Brinsmead & Vagg, Re [1997] QMW 17

1 DETERMINATION OF WARDEN PURSUANT TO SECTION 281 OF THE MINERAL RESOURCES ACT 1989. IN THE MATTER OF: DETERMINATION OF COMPENSATION PURSUANT TO SECTION 281 OF THE MINERAL RESOURCES ACT 1989 IN RESPECT OF MINING LEASE APPLICATION NO. 60238 AND 60239 IN THE QUILPIE MINING DISTRICT. BEFORE: F.W. WINDRIDGE. WARDEN. APPLICANT/MINER: REGINALD HENRY BRINSMEAD. RESPONDENT/OWNER: JOHN COLIN VAGG. CATCHWORDS: COMPENSATION – MINING LEASE – QUILPIE DISTRICT – KYEENEE HOLDING (CUNNAMULLA) ALTERNATE ACCESS – LAMBING LOSSES – TRESPASS BY OTHERS – REDUCED TERM Mineral Resources Act 1989 s. 281 DETERMINATION. This matter was initially listed for hearing in the Wardens Court at Quilpie on 21 July 1997 but deferred to 22 July 1997 due to the unavailability of air travel. Parties were notified. The applicant miner appeared, did not call evidence but made submissions. The respondent landowner appeared, elected to give evidence under oath and made submissions. This determination will therefore be made on the evidence given, the submissions and information contained in the Registrar's file that relates to the application, together with the knowledge which the court has in relation to methods of opal mining adopted by opal miners in this district and the nature of the country bearing in mind the several other determinations in respect of compensation handed down in recent times for this district. This determination is in respect of the Mining Lease Applications 60238 and 60239 Quilpie. The area of MLA 60238 is 2.9232 hectares. The area for MLA 60239 is 0.8352 hectares. The applicant miner made application for a term of ten years. The leases are required for the purpose of mining for opal, and are located close together on the same property. The parties are the same. Access is along the same track. Therefore the matters were heard together for convenience as I was satisfied that neither party would suffer any disadvantage by adopting that course. The parties have had some negotiations but have been unable to settle the issue. Offers and counter offers have been rejected. -- 1 of 6 -- 2 The grant of the lease is unable to proceed until the matter of compensation is determined or agreed between the parties (section 279). The parties having failed to lodge an agreement in respect of compensation the Wardens Court is authorised to hear and determine compensation. The matters which must be considered by the Court are set out in section 281 (3) and (4) of the Act. The application for the grant of the lease was before the Wardens Court at Cunnamulla on 12 November 1996. The recommendation in favour of grant was handed down on 10 December 1996 by Acting Warden Mr.A Chilcott. The lease applications are located approximately 100 kilometres north west of Eulo on a property known as “Kyeenee” Holding in the Cunnamulla District and the location of the leases is more particularly described as being on Lot 4919 on PH 2151, Parish of BUNDILLA, County of WELLINGTON. The term sought in the initial applications was ten years but at the conclusion of proceedings, Mr. Brinsmead indicated he would voluntarily apply to have the term reduced to five years. For the purpose of this determination, the area of MLA 60238 will be rounded off to 3 hectares, and the area of MLA 60239 will be rounded off to 1 hectare. It appears the landholder conducts a pastoral business on the land, raising both sheep and cattle. I am satisfied that there are no improvements on the lease area. It appears therefore that the activity on the lease will have little or no effect on the operations conducted by the landowner. The landowners main concern appears to be the disturbance which will occur when the applicant miner uses the access through his “lambing paddock”. The applicant miner, in support of his submission, referred to the quantum of other determinations in this area. The applicant miner also produced copies of valuation searches. These show that “Kyeenee” has an area of 31600 hectares and an unimproved valuation of $41,000 at 30 June 1996. This equates to $1.2974 per hectare. For comparison, a property to the immediate south of the subject property named “Jandell” has an area of 41,500 hectares and an unimproved value of $55,000 as at 30 June 1996. This equates to $1.325 per hectare. Mr. Vagg bases his claim on the anticipated loss of lambing production, loss of profit from wool and loss of profit from the sale of sheep and cattle over the ten year term of the lease. He also made reference to damage to improvements, theft of equipment and loss and destruction of stock over a number of years. He seems to seek some recompense from the applicant miner for these losses, and made reference to his dealings with Phoenix Oil some years ago. The majority of the matters referred to by Mr. Vagg were irrelevant to my consideration under Section 281, and despite my request to confine himself to those matters that must be considered, he continued to use the proceedings as an appeal by way of