Atkinson v Warner [2003] QLRT 86

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: D. Atkinson & Ors v S. & P. Warner [2003] QLRT 86 PARTIES: In the Matter of Mining Lease 60117 – Application by David, Jack and Tiffany Atkinson for determination of compensation payable to Shane and Peta Warner. FILE NO/S: MLC00060/2003 PROCEEDING: Application for determination of compensation DELIVERED ON: 28 August 2003 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Kingham DP ORDER/S: 1. I determine compensation under s. 281(3) in the sum of $44.67 (at [16]) 2. In accordance with s. 281(4)(e), I award an additional amount of $4.46 (at [16]) 3. I direct that the miners pay the total compensation of $49.13 to the landowners within 1 month of the commencement of the renewed term of the mining lease (at [16]) CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION – UNIMPROVED VALUE – WATER – PREVIOUS IMPROVEMENTS Mineral Resources Act 1989, ss 50, 276, 281(3)&(4) Land and Resources Tribunal Act 1999, s.50 Atkinson v Warner [2002] QLRT 18, applied White v Warner [2003] QLRT 40, applied Barry & Barrett [2002] QLRT 2, applied Northern Safecorp Consultants Pty Ltd & G Bellino v DP & JM Parsons [2001] QLRT 20, applied COUNSEL: N/A SOLICITORS: N/A AGENTS: N/A -- 1 of 5 -- Background [1] The Applicants, David, Jack and Tiffany Atkinson (“the miners”), applied on 22 May 2003 to renew Mining Lease 60117 in the Quilpie mining district over a 1.5ha parcel of leasehold land on the property known as “Bingara” held by the Respondents, Shane and Peta Warner (“the landowners”). The mining lease authorises mining for opal. The lease was granted on 27 January 1994. The current term expires on 31 January 2004 but continues until the application to renew the lease has been determined. The mining lease cannot be renewed until compensation has been agreed between the parties or determined by the Tribunal. The landowners and the miners have not agreed upon compensation and the miners applied to the Tribunal for determination of compensation. [2] Both parties were unrepresented and the application was heard on the papers. Neither party relied upon expert evidence regarding the impact of the proposed mining on the value of the land. Both parties filed statements, supporting material, and written submissions. In determining compensation, I have taken into account all of that material and the maps and documents provided to the Tribunal by the Mining Registrar. In considering the likely impact, I have drawn upon my personal observations of operations on opal mining leases. I have also considered the environmental and mining conditions with which the miner will be required to comply.1 In these reasons I refer to the salient points but not all the evidence that I relied upon in making my findings. Compensation claims [3] The miners proposed total compensation of $18.33 calculated as follows: Loss in value of land affected by the lease (1.5ha x $33.35 discounted by 33.33%) $16.67 plus 10% for compulsory nature of grant $ 1.66 TOTAL $18.33 [4] The landowners claimed that compensation on the basis of $326.87 per ha calculated as follows: Loss of stock $222.00 Cost of re-muster $ 57.94 Cost of extra insurance $ 1.37 Cost of degradation $ 24.30 Cost of production loss $ 21.26 TOTAL $326.87/ha/yr They also claimed $630 for the expense incurred in the preparation of the compensation claim calculated as follows: 30 hrs landowners’ time @ $20/hr $600.00 phone calls & faxes $ 20.00 1 Section 276 MRA, Environmental Authority No. M3668 and Code of Environmental Compliance for Mining Lease Projects. -- 2 of 5 -- photocopying & postage $ 10.00 $630.00 Compensation principles [5] Section 281(3) & (4) of the Mineral Resources Act 1989 (the Act) define the landowners’ entitlement to compensation and list a number of matters that must be considered by the Tribunal in assessing compensation. I have adopted the approach generally taken by the Tribunal in such matters. That is that the matters set out in the section are concepts to be taken into account in determining compensation, rather than heads of compensation requiring separate and discrete treatment to arrive at an accumulated figure. In determining compensation, the overriding principle is of equivalence, ensuring that, so far as money can do it, the landowner is placed in the same position as if the mining lease was not granted. Discussion of compensation [6] I have previously determined compensation for a mining claim on this property held by one of the miners (the Atkinson determination).2 I have also recently determined compensation in relation to another mining lease on this property (the White determination).3 The material submitted by the landowners in this case is in similar terms to the material submitted in support of the White determination. In relation to the Atkinson determination, I note that activities authorised by a mining claim are more restricted than those authorised by a mining lease and, therefore, the impacts of a mining claim are likely to be less significant.4 This affects the compensation payable and has been taken into account in my determination in this matter. [7] On the basis of the evidence before me, as in the Atkinson and the White determinations, I have adopted the figure of $13.34 per ha as the value of the property overall.5 As in the White determination, I accept that the per ha value of a property can vary markedly over a property because of vegetation types and, therefore, stocking capacities. On the evidence, I accept the landowners’ contention that the per ha value for the paddock in which the lease is situated is higher, because this paddock has a stocking ratio three times higher than other areas of the lease. That this paddock has a higher than average value is supported by evidence regarding the vegetation type and by an independent assessment of its stocking ratio. The landowners have not tendered any valuation evidence to support the figure they put forward of $42.18 per ha for this paddock. No evidence has been tendered to establish that a three fold stocking ratio directly equates to a three fold value based on the average per ha value, as those areas with a lesser stocking ratio must, of necessity, have a value below the average per ha value. In the absence of any cogent evidence of the per ha value of this paddock, I have adopted a figure that equates to 2.5 times the average per ha value of the property. That is $33.35. I consider that is a reasonable basis for determining compensation and I have adopted that figure in considering the impact of the mining lease on the value of both the lease area and the paddock. 