Coveney v Lloyd [2005] QLRT 5

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re R.G. Coveney v J.D. Lloyd and A.E. Lloyd [2005] QLRT 5 PART: Ross Gordon Coveney (Applicant) and Jeffrey D Lloyd and Anne E Lloyd (Respondent) FILE NO/S: MLC00157/2004 PROCEEDING: Application for determination of compensation DELIVERED ON: 12 January 2005 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers MEMBER: Windridge MR ORDER/S: 1. I determine compensation under section 281(3) in the sum of $520.00. (at [13]) 2. I award an additional amount of $52.00 in accordance with s. 281(4)(e). (at [13]) 3. I direct that the miner pay the total compensation in the sum of $572.00 to the landowner within 2 months of notification of renewal of the mining lease by the Mining Registrar. (at [15]) 4. Costs refused. (at [16]) CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION Mineral Resources Act 1989, s. 85(1) & (7) Smith v Cameron [1986-87] 11 QLCR Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR Sullivan v Oil Co of Aust Ltd & Anor [2003] QCA 570 COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: Mr G.T. Houen of Landholder Services Pty Ltd for the Respondent. [1] The applicant miner Ross Gordon Coveney (the miner) seeks the renewal of Mining Lease 95122 in the Winton District. The lease was initially granted for a period of -- 1 of 4 -- 10 years from 1 November 1994. The application for renewal for a term of 10 years was lodged at the office of the Mining Registrar Winton on 20 June 2003. The next ten year term will run from 1 November 2004. [2] From submissions on behalf of the landowner and other material, it appears the lease is located on “Eton Vale”, being described as Lot 2 on GN6, Parish Blanc, County Gowan. Eton Vale is described as being part of a grazing aggregation known as “Cootabynia”. Access is through the same property. A grazing operation is conducted on the property by the current owners. The lease is over an area of 5.94 hectares and is granted for the purpose of mining for opal. For the purpose of this determination, I round off the area to 6 hectares. [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. The Registrar has requested the matter of compensation be determined by the Tribunal. [4] The matters which must be considered by the Tribunal are set forth in s. 281(3) of the Act. Although s. 281 sets out the matters to be considered, it does not define any method of assessment. In Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139, the Court at p.14 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.” [5] Neither party sought to appear before the Tribunal and this matter has been dealt with on the papers with written submissions by each party. Some documentation in relation to factual matters i.e. a copy of the renewal application and location map was provided by the Registrar. I have also drawn upon my personal observations and knowledge of the operation of opal miners in this district. In these reasons I refer to the salient points but not all the evidence that I relied upon in making my determination. [6] In his submissions, the applicant miner has referred to each head of claim under section 281(3) and previous determinations of similar leases on similar land. The photograph tendered confirms the land is bare cap rock country with little or no vegetation and of very little pastoral value. The miner also relies on similar determinations over the same type of country and suggests that $5.00 per year per hectare is adequate compensation in this instance. The landowner submits a total claim of $11,387.00. This claim is based on a valuation report by P J Jinks and Associates (Jinks) assessed as at 19 November 2004. It must be noted that the prior determination referred to by the miner was made some 10 years ago. It is common knowledge that property prices throughout Queensland have risen considerably in recent years, and remote rural properties have not been excluded from this trend. [7] Each case is determined on its own merits, and the approach to determine compensation may vary even for leases or claims on the same property, subject to such evidence as is tendered or factual information that is available from the file. Any award can be impacted by such things as the term of the lease i.e. short or long, and the area of the claim or lease i.e. small or large. Other factors, such as proximity -- 2 of 4 -- to improvements, access, dust or noise disturbance can in some instances be factors which will affect an award. In this particular instance, the Tribunal has only written submissions and one valuation report to consider. A previous determination of compensation on this property was handed down in the Wardens Court on 16 August 1994. That determination awarded compensation in the sum of $300.00, a per hectare rate of $5.00 over the ten year term of the initial lease. [8] Given the fact that the renewal sought in this instance is for a period of ten years under a lease tenure over approximately 6 hectares, and that