner seeks a renewal of 10 years, such renewal to commence from 1 September 2005. The purpose of the lease is to extract minerals, principally gold. The area of the lease is 7 hectares, and there are two other leases in the area worked in conjunction with this lease. [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. Neither the landowner nor the miner lodged detailed submissions. Any concerns that the landowner has with the tailings dam are not an issue of compensation, but rather one of compliance through the EPA. I have referred to some documents supplied by the Registrar namely a copy of the renewal application and the mining lease Public Report for the purpose of accuracy where necessary. No site visit has been conducted. 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. 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.” -- 2 of 4 -- [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] There is no valuation evidence to consider, and the Court therefore does not have that assistance in arriving at a determination. I will therefore deal with the heads of claim as best I can under the circumstances with the material that is available, taking care that no “doubling up” occurs. [11] Deprivation of possession: Technically, renewal of the lease does in law deprive the owner of the use of that surface area that is within the lease boundary. It appears the landowners conduct a grazing business on the land and the land taken in the lease is technically not available to them for the term of the lease. I award a nominal value of $10.00 per hectare for loss of possession for the term of the renewal. [12] Diminution of value: There is no valuation evidence to consider, but the value of the land must diminish during the term of the lease. [13] Diminution of use: There is no evidence of diminution of use, but the land when taken for mining purposes is not available to the landowner. [14] Severance: There is no evidence that the grant of the lease will cause severance of one part of the property from any other part of the property causing substantial disruption to any management practices. [15] Surface rights of access: There is no evidence of any loss of land in the surface right of way. There must be some loss, but there are no details available on which to base any award. I assess loss of access for the landowner to be of nominal effect, and award the sum of $10.00 under this head of claim. [16] Loss or expense: There is no evidence of any other loss or expense that will occur because of the renewal of the lease. [17] 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 [18] There will be some effect on the management of the pastoral holding, but there is no evidence available on which to firmly base a determination. I am not satisfied that any award other than a nominal award is justified, given the lack of substantial evidence. 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 at the rate of $10.00 per hectare per year for a term of 10 years [19] The aggregate of this award is $710.00. I further award the sum of $71.00 under s. 238(4)(e). Total compensation is as follows: (a) Deprivation of possession (s.281(3)(a)(i)) $700.00 (b) Access 10.00 (b) Additional 10% (s.281(4)(e)) 71.00 Total $781.00 [20] 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 60 days of notification of renewal of the lease by the Registrar. -- 4 of 4 --