Atkinson v Warner [2002] QLRT 18

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: David Atkinson v Shane and Peta Warner [2002] QLRT 18 PARTIES: In the Matter of Mining Claim 60019 – Application by David Atkinson for determination of compensation payable to Shane and Peta Warner. FILE NO/S: MCC00117/2001 PROCEEDING: Application for determination of compensation DELIVERED ON: 18 April 2002 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Kingham DP ORDER/S: 1. I determine compensation under s. 85(7) in the sum of $23.35 at [13] 2. In accordance with s. 85(8)(e), I award an additional amount of $2.35. at [13] 3. I direct that the miner pay the total compensation to the landowner within 1 month of the commencement of the renewed term of the mining lease. at [13] CATCHWORDS: MINING CLAIM – DETERMINATION OF COMPENSATION Mineral Resources Act 1989, ss. 50, 81, 85, 93, 235, 236 Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111 Horn v Sunderland Court [1941] 2 KB 26 Hughes v Doncaster Metropolitan Borough Council [1991] 1 AC 382 Wills v Minerva Coal, unreported decision of the Land Court 27 November 1998 Zimmerebner v Hawkins & Anor (1999) 20 QLCR 71 COUNSEL: N/A -- 1 of 5 -- SOLICITORS: N/A AGENTS: N/A JUDGMENT and REASONS Background [1] The Applicant, David Ian Paul Atkinson (“the miner”), applied on 3 December 2001 to renew Mining Claim 60019 in the Quilpie mining district over a 1ha parcel of leasehold land on the property known as “Bingara” owned by the Respondents, Shane and Peta Warner (“the landowners”). The mining claim authorises mining for opal. This is the second application to renew this mining claim, which was commenced on 1 July 1992 and was renewed for a second term of five years commencing on 1 July 1997. The current term expires on 30 June 2002. The miner has sought a further five-year term. The mining claim cannot be renewed until compensation has been agreed between the parties or determined by the Tribunal.1 The landowners and the miner have not agreed upon compensation and the miner applied to the Tribunal for determination of compensation.2 [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 that material and the maps and documents provided to the Tribunal by the Mining Registrar. 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 landowners sought a sum of $40. The method of calculation of that figure was not disclosed, although reference was made to other compensation agreements regarding opal mining in the vicinity. The miner submitted that the sum claimed was excessive. Whilst he did not specify what amount would be appropriate, he did provide some information about the value of the property and rates and rents paid by the landowners to the local council and to the Department of Natural Resources and Mines (DNRM) in relation to Bingara. 1 s 93(3) Mineral Resources Act 1989 (MRA). 2 s. 85(5) MRA. -- 2 of 5 -- Compensation principles [4] Section 85(7)&(8) of the Mineral Resources Act 1989 (the Act) defines the landowner’s entitlement to compensation and lists a number of matters that must be considered by the Tribunal in assessing compensation. I have adopted the approach taken by Mr Scott in the Land Court in Wills v Minerva Coal.3 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.4 Evidence [5] Both parties provided only scant evidence of value and impact and much of the material submitted consisted of assertions not verified by reference to any sworn evidence or documentation. The most cogent and reliable evidence is that as to the value of the property disclosed in a BLIN – Queensland Valuation and Sales Enquiry report for the property produced by the DNRM and provided by the miner. This revealed that the leasehold interest in the property was purchased by the landowners on 22 August 2001 for $1,300,000. As the size of the property is 97,400ha, the “per ha” value is $13.34. The landowners did not present any evidence of value. In determining compensation, therefore, I have adopted the figure of $13.34. [6] In considering the likely impact, I have drawn upon my personal observations of operations on opal mining claims. I have also considered photographs of the claim area provided by the miner and the environmental and mining conditions with which the miner will be required to comply.5 [7] The landowners referred to compensation agreements negotiated for a number of opal mining leases in the area. However, no information was provided about how those amounts were arrived at, the location of the leases or the value of the land 3 Unreported decision of the Land Court 27 November 1998. This is consistent with the authorities dealing with compulsory acquisition of land, including Hughes v Doncaster Metropolitan Borough Council [1991] 1 AC 382 and Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111. 4 Horn v Sunderland Court [1941] 2 KB 26 at 43 per Jacobs J. 5 s 81 MRA, Environmental Authority No. MC 60019 and Code of Environmental Compliance for Mining Claims. -- 3 of 5 -- upon which they are located. This restricts the use that I might otherwise make of the agreements. I also note that activities authorised by a mining claim are more restricted than those authorised by a mining lease and, therefore, the impacts are likely to be less significant.6 This affects the compensation payable. [8] The landowners asserted that they have been required to increase their insurance cover to prepare for accidents involving miners, tourists and visitors travelling to mines. I accept the miner’s submission that s. 397 of the Act limits the landowners’ liability. I have taken into account the information provided by both parties about impacts on the property by mining and use of access roads and other facilities and the information provided by the miner about maintenance of those facilities. Discussion of Compensation [9] As indicated above, the evidence establishes that the landowners assessed the value of the land at $13.34 per ha, when they purchased the lease last year. Whilst the landowners stated that the mining causes much disruption to ewe behaviour, no specific information was provided nor any attempt made to relate this back to the amount of compensation sought. No evidence was given by the landowners of stocking rates or how they are affected by mining. Based on my own observations, I accept that mining will affect the use that can be made of this small parcel of land. I have also taken into account photographs of the claim area, including those illustrating revegetation and the miner’s obligation to rehabilitate.7 I have endeavoured to assess the view that a hypothetical prudent purchaser would have of the value of the land, given the proposed mining. To do so, I have adopted a formula of 25% of the value of the mining claim area for the impact on the claim area.8 [10] I accept that the impact on the land will extend beyond the claim area and include impacts caused by use of access roads. In determining the degree of impact, I note that this claim is surrounded by a number of other mining tenements. I also take into account the miner’s evidence regarding maintenance of access tracks. I consider the sum of $10 is a reasonable figure for compensating for this impact, 6 ss 50, 235, 236. 7 Environmental Authority No. MC 60019 and Code of Environmental Compliance for Mining Claims. 8 This formula was used by President Trickett of the Land Court in assessing the impact of gem mining on a grazing property in Emerald in Zimmerebner v Hawkins & Anor (1999) 20 QLCR 71. -- 4 of 5 -- including surface rights of access. This is approximately 3% of the value of 5 ha of land per year for the five-year term of the lease. [11] 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 claim 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 in the award. [12] It appears that the mining claim will not cause severance and accordingly no allowance for that has been made. The landowners did not claim that any specific loss or expense, such as professional costs, arose as a result of the grant and accordingly no allowance for such costs has been made. Determination of compensation [13] Taking into account the matters set out above, I determine compensation under s. 85(7) in the sum of $23.35. In accordance with s. 85(8)(e), I award an additional amount of $2.35 (rounded up from $2.33), which is 10% of the compensation determined above, to reflect the compulsory nature of the grant of the mining claim. The total compensation payable is $25.70. I direct the miner to pay that sum to the landowner within 1 month of the commencement of the renewed term of the mining lease. -- 5 of 5 --