generally property prices have moved upward in the last few years, a rate per hectare higher than $5.00 is warranted. I note the submission of the applicant miner where he is not able to quantify any loss under any head of claim under section 281(3), and seeks a “general” award of $5.00 per hectare per year. The valuation tendered on behalf of the landowners (Jinks) referred to disturbance to adjoining pastures and stock behaviour. The Jinks valuation was “piecemeal” as against “before and after”, and I consider the “before and after” approach is not available in this instance. I consider any silting up from run-off is remote from the compensation criteria, and an environmental issue. The lease is well beyond the proscribed distance from any improvement, and any effect on stock would be negligible. No mining took place on the land during the initial term. The landowner has therefore had the benefit of a payment of compensation for the first term without any disturbance by operations on this lease. [9] 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 landowner. I award a nominal sum of $20.00 in relation to access to the lease area. [10] The term of the renewal is 10 years. The loss of land through a mining tenure of lengthy duration has been accepted by the Land Court as similar to permanent acquisition for a limited time (Smith v Cameron (1986-87) 11 QLCR). In this instance, the renewed lease is over an area of 6 hectares, and the term of the renewed lease is 10 years. There is no permanent acquisition, but I note that this is the second term of 10 years. I award the nominal sum of $20.00 for any blot on title that a prudent purchaser might take into account for the presence of this lease of 6 hectares on the holding of almost 12,000 hectares. In awarding this nominal amount I take into account that the grant or renewal of the lease does not create any estate or interest in the land (i.e. the property) and there is no actual endorsement on the background title document. [11] In making this determination I take into account that the only viable use of the land is low intensity grazing. Not all of the land can be disturbed under the environmental conditions, and it is usual that the balance land is available for pasturage. The lease has been in existence since 1 November 1994 but no mining has taken place to date. I consider the effect of mining operations on this lease would have some minor effect on the operations conducted on the property for at least half a year. This effect would include the noise of machinery and the movement of people and vehicles on or about the lease area and 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. -- 3 of 4 -- [12] This determination will reflect the level of usage of the surface of the lease by the miner against the right of the landowner to receive compensation and place the landowner in as near a position that a monetary award can as if the lease did not exist. There is no evidence to suggest that a reasonable prudent purchaser would do any more than note that a small lease would exist on the property for 10 years or less, or that any significant adjustment would be made for the “blot on title”. However, I award a nominal sum of $20.00 to reflect the existence of the mining title. [13] 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 award compensation under s. 281(3) of the Mineral Resources Act 1989, to satisfy all heads of compensation set forth in subsection 3 of s. 281 of the Mineral Resources Act 1989, in the sum of $8.00 per annum per hectare for 6 hectares (i.e. $480.00 for the term of the lease.). I award the additional sum of $20.00 for access to the lease and a further $20.00 for blot on title. The aggregate total of these awards is $520.00. I further award the sum of $52.00 under s. 281(4)(e) to reflect the compulsory nature of the action taken under this part . I see no cause to increase the award under this section above 10%. [14] 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 consider payment should be by way of a lump sum. [15] I order that the miner Ross Gordon Coveney pay total compensation to the landowner Donald G Lloyd and Anne E Lloyd in the sum of $572.00 within a period of two (2) months from notification of renewal of the mining lease by the Mining Registrar. [16] The respondent landowner seeks to recover the sum of $200.00 being his cost in preparation of his response and assessment of compensation. Given the nature of this matter and the material prepared by the valuer and submitted by the landowner’s representative, I have no dispute with the quantum of this claim. There have obviously been instructions, research and preparation. However, it is the current practice of the Tribunal to not award such costs as “loss or expense”, such costs being in “preparation” of the claim and not being damages or loss arising “as a consequence” of the grant or renewal of the lease (Sullivan v Oil Co of Aust Ltd & Anor [2003] QCA 570). The claim for costs is refused. -- 4 of 4 --