Fazzari v Mount Margaret Pty Ltd [2004] QLRT 29

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re F. Fazzari v Mount Margaret Pty Ltd [2004] QLRT 29 PARTIES: In the matter of Mining Lease 60069 – Application by Frank Fazzari for determination of compensation payable to Mount Margaret Pty Ltd FILE NO/S: MLC00188/2003 PROCEEDING: Application for determination of compensation DELIVERED ON: 18 March 2004 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers MEMBER: Windridge MR ORDER/S: 1. I determine compensation under s. 281 in the sum of $ 170.00 (at [13]) 2. I award an additional amount of $17.00 in accordance with s. 281(4)(e). (at [13] 3. I direct that the miner pay the total compensation in the sum of $187.00 to the landowner within 2 months of notification of renewal of the mining lease by the Mining Registrar. (at [15] 4. No order for costs. (at [16]) CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION Mineral Resources Act 1989, s. 85(1) & (7) S.P. White v Warner [2003] QLRT 40 Smith v Cameron [1986-87] 11 QLCR Shaw v Heritage Holdings Pty Ltd [1992]93] 14 QLCR COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: N/A -- 1 of 4 -- [1] The applicant Frank Fazzari (the miner) seeks the renewal of Mining Lease 60069 in the Quilpie District. The lease was initially granted for a period of 10 years commencing from 1 July 1993. The application for renewal for a term of 5 years was lodged at the office of the Mining Registrar Quilpie on 20 June 2003. [2] The lease is located on Mount Margaret Holding which is more particularly described as Lot 447 on PH895, Parish of Tuna, County of Windula. Access is through the same property. A grazing operation is conducted on the property by the current owners Mount Margaret Pty Ltd. The lease is over an area of 2.90 hectares and is granted for the purpose of mining for opal. For the purpose of this determination, I round off the area to 3 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 with the Registrar and the miner, by a letter dated 8 December 2003, 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. Attempts by the Senior Case Officer to have the landowner file submissions were not successful. Neither party filed statements or other supporting material. Some documentation in relation to factual matters i.e. a copy of the renewal application, location map and tenure search 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] There was no formal valuation evidence to consider, therefore the Court does not have that assistance in arriving at a determination. Due to the small area involved, the cost of a valuation would far outweigh any award for compensation. The miner states that the landowner was not requesting “financial compensation” but undertakings in relation to rehabilitation. In these matters, the Tribunal can only award financial compensation. Rehabilitation of the lease post mining is governed by the Environmental Licence. [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 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 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 limited -- 2 of 4 -- evidence from the documentation provided by the Registrar to consider. Other determinations for leases on this property over a number of years have varied between $5.00 and $10.00 per hectare. [8] In summary, there was no evidence called to support any claim under any other head of compensation, nor was any matter raised which would necessitate consideration under paragraphs (a), (c), (d), or (e) of subsection 4 of section 281 of the Act. [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. Access is in all probability a track that is used by any number of persons who have leases, claims or prospecting tenures in the area. I award a nominal sum of $10.00 in relation access to the claim. [10] The term of the renewal is 5 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 3 hectares, and the term of the renewed lease is 5 years. There is no permanent acquisition. I award the nominal sum of $10.00 for any blot on title that a prudent purchaser might take into account for the presence of this lease on the holding. 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. The lease has been in existence since 1 July 1993. 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. [12] However, I take note that the total area of the lease is 2.90 hectares. Operations would be either over the whole area or a significant part of the area. This effectively bars the landowner from access to any part of the lease for grazing purposes by stock. It is not the usual event that the mining lease is fenced to keep stock out, and it is common practice for the balance of the lease not disturbed by mining to be left available for grazing by stock and native fauna. However, in this instance, very little if any of the lease surface area would be available for use by stock. The landowner has effectively lost control of those 3 hectares for the duration of the term, and is not able to produce any income from those 3 hectares for 5 years. 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. Whilst it is open to find that as longer term over a larger area might affect quantum, shorter terms over smaller areas are probably more of a nuisance to the landowner, and a higher award is often justified, if only to bring the quantum of the award to a reasonable figure. -- 3 of 4 -- [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 determine compensation under Part 7 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, shall be the sum of $10.00 per annum per hectare for 3 hectares. I award the additional sum of $10.00 for access to the lease and a further $10.00 for blot on title. The aggregate total of these awards is $170.00. I further award the sum of $17.00 under s. 281(4)(e) to reflect the compulsory nature of the action taken under this part [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 Frank Fazzari pay total compensation to the landowner Mount Margaret Pty Ltd in the sum of $187.00 within a period of two (2) months from notification of renewal of the mining lease by the Mining Registrar. [16] Neither party has sought an order for costs and in this matter it is not appropriate that costs be awarded. -- 4 of 4 --