rehearing of the previous application hearing conducted at Cunnamulla, airing old grievances and past arguments. Throughout his evidence he made a number of disparaging remarks about the applicant miner and basically done serious disservice to his own case by not focusing on the issues to be determined by the Court. -- 2 of 6 -- 3 Mr Brinsmead had the courtesy not to resort to similar tactics. I turn now to the individual heads of claim under section 281 of the Mineral Resources Act 1989. (1) deprivation of possession of the surface of the land of the owner. Although the area involved is 4.00 hectares in total, there is no evidence which will allow any quantum to be placed on the land lost to the owner. (2) diminution of the value of the land of the owner or any improvements thereon. There is no evidence that the value of the land will diminish any further or that improvements will be damaged or diminished in value. The total area of the leases is 4 hectares on a property which has a total area of 31,600 hectares. The effect of the grant of these two leases on a prudent willing purchaser would be negligible. (3) diminution of the use made or which may be made of the land of the owner or any improvements thereon. There is evidence from Mr.Vagg that the land is used for general grazing. No improvements are involved. The only real loss will be the area taken for mining and therefore lost to grazing. The photograph evidence tendered by the miner (photos 4 and 5 of Ex. 1) indicates that the terrain of MLA 60236 is iron stone with some scattered trees but no pasture. Other photographs (1,2,3 & 6 of Ex. 1) show the general terrain which consists of broken ground, stony ground and no pasture. Diminution of use of the balance of the land is negligible. (4) severance of any part of the land from other parts thereof or from other land of the owner. There is no evidence that any part of the land will be severed from any other part and no award of compensation can be made under this head of compensation. (5) any surface rights of access. There is obviously going to be some loss of surface rights of access because of the direction of the access. Access is through the same property and no other property is involved. Access is a cause of conflict between the applicant miner and the landowner. The miner indicates that his preferred access, as indicated in his application, initially had the consent of the landowner. This access was along the electricity access to the northern boundary, along that boundary until it met the north south boundary of the lambing paddock, and then along that boundary until it intersected the seismic line, then through the fence in a westerly direction along the seismic line to the lease areas. After hearing the evidence, this still appears to be the preferred access except that Mr.Vagg has changed his mind. The access preferred by Mr.Vagg unfortunately takes the miner through the top of the lambing paddock and will result in disturbance to lambing ewes which is one of Mr.Vaggs major complaints. He is not assisting his own cause by directing the miner onto an access that then results in his major complaint. Another access west along the seismic road from the Quilpie - Eulo Road is possible, except that it cuts across the lambing paddock and the Miner would be required to place an effective crossing where the seismic road crosses a bore drain. Mr. Vaggs concern, and indeed Mr. Brinsmead acknowledged the concern, is that the appearance of use of this road -- 3 of 6 -- 4 would be an attraction for others who would be committing trespass. Unfortunately access to the seismic line is open to others because it runs off the Quilpie - Eulo public road. One other alternative is for the miner to take his access route through Paracoonah Holding which is to the north of Mr.Vagg, along the boundary fence, and then enter Kyeenee through the boundary fence, proceed along the fence on the western side of the lambing paddock until it intersects the seismic line, and then westerly along the seismic line until the lease area is reached. This route completely takes the miner out of the lambing paddock and would not disturb the lambing ewes. This is the major complaint of Mr.Vagg and therefore an alternate access through Paracoonah should be considered by both parties. This will necessitate an application under section 317 by the miner. This route will be longer for the miner but it removes the major cause of concern of Mr.Vagg. Part of the access track to the lease area is along the seismic road, and that road is capable of use without disturbing any fresh surface land of the property. (6) all loss or expense that arises. There is no evidence of any other loss or expense arising from the loss of the land. Mr. Vagg tendered a number of documents relating to his calculations about his anticipated losses. Anticipated losses of this nature are not compensable under this section. To my knowledge, no prior decision of this Court or the Land Court has acknowledged such