Armstrong v Brown [2005] QLRT 73

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Armstrong v Brown [2005] QLRT 73 PARTIES: Dean Lindsay Armstrong and Lisa Maree Armstrong (Appellants) and Gregory John Brown (Respondent) FILE NO: APTP34/05 PROCEEDING: Appeal against determination of compensation DELIVERED ON: 16 June 2005 DELIVERED AT: Brisbane HEARING DATE: 14 June 2005 MEMBERS: Koppenol P, Windridge MR, Mr R Wright ORDER/S: 1. Appeal disallowed. (at [9]) 2. Determination of Kingham DP confirmed. (at [9]) 3. Appellants to pay Respondent’s costs of and incidental to the appeal. (at [11]) CATCHWORDS: APPEAL––COMPENSATION––MINING LEASE–– COSTS Mineral Resources Act 1989, ss 281(3)(a), 282, 282(5)(b) Land and Resources Tribunal Act 1999, ss 41(2), 50 Minister of State for the Army v Pacific Hotel Pty Ltd [1944] StRQd 112, applied Sullivan v Oil Company of Australia (No 2) [2004] 2 QdR 105, applied Land and Resources Tribunal v Schmidt & Ors [2005] QCA 195, applied COUNSEL: Mr A Barlow for the Respondent SOLICITORS: Creswicks Lawyers for the Respondent Mr G Houen (Agent) for the Appellants -- 1 of 3 -- [1] KOPPENOL P: This is an appeal under section 282 of the Mineral Resources Act 1989 (MRA) against a determination of compensation made by Kingham DP.1 The matter was heard by a panel constituted by Windridge MR, Mr R. Wright and me; however the decision is required to be made by me alone.2 At first instance, the appellant landowners sought $192,845 and the respondent miner submitted that only $38,775 should be awarded. The appellants were awarded $89,466. That was for the effect of a 10-year sapphire mining lease on a part (150ha) of the appellants’ 16,119ha cattle property. Only 10ha of that 150ha may be used for mining at any one time.3 Arguments [2] The appellants’ agent (Mr Houen) argued that the deputy president erred in a number of areas:  in rejecting the appellants’ valuer’s opinion (a) that a discount figure of 66.66% should apply with respect to the diminution of the value of the land the subject of the mining lease, (b) about the assessment of diminution in value of the balance lands in Top Bullock Paddock, and (c) as to the attitude that a hypothetical prudent purchaser would take about the effect of the proposed mining lease on the property’s value.  in disallowing the appellants’ claim for recovery of their valuation fees. [3] The basis of Mr Houen’s argument on the first point was that the deputy president should have accepted the appellants’ valuer’s opinions on the 3 subjects in question. Almost 13 pages of written submissions and more than 2 hours of oral presentation were devoted to demonstrating the perceived soundness of the valuer’s evidence. [4] Mr Barlow of Counsel submitted that Mr Houen consistently referred to “complaints” about Kingham DP’s decision, but failed to articulate (much less, to demonstrate) why that decision should not stand or why the valuer’s evidence should have been accepted. [5] When the basis of an appeal is that the decision-maker below erred in various respects, the focus of attention should be upon demonstrating error. Error is not demonstrated by highlighting the evidence which the appellant submits should have been accepted below. Rather, it is necessary to direct attention to the particular finding or conclusion which is in issue and then to explain why it was erroneous or mistaken. That was not done in this case. [6] Mr Houen’s written submissions also said that the deputy president (a) reached conclusions about the discount figure which were “without foundation”, (b) gave the valuer’s opinion “no weight at all”, and (c) adopted a “legal perspective” about the attitude of a hypothetical prudent purchaser.4 [7] I do not accept any of those contentions. Kingham DP engaged in a detailed analysis of the appellants’ valuer’s evidence before concluding that his opinions about the discount figure, the balance lands and the attitude of a hypothetical prudent purchaser 1 [2005] QLRT 18. 2 Land and Resources Tribunal Act 1999, section 41(2). In making my decision, I conferred with Mr Windridge and Mr Wright. 3 [2003] QLRT 55. 4 Eg, Appellants’ submissions paras 11.1., 13.2, 14.2, 17.2. -- 2 of 3 -- were not accepted.5 It is not necessary for me to repeat that analysis here. I regard the deputy president’s reasons as comprehensive and compelling. I am not satisfied that any error has been demonstrated. Valuation fees [8] The other point raised by Mr Houen was that disallowance of the appellants’ valuation fees was “not firmly based in law”.6 I disagree. The High Court has held (in a compulsory acquisition compensation case) that valuation fees were costs incurred in preparing the claim and not in consequence of taking the land.7 More recently, the Queensland Court of Appeal held (in a petroleum infrastructure compensation case) that legal fees to prepare the claim were not damage consequential upon the petroleum company’s occupation of the land.8 In the present case, prescribed compensation is payable if it arises as a consequence of the grant of the mining lease.9 It would therefore be inconsistent with binding authority to allow recovery, as statutory compensation, of the valuation fees. Those fees were incurred to prepare the compensation claim. Because the mining lease has not yet been granted, they cannot be regarded as arising as a consequence of that future grant. As a result, the fact that the grant cannot be made until compensation is determined is irrelevant. Disposition [9] It follows that as the appellants have not established any error made by Kingham DP, the appeal will be disallowed and the determination of the tribunal at first instance will be confirmed.10 Costs [10] Mr Barlow sought costs under section 282(5) of the MRA. Mr Houen submitted that section 50 of the Land and Resources Tribunal Act 1999 (LRTA) applied—under which costs can be awarded under special circumstances only. However because section 282 is the specific provision dealing with appeals against compensation determinations, it prevails over the general provision in section 50. That approach is consistent with very recent Court of Appeal authority on the interaction between provisions of the MRA and the LRTA.11 [11] In my view, the appellants’ case had no serious prospects of success. Their arguments on appeal focussed mostly upon the evidence at first instance, rather than upon endeavouring to demonstrate error by the deputy president. In the end, they failed and the appeal was dismissed. In the circumstances, and as no reason has been advanced why costs should not follow the event, there will be an order that the appellants pay the respondent’s party and party costs of and incidental to this appeal, as agreed between the parties or (failing agreement) assessed by the Registrar of the Tribunal. 5 [2005] QLRT 18, at [9]-[37]. 6 Appellants’ submissions in Reply, para 22. 7 Minister of State for the Army v Pacific Hotel Pty Ltd [1944] StRQd 112, 119, 120, 122, 129. 8 Sullivan v Oil Company of Australia (No 2) [2004] 2 QdR 105, 116 [37]. 9 MRA, section 281(3)(a). 10 MRA, section 282(5)(b). 11 Land and Resources Tribunal v Schmidt & Ors [2005] QCA 195. -- 3 of 3 --