Delminco Pty Ltd & Harbron Pty Ltd, Re [2005] QLRT 95

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Delminco Pty Ltd & Harbron Pty Ltd [2005] QLRT 95 PARTIES: Delminco Pty Ltd (Applicant) & Harbron Pty Ltd (Respondent) FILE NO/S: VOA178//04 VOA179/04 VOA180/04 PROCEEDING: Applications for variation of access to mining lease land DELIVERED ON: 25 July 2005 DELIVERED AT: Brisbane HEARING DATE: 12 July 2005 PRESIDING MEMBER: Koppenol P ORDER/S: 1. Mining registrar directed to record agreed variations of access and conditions. (at [4]) 2. Compensation determined at $677.25. (at [12]) 3. Applicant to pay respondent such $677.25 within 30 days of today. (at [12]) CATCHWORDS: MINING LEASE LAND – VARIATION OF ACCESS – COMPENSATION Mineral Resources Act 1989, ss 281, 317 COUNSEL: N/A SOLICITORS: Mr R. DeLacey (Director of Applicant) appeared on his own behalf Mrs A. English (Bottoms English, Cairns) for the Respondent Applications [1] These are 3 applications under section 317 of the Mineral Resources Act 1989 to vary the route to be used to access certain mining lease land on Strathleven Station (the respondent’s grazing property) in the Mareeba mining district. -- 1 of 3 -- [2] The matters were referred to the Tribunal because the respondent landowner did not consent to the proposed variations of access. Agreement reached [3] Following the making of directions for the exchange of material, the applications were heard by me by telephone. Although some tension between the parties was evident during the hearing, the respondent ultimately agreed to the variations of access that were sought (see Attachment A), but subject to a number of conditions (see Attachment B) to which the applicant ultimately agreed.1 [4] On that basis, I will direct the mining registrar to record those variations of access and conditions. Compensation [5] Section 317 also requires the Tribunal to determine the amount (if any) of compensation that should be paid by the miner (the applicant in these proceedings) to the landowner in respect of the proposed use of the varied access route. In that regard, section 317(6) applies the usual mining lease compensation factors in section 281. [6] Mrs English, for the respondent, submitted that compensation should be determined on the following basis:  $756.75/km/year as loss of profits under section 281(4)(d). This figure would be calculated when the final length of the linking access from the respondent’s existing road to each mining lease area is determined. It would be payable for each year the mining leases were operative. The $756.75 figure was said to represent the loss which the respondent would suffer because of its inability to graze cattle on the varied access routes (and 50m either side) due to the dust expected to be thrown up by the applicant’s vehicles.  An additional $5,000 under section 281(3)(vi) as an expense arising from the variations of access. It represents approximately 50% of the respondent’s costs of the construction of the existing road.  The additional 10% prescribed by section 281(4)(e). [7] I am not satisfied that the respondent’s approach should be accepted. [8] The applicant’s director (Mr DeLacey) gave evidence (which I accept) that the proposed mining operations (for alluvial gold) would initially require him to move his machinery to the site (a river bed) and then to traverse by 4-wheel drive vehicles the access links to the existing road a couple of times a week. That would be done by driving across land which is currently grassed and lightly wooded. A track would undoubtedly be formed in due course by doing so. The respondent asked me to accept that this track would be 4m wide and dust would be thrown some 50m either side when the applicant’s vehicles drove along it. Whilst I certainly appreciate the 1 The respondent landowner sought a further condition about public liability insurance but this was opposed by the applicant. It was agreed at the hearing that that proposed condition would be deleted, although the respondent subsequently attempted to reintroduce it. -- 2 of 3 -- respondent’s concerns and accept that some dust would naturally result from the wheel tracks, I am not satisfied on the material before me that there would be any “significant dust problem” (as submitted by the respondent) or that it would prevent cattle from grazing near the track.2 [9] The respondent’s claim for the additional $5,000 was said to be recoverable because the applicant would be using the respondent’s road (a dirt road) about as often as the respondent. This road runs from the main, gazetted road up to and past the homestead and down to the cattle yards. Because it was constructed some years ago—and therefore before the determination of these variation of access applications, none of the construction expenses can reasonably be said to arise “as a consequence of” (the section 281(3) test) those variations of access. Mrs English emphasised that the applicant’s operations would benefit from the existence of this road. I agree. I also note that the applicant has agreed to maintain and repair the road and that will certainly be of benefit to the respondent. However at the end of the day, “benefit” is not the relevant test under section 281—and that is the determining section for present purposes. [10] Mr DeLacey submitted that the appropriate compensation figure should be a one-off amount calculated by reference to the unimproved value of the land (agreed at $8/ha) the subject of the proposed varied access routes (agreed at 76.96ha). That amounts to $615.68. Although that calculation was not articulated by reference to any of the section 281 factors, I apprehend that it would be covered by section 281(3)(a)(ii)— “diminution of the value of the land of the owner … as a consequence of” the variations of access. Although Mrs English disputed the method of determining compensation, it was not submitted that if Mr DeLacey’s method were to apply, some figure other than the unimproved value should be used as a basis for the calculation. Determination and order [11] In all of the circumstances, I regard the appropriate amount for compensation as the sum of $615.68 which was advocated by Mr DeLacey. To that amount should be added the additional 10% under section 281(4)(e)—namely $61.57. [12] I therefore determine compensation in the total sum of $677.25 and order the applicant to pay that amount to the respondent within 30 days of today. 2 The statement of Angus Smith Dinnie filed 04.07.05 said (page 4) that he was “concerned” that dust would smother the grass on 50-60m either side of the track. However no factual basis or foundation for that concern was set out. -- 3 of 3 --