Brancote Australia Limited v Daniels & Anor [1994] QMW 121

IN THE WARDENS COURT HELD AT BRISBANE QUEENSLAND. IN THE MATTER OF : DETERMINATION OF COMPENSATION PURSUANT TO SECTION 7(38) OF THE MINERAL RESOURCES ACT 1989 IN RESPECT OF MINING LEASE 2547 MOUNT ISA DISTRICT. BEFORE: F.W.WINDRIDGE, WARDEN. FOR APPLICANT: NO APPEARANCE FOR APPLICANT MINER. BRANCOTE AUSTRALIA LIMITED. FOR LANDOWNER: NO APPEARANCE FOR RESPONDENT LANDOWNER. J.J.DANIELS and V. DANIELS. DETERMINATION: This matter came on for mention at Mount Isa on 17 June 1994. There were no appearances and no written submissions were lodged. The Registrar then adjourned the matter to Brisbane for determination on a date to be fixed. Since that date the representatives of the applicant miner have made a written submission. I am satisfied from the record supplied by the Registrar that both parties were notified of the date and had adequate opportunity to appear or make submissions. [1994] QMW 121 -- 1 of 7 -- I am satisfied that the applicant miner has made a number of attempts to negotiate and settle the matter with the landowner, but to no avail. There has been no contact from the landowner. I am therefore satisfied that I can deal with the matter ex- party. To reach the determination, I shall refer to the Registrars file, the submission of the miner, and my knowledge of the type of country and methods of mining (Carr V Simnovec (1980) 26 SASR 263 at 268, and Pacminex V Aust Nephrite Jade Mines (1974) 7 SASR 401 AT 415. This lease was originally granted for a period of 17 years from 1 February 1974. There was no development work for a number of years, and the leases passed through several hands. By a document signed on 2 August 1991, the then owner POWDER METALS AUSTRALIA LIMITED IN LIQUIDATION assigned ownership to the current owner BRANCOTE AUSTRALIA LIMITED . The lease is known as the "BARONESS" and is 12.141 hectares in size, according to a list of tenements. The lease is located on Roxmere Station in the Cloncurry area. For the purpose of this determination, the area will be rounded off to 13 hectares to cover the lease area and access. The parties not having filed an agreement in relation to compensation, the matter of compensation can be determined by the Court under the provisions of Section 7.38 and the matters which must be considered are set out in section 7.38(3) of the Act. -- 2 of 7 -- It is of some concern that the matter of renewal has taken an extra-ordinary amount of time to reach this stage. It seems even now that there is to be some further delay in developmental work. The rights of the landowner have been affected by this delay, and in my opinion compensation will be payable from the date of application for renewal, and technically this will be 1st February 1991. There is no information in relation to improvements on the area, and it must be assumed that there are no such improvements. It appears that the land is used for grazing purposes, but there is no information as to the carrying capacity or agistment rates for similar properties in the area. It appears therefore that the mining 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 as a result of this mining operation. The miner and the landowner having failed to adduce any evidence under the provisions of subsections (3) and (4) of section 7.38 (except for the submissions of the miner), I determine compensation as follows: S.7.38(3)(a)(i). deprivation of possession of the surface of the land of the owner. -- 3 of 7 -- 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. S.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. S.7.38(3)(a)(iii) 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 the use of the land, apart from the assumed use as cattle raising, or of any improvements that will be affected by the mining operation. S.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 of the lease, this is highly unlikely. S. 7.38(3)(a)(v) any surface rights of access. There is no evidence of loss of rights through access, but obviously the access roadway in will occupy some grazing land. However, given the quality and carrying capacity of the land in that locality, I do not consider such a loss is measurably significant. S.7.38(3)(a)(vi). all loss or expense that arises. -- 4 of 7 -- 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 any determination. Due to the small area involved, the cost of as valuation would far outweigh any award of compensation. In summary there was no evidence called to support any claim under any other head of compensation contained in Section 7.38 of the Mineral Resources Act 1989, 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 17 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. -- 5 of 7 -- (b) that the proposed operation will affect a small area of country with little or no pasture of significant 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, and (d) that there is unlikely to be any severance of the owners land or any other disturbances to the owners enjoyment of or activities on the balance of th eland 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 th action taken under Part 7 of the act, the amount of compensation to be paid by BRANCOTE AUSTRALIA LIMITED to the landowners J.J.DANIELS and V.DANIELS to satisfy all heads of compensation set forth in paragraphs (i) to (vi) inclusive of section 7.38(3) of the Mineral Resources Act 1989, 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 the miner shall pay as follows: (1) the sum of $65.00 per annum for the years 91/92, 92/93, 93/94, (i.e. $195.00) within 60 days of the notification of renewal by the Minister. (2) the sum of $65.00 per annum on the anniversary of such date, until such time as the lease is expired, cancelled, forfeited or surrendered. -- 6 of 7 -- There is no application for costs, and no costs are awarded. Dated at Brisbane this 11th day of July 1994. F.W.WINDRIDGE MINING WARDEN. -- 7 of 7 --