Ballard and Ors & Channel Properties Pty Ltd, Re [1996] QMW 15

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 NO. 60211 IN THE QUILPIE MINING DISTRICT. BEFORE: F.W. WINDRIDGE, WARDEN. APPLICANT/MINER: T.J.BALLARD & ORS. RESPONDENT/OWNER: CHANNEL PROPERTIES PTY. LTD. CATCHWORDS: COMPENSATION – MINING LEASE – QUILPIE DISTRICT – KEEROONGOOLOO HOLDING (EROMANGA) Mineral Resources Act 1989 s. 281 DETERMINATION. This matter was listed for hearing in the Wardens Court at Quilpie on 3 September 1996. Parties were notified. The applicant miner failed to appear and the respondent landowner failed to appear. Neither party made a written submission through the Registrar. This determination will therefore be made on the information contained in the Registrar's file, 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 and this property. This determination is in respect of the Mining Lease Application 60211 Quilpie. The applicant miners made application for a term of five years. The lease is in respect of an area of 7.50 hectares and is required for the purpose of mining for opal. 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 on 22 February 1996. The recommendation was in favour of grant. This area is located 80 kilometres north west of Eromanga on Keeroongooloo Holding, more particularly described as Lot 439 on Plan PH 2146, Parish of BEALLAH, County of Kyabra. -- 1 of 4 -- 2 It appears the landholders conduct a pastoral business on the land. It appears there are a number of other leases on the same property. 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 landowner and the miner having failed to adduce any evidence under the provisions of subsections (3) and (4) of section 281, I determine compensation as follows: (1) deprivation of possession of the surface of the land of the owner. Although the area involved is 7.50 hectares, there is no evidence which will allow any quantum to be placed on the land lost to the owner. Current valuations held by the Lands Department in Charleville indicate the land is valued at $0.98 cents per hectare. (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. (3) diminution of the use made or which may be made of the land of the owner or any improvements thereon. There is no evidence of use of the land by the owner or any improvements thereon. It appears that some grazing operation is in existence, but the previous mining activity indicates that little or no grazing could take place on this lease. (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 no evidence of loss of surface rights of access and no award is made under this head of compensation. Access is through the same property and no other property is involved. (6) all loss or expense that arises. There is no evidence of any other loss or expense arising from the loss of the land. 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. -- 2 of 4 -- 3 In summary, apart from the information that is available in the application and the recommendation, there was no 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), (b), (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 miners DAVID JOHN BALLARD, THOMAS JOHN BALLARD and RUTH ANN BALLARD to the landholder Channel Properties Pty. Ltd. 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 $5.00 per hectare per year, i.e. $37.50 per year for lease number 60211. There is no submission from either party in relation to the times, terms or manner of payment. I determine that the applicant miners shall pay compensation by way of a yearly payment, the first payment due within thirty (30) days of notification of grant by the Minister or the Registrar, and yearly thereafter. Failure to pay the yearly instalment as due can result in a show cause notice from the Minister, with forfeiture of the lease the final result if the applicants cannot prove payment. Alternatively, the miners have the option of paying the full sum to cover the whole of the term. -- 3 of 4 -- 4 There is no application for costs and no costs are awarded. Should the applicants abandon part of the application area, the Registrar is authorised to make the necessary adjustments to compensation payments and to advise the parties accordingly. In the event of any dispute on this point, each party has liberty to apply to the Court for a final ruling. Dated at Brisbane this 4th day of October 1996. F.W. WINDRIDGE. MINING WARDEN. -- 4 of 4 --