Dempster v Martyr [2004] QLRT 107

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re I.G. Dempster & Anor & G.J. Martyr [2004] QLRT 107 PARTIES: Ian Gilbert Dempster and Sydney Douglas Cuddy (Applicants) and Graham James Martyr (Respondent) FILE NO/S: MLC41/04 PROCEEDING: Application for determination of compensation DELIVERED ON: 12 October 2004 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBERS: Koppenol P ORDER/S: 1. Compensation payable by the miners to the landowner determined at $5 per hectare per year. (at [7]) 2. The first payment is to be made within1 month of the grant of the mining lease and annually thereafter until the expiry of the lease. (at [7]) CATCHWORDS: MINING – MINING LEASE – DETERMINATION OF COMPENSATION Mineral Resources Act 1989, s. 281(3) & (4) COUNSEL: N/A SOLICITORS: N/A AGENT/S: N/A Application [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 landowner of the grant of a mining lease. [2] The mining lease relates to a 8.52ha area of land for the open cut mining of opals on a large grazing lease in the Winton district. -- 1 of 3 -- [3] Section 281(3) and (4) of the MRA provide as follows: “281 Determination of compensation by tribunal … (3) Upon an application made under subsection (1), the tribunal shall settle the amount of compensation an owner of land is entitled to as compensation for— (a) in the case of compensation referred to in section 279— (i) deprivation of possession of the surface of land of the owner; s 281 240 s 281 Mineral Resources Act 1989 (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; and (b) in the case of compensation referred to in section 280 [Compensation for owner of land where surface area not included]— (i) diminution of the value of the land of the owner or any improvements thereon; (ii) diminution of the use made or which may be made of the land of the owner or any improvements thereon; (iii) all loss or expense that arises; as a consequence of the grant or renewal of the mining lease. (4) In assessing the amount of compensation payable under subsection (3)— (a) where it is necessary for the owner of land to obtain replacement land of a similar productivity, nature and area or resettle himself or herself or relocate his or her livestock and other chattels on other parts of his or her land or on the replacement land, all reasonable costs incurred or likely to be incurred by the owner in obtaining replacement land, the owner’s resettlement and the relocation of the owner’s livestock or other chattels as at the date of the assessment shall be considered; (b) no allowance shall be made for any minerals that are or may be on or under the surface of the land concerned; (c) if the owner of land proves that the status and use currently being made (prior to the application for the grant of the mining lease) of certain land is such that a premium should be applied—an appropriate amount of compensation may be determined; (d) loss that arises may include loss of profits to the owner calculated by comparison of the usage being made of land prior to the lodgment of the relevant application for the grant of a mining lease and the usage that could be made of that land after the grant; (e) an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount, together with any amount determined pursuant to paragraph (c), shall be not less than 10% of the aggregate amount determined under subsection (3). ... ” [4] The miners said that the landowner agreed 4 years ago in another case to accept compensation of $5 per hectare per year, so as to avoid litigation. They submitted that because the property was sparsely vegetated, it had only limited grazing potential and had no permanent waters in the vicinity of the mining lease area. An affidavit of Mr Dempster supported those submissions. A sum of only $1 per hectare per year was said to be reasonable. The mining lease term here is 10 years. [5] The landowner submitted (without any supporting evidence) that $20 per hectare per year, plus GST, should be awarded, having regard to the property damage and stock losses that result from mining. They also drew my attention to a 1992 decision of the -- 2 of 3 -- mining warden which awarded $5 per hectare per year in relation to a property in this area. [6] I accept that there is only limited grazing potential in the area of the mining lease. However I regard a figure of only $1 per hectare as insufficient compensation, given previous agreements and the mining warden’s previous determination. [7] In all of the circumstances, I determine the compensation (including the section 281(4)(e) additional 10%) payable by the miners to the landowner at $5 per hectare per year. The first payment is to be made within 1 month of the grant of the mining lease and annually thereafter until the expiry of the lease. -- 3 of 3 --