2 Atkinson v Warner [2002] QLRT 18. 3 White v Warner [2003] QLRT 40. 4 Sections 50, 235, 236. 5 Atkinson v Warner op cit at para [5], White v Warner op cit at para [9]. -- 3 of 5 -- [8] The landowners produced information regarding the impact of mining on ewes and lambing and I have accepted that in determining compensation. Given the ten year term of the lease, I have applied a discount of 50% to the loss of value taking into account that a hypothetical prudent purchaser would assume that the entire area of the lease was unavailable for that term.6 My determination of compensation, therefore, includes the sum of $25 calculated on the basis of a loss of 1.5ha at $33.35 per/ha discounted by 50%. [9] I accept that the impact on the land will extend beyond the claim area. The landowners submitted that, as a general proposition, the area made redundant by mining is four times the area taken out by the mining lease. In other cases, I have operated on the assumption that a 1ha lease can have an impact over the surrounding 5ha. In this case, taking into account the number of other mining tenements surrounding this lease, I have adopted the landowners’ formula of 4ha for each ha. [10] However, I do not accept that that area is rendered totally redundant. Nor, it appears, do the landowners who adopted a figure of based on 12% of the value of the area they claim is rendered redundant, not 100%. I do not accept that is a reasonable figure and, instead, have included in my determination a sum calculated on the basis of a 5% loss in value over a 6ha area (1.5ha x 4) at a per ha value of $33.35, discounted by 50%. That is the amount of $5. In arriving at this figure I have taken into account the landowners’ evidence regarding the number of tracks which lead to this lease, regardless of which is said to be the official access track. [11] The miners submitted that no amount should be included for access as the route used is the same route as that used for access to David Atkinson’s mining claim. In the Atkinson determination, I included a sum of $10 for the impact of the lease on the surrounding land, including the access route. I do not accept the miners’ submission that no amount for access should be included in this award. There is no evidence from the miners about the extent of traffic on the access road. In the absence of evidence to the contrary, I consider it reasonable to assume that there will be some use related to the mining lease that is additional to David Atkinson’s use of the access for his mining claim. Consistently with the approach adopted in the White determination, I have included in the award the sum of $4.67. [12] This reflects a 5% loss in value, discounted by 50% for the 10 year term, over a 14ha area (2.8km long x 5m wide) at a value of $13.34/ha. I have adopted the lower per ha value because most of the access falls outside the paddock and there is no other evidence of its particular value. I consider this to be generous given 2.7km of the access road is used by the landowners as well as other miners, and that the landowners have also received some compensation for the access road from other miners, including David Atkinson. I have taken into account the landowners concern about erosion and environmental degradation from the access road. I have also taken into account that the landowners are concerned about their potential liability for the road and that they have incurred further public liability insurance costs. However, I note the advice of the local authority that the “actual likelihood” of liability is “low”. 6 The 33.33% discount figure adopted in the Atkinson determination and the White determination reflected the shorter term of 5 years sought in those cases. -- 4 of 5 -- [13] I consider it appropriate to include in the award some amount for the impact that the renewal of the mining claim will have on the value of the property as a whole. I have taken into account that the property was already significantly affected by mining when the landowners purchased it. I have also taken into account that this mining lease predated the purchase. Nevertheless, I consider the renewal of the claim will involve a further blot on the title, as it extends the term of the mining. I have included a nominal sum ($10.00) in the award. [14] It appears that the mining lease will not cause severance and accordingly no allowance for that has been made. [15] The landowners claimed $630 for preparation costs comprised of a fee for their time plus some outgoings. Whilst professional legal and valuation fees incurred in formulating a claim for compensation can be claimed as a disturbance item for compensation purposes, fees incurred by the landowners personally in presenting the case before the Tribunal cannot.7 Such costs are dealt with by s. 50 of the Land and Resources Tribunal Act 1999, which enables the Tribunal to award costs in special circumstances. No such special circumstances have been established. In any case, I have previously decided that the costs that may be awarded as costs of the proceeding are confined to legal costs.8 Accordingly I have not included any of the preparation costs in my formulation of compensation nor have I made any order as to costs of this proceeding. Determination of compensation [16] Taking into account the matters set out above, I determine compensation under s. 281(3) in the sum of $44.67. In accordance with s. 281(4)(e), I award an additional amount of $4.46, which is 10% of the compensation determined above, to reflect the compulsory nature of the grant of the mining claim. The total compensation payable for the full term of the lease is $49.13. I direct the miners to pay that sum to the landowners within 1 month of the commencement of the renewed term of the mining lease. 7 Barry v Barrett [2002] QLRT 2 at para [35]. 8 Northern Safecorp Consultants Pty Ltd & G Bellino v DP & JM Parsons [2001] QLRT 20 at para [9]. -- 5 of 5 --