Atfield v NBT Pty Ltd Trust as TTE [2005] QLRT 4

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: L.R. Atfield v NBT Pty Ltd Trust as TTE [2005] QLRT 4 PARTIES: Leigh Robert Atfield (Applicant) & NBT Pty Ltd Trust as TTE (Respondent) FILE NO/S: MLC115/04 PROCEEDING: Application for determination of compensation DELIVERED ON: 7 January 2005. Revised on 10 February 2005. DELIVERED AT: Brisbane HEARING DATE: Heard on the papers MEMBER: Windridge MR ORDER/S: 1. I determine compensation in the sum of $90.00. (at [10]) 2. I award an additional amount of $9.00 in accordance with section 281(4)(e). (at [10]) 3. I direct that the miner pay the total compensation in the sum of $99.00 to the landowner within 1 month of notification of renewal of the mining lease by the Mining Registrar. (at [11]) 4. No order for costs. (at [12]) CATCHWORDS: MINING LEASE RENEWAL – DETERMINATION OF COMPENSATION Mineral Resources Act 1989, s.281 COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: N/A [1] The applicant Leigh Robert Atfield (the miner) seeks the renewal of Mining Lease 20277 in the Mareeba District. The lease was initially granted for a period of 5 years from 19 December 1996. It appears there has been some difficulty in finalising a compensation agreement for the renewal period due to the death of one of the partner landowners, and the sale of the property since. It is assumed that the renewal is for a period of five years, similar to the initial term. The application for renewal was lodged at the office of the Mining Registrar Mareeba on 3 September 2001. -- 1 of 3 -- [2] The lease the subject of the renewal application is situated on Lot 4567 on PH1696, Parish Groganville, County Chelmsford, Lot 4301 on PH822, Parish Woolburra, County Wrotham, County of Chelmsford, Parish of Groganville, with access through Lot 4301 on PH822, Parish Woolburra, County Wrotham, located about 24.7 kilometres north east of Bellevue Station. A grazing operation is conducted on the property by the current owners. The lease is over an area of 5.44 hectares and is granted for the purpose of mining for gold by use of a dredge. For the purpose of this determination, I round off the area to 6 hectares on the basis of ease of calculation. This rounding off also acknowledges and makes allowance for the small camp area which would occupy some land on the stream bank adjacent to the lease area. [3] Section 281(1) 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 with the Registrar and the miner, by a letter dated 3 September 2004 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 section 281 subsections 3 and 4 of the Act. Although section 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. Neither party filed statements. The applicant miner, in his letter dated 3 September 2004, outlined the reasons for the delay. The penultimate paragraph of that letter referred to the original recommendation of the Mining Warden dated 20 September 1996. I have had the advantage of refreshing my memory by referring to that recommendation for background material and factual information. In these reasons I refer to the salient points but not all the evidence that I relied upon in making my determination. [6] The “facts and circumstances” unique to this matter relate to the location of the lease and the method of mining. The operation is a dredging operation and as such is conducted in the bed of the stream. Operations can only be conducted when water is available in sufficient volume from stream flow or held by a retaining wall. [7] Taking into account the heads of claim under section 281 subsection 3, I find that (a) deprivation of possession of the surface land would be nominal; (b) diminution of the value of the land is not a factor as the “land” the subject of the lease is alluvium in the stream bed; that diminution of the use of the land would be nominal; and that there is no severance of any part of the land from any other part of the land by the lease. There is no evidence to suggest that there is any loss from surface rights of access, or any other loss or expense arising as a consequence of the renewal of this mining lease. -- 2 of 3 -- [8] In summary, there was no evidence called to support any claim under any head of compensation, nor was any matter raised which would necessitate consideration under subsections 3 and 4 of section 281 of the Act. [9] In making this determination I take into account that the only viable use of the land is low intensity grazing on the adjoining stream banks. I consider the effect of mining operations on this lease would have a minimal effect on the operations conducted on the property. There is no severance and I make no allowance for injurious affection of the balance of the property. [10] 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 determine compensation under Part 281 of the Mineral Resources Act 1989, to satisfy all heads of compensation set forth in subsections 3 and 4 of section 281 of the Mineral Resources Act 1989 shall be the sum of $3.00 per annum per hectare (i.e. $18.00 per year) for the term of the renewal in relation to the land in the lease. Compensation awarded is $90.00 (6ha x $3.00 per ha x 5 years). I award 10% of that determination to reflect the compulsory nature of the action taken under this part (section 281(4)(e). Total compensation awarded is $99.00. [11] In relation to the terms, conditions and times when payments should be made, I take into account the size of the lease, the quantum of the award and the period of renewal. In these circumstances, I consider payment must be in advance for the period of the term of the renewed lease. I order that the miner pay total compensation to the landowners in the sum of $99.00 within a period of one (1) month from notification of renewal of the mining lease by the Mining Registrar. [12] Neither party has sought an order for costs and in this matter it is not appropriate that costs be awarded. Postscript: This revised award amends paragraph 2 by inserting the additional real property description (as underlined) which was not made available to the Tribunal in the first instance. A computer printout of the location is not reflective of the position of the lease “on the ground”. However, this does not change the overall area of the lease and the final orders are not amended in any way. -- 3 of 3 --