Combe v Allen [2005] QLRT 43

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re S.P. Combe & I.J. Allen [2005] QLRT 43 PARTIES: Stephen Phillip Combe (Applicant) & Ian Allen (Respondent) FILE NO/S: MLC9/05 PROCEEDING: Application to determine compensation DELIVERED ON: 22 April 2005 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Windridge MR ORDER/S: 1. Compensation determined at $342.00. (at [14]) 2. Such compensation to be paid by the miner to the landowner within 60 days of the grant of the mining lease. (at [15]) CATCHWORDS: COMPENSATION – APPLICATION FOR MINING LEASE - OPAL – GRAZING PROPERTY Mineral Resources Act 1989, s. 281 COUNSEL: N/A SOLICITORS: N/A AGENT/S: 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 grant of the applicant’s mining lease number 95479 in the Winton District for the purpose of mining for opal. [2] The mining lease has an area of 2.7763 hectares which I round off to 3 hectares for the purposes of this determination and ease of calculation. The lease and access is located on Highlands Holding in the Winton area. The application is for a term of 20 years. -- 1 of 3 -- [3] The Tribunal has made certain orders in relation to the filing of written submissions. Neither party has made any submissions. There is no valuation evidence to consider. Compensation [4] 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”. [5] 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).” [6] The heads of claim for compensation are defined in the statute and it is convenient to deal individually with the prescribed heads of compensation as set out in the statute. [7] Deprivation of possession: There is no evidence on this head of claim from either party but it must be assumed that technically, grant of the lease does in law deprive the owner of the use of that surface area for the term of the lease. [8] Diminution of value: There is no valuation evidence to consider. There are a number of similar leases on the same property and the existence of this lease would not be of any significance. [9] Diminution of use: There is no evidence of diminution of use. I accept that a small part of the lease can be worked at any one time, and the balance of the lease, not being fenced off, is available for use by the landowner. However, with a lease area of 3 hectares, co-use or co-occupation does not seem to be a real viable situation. [10] Severance: The grant of the lease will not cause severance of one part of the property from any other part of the property. [11] Surface rights of access: There is no detail available to the Tribunal about the access route. There is no evidence of any loss of land in the surface right of way. Normally such access routes are used by a number of persons. I am not convinced that any value other than a nominal value of $20.00 should be awarded for access, bearing in mind the term of the proposed lease is 20 years. -- 2 of 3 -- [12] Loss or expense: There is no evidence of any other loss or expense that will occur because of the renewal of the lease. [13] Additional 10%: In respect of s.238(4)(e), no submissions were made, and there appears to be no cause or circumstance why more than the statutory 10% should be added to the general award. Determination [14] I take into account the fact that not all of the lease can be disturbed at any one time, and the balance, possibly two thirds, would be available for grazing purposes. I am aware that only limited grazing can occur, given the general nature of the country. Past awards for similar leases in the Winton District are in the vicinity of $5.00 per hectare. There is a lack of definitive evidence before the Tribunal, and under the circumstances I am unable to make any order other than a nominal order of $5.00 per hectare per year. I determine compensation as follows: (a) Deprivation of possession (s.281(3)(a)(i)) $300.00 (b) Surface rights of access (s.281(3)(a)(v)) 20.00 $320.00 (c) Additional 10% (s.281(4)(e)) 32.00 Total $342.00 [15] No submissions were made in respect of times, terms or manner of payment. I note the grant will be for a term of 20 years, and the base rate is $15.00 per year. Under the circumstances, I consider it would be of benefit to the parties if the payment was in full and such payment was made within 60 days of notification of the grant of the lease by the Registrar. I order accordingly. -- 3 of 3 --