Boney v Ahlers & Ors [1999] QMW 60

20287CMP.MAR 1 IN THE WARDEN’S COURT OF QUEENSLAND HELD AT MAREEBA IN THE MATTER OF: DETERMINATION OF COMPENSATION PURSUANT TO SECTION 281 OF THE MINERAL RESOURCES ACT 1989 IN RESPECT OF MINING LEASE APPLICATION NUMBER 20287 IN THE MAREEBA DISTRICT BEFORE: MR F W WINDRIDGE MINING WARDEN APPLICANT: Lester David BONNEY, Irene M BONNEY and R K BONNEY RESPONDENT: (1) E V AHLERS & N P, C S, R L, & K V HUGHES (2) D M WILSON DETERMINATION: L D Bonney, I M Bonney and R K Bonney (hereinafter referred to as the applicant miners) are the applicants for a mining lease (No 20287) in the Mareeba District under the provisions of Part 7 of the Mineral Resources Act 1989 (the Act or MRA). The term of the lease is 10 years from the date of grant. The lease is 12.08 hectares in area. The lease cannot be granted until such time as compensation is settled between the parties or determined by this Court (s.279). The miners and the landowners have failed to file an agreement with the Registrar, and therefore the matter has been referred to the Court for a determination. Power to make such a determination is set forth in section 281 of the MRA, and section 281(3) sets forth the matters which must be considered in making that determination. [1999] QMW 60 -- 1 of 4 -- Warden’s Court of Queensland 19 June 1999 20287CMP.MAR 2 The miners seek a term of 10 years over 12.08 hectares for the purpose of mining for gold, silver, molybdenum, platinum, and for the establishment of a treatment plant and tailings dam. The lease straddles two properties. From calculations provided by the Registrar, 5.16 hectares is located on Palmerville Holding and is part of Lot 2 on CF10, Parish of Hurford, County of Chelmsford. Palmerville Holding was, at the time of application, operated by A G T Wilson. AGT Wilson is now deceased, and the current owner is DORIS MAY WILSON. For the purpose of this determination, the area in this part of the lease is rounded off to 5 hectares. This portion of the lease is subject to mining only. The balance of the lease area is located on Groganville Holding and is part of Lot 4567 on PH1696, Parish of Groganville, County of Chelmsford. Groganville Holding is operated by the Ahlers and Hughes families. From calculations provided by the Registrar, 6.92 hectares is located on Groganville Holding. For the purpose of this determination, the area in this part of the lease is rounded off to 7 hectares. This portion of the lease is subject to mining and is also required for access purposes. The hearing was set down for the Wardens Court at Mareeba on 6 May 1999. No person appeared and no written submissions were received. An inspection of the area was conducted on 5 May 1999 in company with the Registrar and an Environmental Officer. It would appear that the land contained in the lease is Class VII and Class VIII, the latter being the alluvial gravels in the creek that the miner intends to mine, according to the EMOS document. While the lease is required for the establishment of a treatment plant and tailings dam, I note that the applicants operate a treatment plant and tailings dams on another lease a short distance away. It is possible it may not be necessary for the establishment of that infrastructure on the new application area. Although no stock were seen in the application area, it appears that a grazing operation is conducted on the properties. The lease application area itself consists of the creek bed and the sides of a steep hill. At its highest use, the land would be suitable for careful pastoral use which is basically low intensity grazing under favourable conditions. -- 2 of 4 -- Warden’s Court of Queensland 19 June 1999 20287CMP.MAR 3 Although section 281 MRA sets out the matters to be considered in arriving at a determination, 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 cause in which event emphasis may shift from one method to another…” See also Smith v. Cameron (1986-87) 11 Q.L.C.R. 64 and Oakhill v Mitchell – Land Court Appeal (unreported) 10 March 1998. The landowners will suffer the loss of the land for a term of 10 years. The loss of land through a lease of this duration has been accepted by the Land Court as similar to permanent acquisition for a limited time (Smith v. Cameron supra). However, given the general nature of the land contained in the application area, the effect of the loss on the landowner will be minimal. In addition, we are hampered by the lack of any evidence of valuation or expert evidence. Given the nature of the land and the size of the lease, this is not unusual as the cost of a valuation would far outweigh the quantum of any determination. I note that similar determinations for similar style of operations on the same properties are in the vicinity of $3.00 to $5.00 per hectare per year. I take into account that mining only will take place on Palmerville Holding, and this mining will be restricted to the creek and gully alluvials. In respect of Groganville Holding, I take into account that apart from some mining in the creek and gully alluvials, access through the property is a further factor of disturbance, and that warrants a premium over and above the disturbance from mining. It must be assumed as a matter of law that the miner will abide by his EMOS commitments. Commitments in the EMOS are regarded as conditions of the lease. Given all the circumstances, I am satisfied that a nominal sum of compensation should be awarded and this sum will adequately compensate for those heads of claim which are set forth in section 281(3) and (4) of the MRA. (Oakhill v. Mitchell supra). -- 3 of 4 -- Warden’s Court of Queensland 19 June 1999 20287CMP.MAR 4 I direct that the miners L D Bonney, R K Bonney and I M Bonney pay to the landowner D M WILSON of Palmerville Holding the sum of $3.00 per hectare per annum in respect of the 5 hectares of the lease located on Palmerville Holding. I direct that the miners L D Bonney, R K Bonney and I M Bonney pay to the landowners E V AHLERS and NP,CS, RL and KV HUGHES the sum of $5.00 per hectare per annum in respect of the 7 hectares of the lease and access located on Groganville Holding. Should this lease application area be assigned either before or after grant, I note that section 281 subsection 6 provides: “(6) An amount of compensation decided by agreement between the parties, or by the Wardens Court or the Land Court on appeal, is binding on the parties and the parties’ personal representatives, successors and assigns.” There is no submission from either party in relation to the times, terms or conditions of payment of compensation. Given the size of the lease and the nature of the operation, it is possible that the miner will complete his mining program and surrender the lease before the expiration of the ten year term. I therefore order that compensation be paid on a yearly basis, the first payment being due within 60 days of notification by the Registrar of grant of the application by the Minister. Dated at Mareeba this 19th day of June 1999. F W WINDRIDGE MINING WARDEN  1999 -- 4 of 4 --