Falzon & Anor v Allen [2005] QLRT 154

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Falzon & Anor v Allen [2005] QLRT 154 PARTIES: In the matter of Mining Lease 95108 – Application by Michael Paul Falzon and Eileen Margaret Falzon for determination of compensation payable to Ian J. Allen FILE NO/S: MLC147/2005 PROCEEDING: Application for determination of compensation DELIVERED ON: 17 November 2004 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 $60.00. (at [12]) 2. I award an additional amount of $6.00 in accordance with s. 281(4)(e). (at [12]) 3. I direct that the miner pay the total compensation in the sum of $66.00 to the landowner within 2 months of notification of renewal of the mining lease by the Mining Registrar. (at [13]) 4. No order for costs. (at [14]) CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION – RENEWAL Mineral Resources Act 1989, s. 281(3) and (4) Smith v Cameron [1986-87] 11 QLCR Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR Mitchell v Oakhill (Land Court unreported) COUNSEL: N/A SOLICITORS: N/A Background [1] The applicants Michael Paul Falzon and Eileen Margaret Falzon (the miners) seek the renewal of Mining Lease 95108 in the Winton District. The lease was initially granted for a period of one year from 19 May 1994. The application for renewal for -- 1 of 3 -- a term of five years was lodged at the office of the Mining Registrar, Winton on 27 May 2005. [2] The lease is located on Highlands Holding which is more particularly described as Lot 1934 on PH848, Parish of Strathconan, County of Coorajah. The lease is situated south of Emmet in the Isisford Shire, east of Mt Tighe. Access is through the same property. A grazing operation is conducted on the property by the current owner Ian J Allen. The lease is over an area of 1.20 hectares and is granted for the purpose of mining for opal. For the purpose of this determination, I round off the area to 2 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. The matter of compensation must now be determined by the Tribunal. [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. Some documentation in relation to factual matters was provided by the Registrar. I have referred to those documents for the purposes of accuracy only. [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, -- 2 of 3 -- the cost of a valuation would far outweigh any award for compensation. There are few other leases in the general area. [9] 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 [10] From details provided in the copy of the application for renewal, it appears access is through the same 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. I award a nominal sum of $10.00 in relation access to the claim, noting that the term of the renewal is of a short duration. Quantum [11] In making this determination I take into account that the only viable use of the land is low intensity grazing under favourable conditions. The lease has been in existence since 1 June 1994. I consider mining operations on a lease of this size would have no effect on the operations conducted on the property for at least half a year, probably longer. Any effect during mining operations 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. [12] 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. 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 2 hectares (for 5 years). I award the additional sum of $10.00 for access. The aggregate total of these awards is $60.00. I further award the sum of $6.00 under section 281(4)(e) to reflect the compulsory nature of the action taken under this part Terms of payment [13] 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 landowners in the sum of $66.00 within a period of (2) months from notification of renewal of the mining lease by the Mining Registrar. Costs [14] Neither party has sought an order for costs and in this matter it is not appropriate that costs be awarded. -- 3 of 3 --