Chong v Conroy [2005] QLRT 31

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re D.R. Chong & B. Reid & T. Conroy [2005] QLRT 31 PARTIES: Donervan Robert Chong (Applicant) & Bronwyn Reid & Trevor Conroy (Respondents) FILE NO/S: MLC151/04 PROCEEDING: Application to determine compensation DELIVERED ON: 7 March 2005 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Windridge MR ORDER/S: 1. Compensation determined at $2737.10 (at [14]) 2. The first payment of $1500.00 to be made within 60 days of grant of the mining lease, and the balance of $1237.10 on the first anniversary of the date of grant. (at [15]) CATCHWORDS: COMPENSATION – APPLICATION FOR MINING LEASE - GOLD – GRAZING PROPERTY Mineral Resources Act 1989, s. 281 Mineral Resources Regulation 2003, s. 18(b) 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 50209 in the Brisbane District for the purpose of mining for gold. [2] The mining lease has an area of 26.8985 hectares which I round off to 27 hectares for the purposes of this determination and ease of calculation. The lease and access is -- 1 of 3 -- located on Lot 62 on ML536, Parish of Canal Creek, County of Warwick approximately 60 kilometres west of Warwick. The application is for a term of 5 years. [3] The Tribunal has made certain orders in relation to the filing of written submissions. The landowner has not lodged any submission. The applicant miner has not filed any submission. 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] It is convenient to deal individually with the prescribed heads of compensation. [7] Deprivation of possession: There is no evidence 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. However, it is clear that there must be some diminution of value during the term of the lease. [9] Diminution of use: There is no evidence of diminution of use. It appears that a pastoral operation is conducted on the land, and some of the surface area, once mining operations commence, would not be available to the landholders for production purposes. I accept that only a small part of the lease is generally worked at any one time, and the balance of the lease, not being fenced off, is available for use by the landowner. [10] Severance: There is no evidence before the Tribunal that the grant of the lease will cause severance of one part of the property from any other part of the property. -- 2 of 3 -- [11] Surface rights of access: There is no detail available to the Tribunal about the access route which is through Lot 62. There is no evidence of any loss of land in the surface right of way, but there must be some loss. I am not convinced that any value other than a nominal value of $10.00 should be awarded for access. [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.283(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. 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 $20.00 per hectare per year for the term of the grant. Having regard to the foregoing, I determine compensation as follows: (a) Deprivation of possession (s.281(3)(a)(i)) $2700.00 (b) Surface rights of access (s.281(3)(a)(v)) 10.00 $2710.00 (c) Additional 10% (s.281(4)(e)) 27.10 Total $2737.10 [15] No submissions were made in respect of times, terms or manner of payment. I note the grant will be for a term of 5 years, and the base rate is $540.00 per year. Under the circumstances, I consider it would be of benefit to the parties if the payment was in two instalments – one instalment of $1500.00 within 60 days of notification of grant, and the balance of $1237.10 on the 1st anniversary of the date of grant. I order accordingly. -- 3 of 3 --