anticipated losses. Therefore the claims by Mr.Vagg for losses of this nature are rejected. Mr. Vagg seeks the right to re-negotiate compensation if one of the leases is sold. This is not possible because section 281(6) provides that any agreement or determination is binding on all successors and assigns. There is no valuation evidence to consider, and 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, and the cost of the valuation would not be classified as a disturbance item due to the size and location of the leases. I consider the reduction of the term of the lease from 10 years to 5 years will assist Mr.Vagg significantly by halving the period of any disturbance. Mr. Brinsmead indicates that miners generally confine their operations to the April - September period of any year because of the heat. However, Mr. Brinsmead indicates that he will do everything possible to complete the project within 5 years. I also consider that the actions of trespassers cannot be attributed to the applicant miner. It appears any person can gain access to the property from the public road. The applicant miner is not responsible for that activity and the landowner always retains his common law rights to take action against trespassers. Mr Vagg tendered a number of documents which really related to past dealings between the parties or the previous hearing. They had no relevance to the matters that I had to consider and I -- 4 of 6 -- 5 place no weight on them. For instance, a determination under section 281 is related to monetary compensation, not conditions of the grant of the lease. In summary, apart from the information that is available in the application and the recommendation, the evidence given and the submissions, there was no other evidence called to support any claim under any other head of compensation contained in section 281 of the Mineral Resources Act, nor was any matter raised which would necessitate consideration under paragraphs (a), (c), (d) or (e) of section 281 (4) of the Act. I take the view that there can be little or no loss from any occurrence of the kind mentioned in section 281 of the Act. I therefore consider that the value which should be placed on compensation under all heads in section 282 (3) and (4), including the compulsory nature of the taking for a term of 5 years (or less if surrendered, cancelled or forfeited earlier) should be a nominal amount. In reaching this conclusion, and in making the determination and order relating to terms, conditions and times when payments aggregating the total compensation shall be payable, I take into account: (a) that the only suitable and likely use of the land apart from mining is low intensity grazing under favourable conditions. (b) that the proposed operation will affect a small area of country with little pasture of any value. (c) that deprivation of possession of the surface of the land applied for is not likely, in view of the current use and likely use to which the owners put the land, to result in loss of profit, or diminution of the value of the land of the owner or any improvements thereon, and (d) that there is unlikely to be any severance of the owners land or any other disturbances to the owners enjoyment or activities on the balance of their land or in relation to the improvements on such land, caused by the lessee proposed mining operation and/or access to the land for the purpose of that operation. I determine, after taking into account an additional amount of the aggregate amount determined under all heads of compensation to reflect the compulsory nature of the action taken under Part 7 of the Mineral Resources Act 1989, the amount of compensation to be paid or tendered by the applicant miner Reginald Henry BRINSMEAD to the landholder John Colin VAGG to satisfy all heads of compensation set forth in paragraphs (i) to (vi) inclusive of section 281 of the Mineral Resources Act 1989 shall be sum of $20.00 per hectare per year. In respect of MLA 60238, compensation shall be in the sum of $60.00 per annum, ie $300 for the term of the lease. In respect of MLA 60239, compensation shall be in the sum of $20.00 per annum, i e $100.00 for the term of the lease. In respect of both leases, I determine that compensation for loss of surface rights of access shall be the sum of $100.00 per annum, i e $500 for the term of both leases. -- 5 of 6 -- 6 In the event of any application under section 317 for a change of access, the quantum of this portion of the determination will be subject to change. There is no submission from the miner in relation to the times, terms or manner of payment. Mr.Vagg requested a once only “up front” payment. In view of the area involved, the quantum of the award and the short term of the lease, I direct that the miner pay to the landowner the sum of $900.00 within 60 days of notification of grant of the lease by the Registrar, subject to any application to vary access under Section 317. Dated at Quilpie this 23rd day of July 1997. F.W. WINDRIDGE. MINING WARDEN. -- 6 of 6 --