Connolly v Nielsen [1995] QMW 69

DETERMINATION OF WARDEN PURSUANT TO SECTION 7 (38) OF THE MINERAL RESOURCES ACT 1989. IN THE MATTER OF: DETERMINATION OF COMPENSATION PURSUANT TO SECTION 7(38) OF THE MINERAL RESOURCES ACT 1989 IN RESPECT OF MINING LEASE 95124 IN THE WINTON MINING DISTRICT. BEFORE: F.W.WINDRIDGE. WARDEN. FOR APPLICANT MINER: NO APPEARANCE FOR BRIAN MALCOLM CONNOLLY. FOR LAND OWNER: NO APPEARANCE FOR R.NIELSEN. DETERMINATION: These matters came on for hearing in the Wardens Court on 20 February 1995 at Winton. The applicant miner failed to appear and the respondent land owner failed to appear. There was no written submission lodged by either party. This determination is in respect of Mining Lease Application 95124 which is for a term of five (5) years from the date of grant. The lease application is over one hectare of land and [1995] QMW 69 -- 1 of 7 -- is situated on Lot 2 on Plan PH23018, County of Rosebrook, Parish of Torc. The property is known as Elvo holding and is in the Winton District. The leals area is some 24 kilometres from the homestead of Elvo Holding. The application was before the Wardens Court on 29 July 1994 and was recommended for grant. Such grant cannot proceed until compensation is settled either by the parties by agreement in writing, or by a determination of the Court if such an agreement is not filed within three months of the date of recommendation. Neither party having filed such an agreement, the Court is empowered to make a determination under Section 7.38 of the Act. Matters which must be considered are set forth in subsections (3) and (4) of section 7.38. As neither party appeared and no evidence has been adduced, the Court will rely on the information on the Registrars file including the recommendation dated 16 May 1994, and its own knowledge of the area and type of mining in order to reach a determination. The lease is required for opal mining. I recall from the material supplied with the application that there are no improvements on the application areas. The area isdescribed in documents attached to the application as arid with no pasture grasses. There are no crops grown and the land is not suitable for cultivation. It is 15 kilometres to the -- 2 of 7 -- nearest stock watering point. It appears therefore that the activities on this lease will have little or no effect on the grazing operations conducted by the landowner. I assume from his non appearance that the landowner expects little or no loss of income in relation to this mining operation. The landowner and the miner having failed to adduce any evidence under the provisions of subsection (3) and (4) of Section 7.38, I determine compensation as follows: 7.38(3)(a) (i). deprivation of possession of the surface of the land of the owner. There is no evidence which will allow any quantum to be placed on the land lost to the owner for the term of the lease. 7.38(3)(a) (ii). diminution of the value of the land of the owner or of any improvements thereon. There is no evidence that the value of the land will diminish, or that improvements on the land or nearby will diminish in value. 7.38(3)(a) (iii) diminution of the use made or which may be made of the land or the owner or any improvements thereon. -- 3 of 7 -- There is no evidence of the use of the land or of any improvements that will be affected by the mining operation. The only apparent use of the land is low intensity grazing. 7.38(3)(a) (iv) 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 of the land of the owner, and given the relatively small area contained in the lease, this is highly unlikely. 7.38(3)(a) (v) any surface rights of access. There is no evidence of loss through surface rights of access. 7.38(3)(a) (vi) all loss or expense that arises. There is no evidence of any other loss or expense arising from the loss of the land for the term of the lease. 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. In summary there was no evidence called to support any claim -- 4 of 7 -- under any other head of compensation contained in Section 7.38 of the Mineral Resources Act, nor was any matter raised which would necessitate consideration under paragraphs (a), (b), or (d) of Section 7.38(4) of the act. I take the view that the owners anticipate little or no loss from any occurrence of the kind mentioned in Section 7.38. In my opinion the value which should be placed on compensation under the heads in paragraphs (i) to (vi) inclusive of section 7.38(3), after giving consideration as the evidence permits to all the matters contained in paragraphs (a) to (d) of Section 7.38(4), including the compulsory nature of the taking for a term of five years ( or less if surrendered, cancelled or forfeited earlier) should be a nominal amount. In reaching this conclusion, and in making the determination in relation 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 or no pasture of any real 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 any significant loss of profit, or significant diminution of the value of the land of the owner or any improvements thereon, -- 5 of 7 -- and (d) that there is unlikely to be any severance of the owners land or any other disturbance to the owners enjoyment of or activities on the balance of the land or in relation to the improvements on such land, caused by the lessees 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 to the landowner R.NIELSEN by the lease holder BRIAN MALCOLM CONNELLY to satisfy all heads of compensation set forth in paragraphs (i) to (vi) inclusive of section 7.38(3) of the Mineral Resources Act shall be the sum of $5.00 per hectare per annum. There being no submission from either party in relation to the times, terms or manner of payment, I determine that due to the small area involved and the term of the lease, payment shall be by way of a sump sum payment of $25.00. It is further directed that the applicant miner (CONNOLLY) provide proof of payment of the amount ordered within 30 days of the date of this order to the Registrar at WINTON and in the absence of that proof, the Registrar advise the Minister that the application should be rejected for non payment of compensation. -- 6 of 7 -- There is no application for costs, and no costs are awarded. Dated at Brisbane this 14th day of June 1995. F.W.WINDRIDGE MINING WARDEN. -- 7 of 7 --