Angela Mining Pty Ltd & Philipson, Re [2004] QLRT 150

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Angela Mining Pty Ltd & Philipson [2004] QLRT 150 PARTIES: Angela Mining Pty Ltd (Applicant) & Ron Philipson and Leanne Philipson (Respondents) FILE NO/S: MLC66/03 PROCEEDING: Application to determine compensation DELIVERED ON: 10 December 2004 DELIVERED AT: Brisbane HEARING DATE: 18-21 May 2004 (Charters Towers, “Cornubia”) 9 August 2004 (Brisbane) PRESIDING MEMBER: Koppenol P ORDER/S: 1. Compensation determined at $220. (at [14]) 2. Such compensation to be paid by the miner to the landowner in annual instalments of $22, with the first payment (including arrears from 31 July 2002) to be made within 14 days of the renewal of the mining lease. (at [16]) CATCHWORDS: COMPENSATION – RENEWAL OF MINING LEASE (GOLD/SILVER) – GRAZING PROPERTY Mineral Resources Act 1989, s.281 Mineral Resources Regulation 2003, s.18(b) COUNSEL: N/A SOLICITORS: N/A AGENT/S: Mr C. Chadwick, director of Angela Mining Pty Ltd for the Applicant Mrs L. Philipson for the Respondents 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 renewal of the applicant’s mining lease. -- 1 of 4 -- [2] The mining lease is over a small area (2ha) of the landowners’ cattle property about 111km south-west of Charters Towers. The lease was granted in 1992 to mine gold and silver by open cut method using an alluvial processing plant. It expired on 31 July 2002 and is sought to be renewed for 10 years. [3] This application was required to be heard by the Tribunal because the parties could not agree on the amount of compensation payable. It was heard by a deputy president of the Tribunal earlier this year but he subsequently became (and remains) ill. I recently decided (with the consent of the parties) that I would finalise this matter on the basis of the material already before the Tribunal and any additional submissions that the parties desired to make. No expert valuation evidence was adduced. 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: The miner intends to fence the operations at 1ha at a time. The other 1ha will be able to be used by the landowners to graze their cattle, as will a large part of the balance of the property area of 31,100ha. The landowner claims the sum of $494 ($247/ha x 2) on the basis that a total loss of the land will result. The suggested rate of $247/ha was advanced by analogy with the recent sale price of a nearby comparable property. However whilst cattle will not be able to enter the fenced area for up to 5 years, they will have access to the unfenced area during that period. The total loss analogy is therefore inapt. In the circumstances, no more than a nominal sum of $100 is justified for this item, in my view. [8] Diminution of value: The landowners again claimed $494 ($247/ha x 2). However the mining lease existed on this land when it was purchased by the landowners. Its -- 2 of 4 -- existence would doubtless have been factored in to the purchase price. I therefore cannot see any basis for awarding any amount for this item. [9] Diminution of use: Apart from their being partially deprived of possession of this land—an issue addressed earlier, there is no evidence that the landowners will be detrimentally affected by the renewal of this mining lease. No basis has therefore been demonstrated for any additional award for this item. [10] Severance: The subject land has not been severed. This item therefore does not apply. [11] Surface rights of access: Two points were advanced by the landowners. They related to the presence and control of noxious weeds and the disruption said to be caused to cattle mustering. As to the former, the miner has clear legal obligations under the Mineral Resources Regulation 2003 (section 18(b)) and the Environmental Protection Agency’s code of environmental compliance for mining lease projects (condition 13) to prevent the spread of noxious weeds. Penalties apply for non- compliance. As to the latter, whilst heavy machinery will initially be delivered to the mine site via the access track along the relevant fence line (where cattle are mustered), subsequent traffic will only be light. It is also relevant to note that the miner was given permission by the station manager to use that track. On the material advanced by the parties, I am not satisfied that the impact on the property or on cattle mustering in the area concerned will be other than minimal. In the circumstances, no more than a nominal sum of $100 is justified for this item, in my view. [12] Loss or expense: Three points were advanced by the landowners. They concerned animal protection, road maintenance and weed management. As to the first, the miner has indicated its intention to fence the mining pit and to compensate the landowners for any cattle that may be lost. There is no basis therefore for any present award to compensate the landowners for that. Secondly, access road maintenance is a matter for the miner—and to the extent that the landowners use that road (track), the landowners. I cannot see any basis for an award of compensation for that. Finally, it was submitted that the landowners had incurred expense in eradicating noxious weeds along the access track for which the miner was responsible. However as the miner pointed out, there was evidence that the weeds may have been spread by other causes including fossickers and previous landowners. Having reviewed that evidence, I am not satisfied that the miner was the likely cause. In the circumstances, no basis for any award for this item has been established. [13] Additional 10%: No submissions were made that more than 10% should be awarded. Determination [14] Having regard to the foregoing, I determine compensation as follows: (a) Deprivation of possession (s.281(3)(a)(i)) $100.00 (b) Surface rights of access (s.281(3)(a)(v)) 100.00 $200.00 (c) Additional 10% (s.281(4)(e)) 20.00 Total $220.00 -- 3 of 4 -- [15] Because the recoverable heads of compensation relate to the anticipated effect of the mining lease over the term of the lease, the determined compensation should be paid annually rather than up-front. I will therefore order that such compensation of $220 be paid by the miner to the landowner in annual instalments of $22. The first payment (which will include arrears from 31 July 2002) is to be made within 14 days of the renewal of the mining lease and annually thereafter. Postscript [16] This case illustrates, yet again, the folly of failing to resolve compensation issues by mutual agreement between the parties. The landowners here claimed $2,680 but failed to adduce adequate supporting evidence and succeeded in obtaining only a very small award—albeit some $21.50 more than the miner argued for. Good faith negotiations between the parties may well have resulted in a higher monetary figure being accepted and paid quite some time ago. Instead, the parties engaged in a time- consuming, costly and no doubt stressful battle which, on proper analysis, could only ever have resulted in a modest award of compensation. That can hardly have contributed to a good working relationship between parties who will each be using this land for years to come. -- 4 of 4 --