Dobe v Mathews [1994] QMW 103

?,_4- '~ :~ ".' ~~? ,-;..~- .- -~ c-- .: .-,~~~:?r;,._\\ .:. . , DETERMINATION OF WARDEN PURSUANT TO SECTION 7(38) OF THE MINERAL RESOURCES ACT 1989. IN . THE MATTER OF: BEFORE: FOR APPLICANT MINER: FOR LANDOWNER: DETERMINATION: DETERMINATION OF COMPENSATION PURSUANT TO SECTION 7(38) OF THE MINERAL RESOURCES ACT 1989 IN RESPECT OF MINING LEASES 95068 AND 95069 IN THE WINTON MINING DISTRICT. F . W.WINDRIDGE. WARDEN. NO APPEARANCE OF R.H.DOBE. NO APPEARANCE OF P.MATHEWS. These matters came on for hearing at the Wardens Court at Brisbane on 24 May 1994 at 9 . 30 a.m. The applicant miner failed to appear but made a brief one page submission. The respondent landowner failed to appear and has made no submission. The determination will therefore be done in their absence and based on the information on file and my knowledge of the methods adopted by opal miners. [1994] QMW 103 -- 1 of 7 -- ----- - -- ---------- Both leases are held by the same miners and are located on the same property, being on the opposite sides of Mt. Fairview on VEJOVIS HOLDING via JUNDAH. Under the circumstances it is possible to deal with both matters together. MLA 95068 is for the purpose of mining for Opal and is for an area of 3 hectares. MLA 95069 is for the purpose of mining for ·Opal and is for an area of 6 hectares. Both lease application areas are located on Lot 3397 on plan PH71, Parish of Lillirie, County of Mayne, on the holding known as VEJOVIS owned, leased or operated by Mr . P. Mathews of Vejovis via Jundah. The application for a mining lease was before the Wardens Court and has been re commended for grant subject to compensation being finalised. As an agreement in relation to compensation was not filed with th e Reg i strar, the Registrar has made application that compensation be determined by the Court. The Court is empowered to make such a determination under Section 7 . 38 of the Act. Matters which must be considered are se t forth in subsections (3) and (4) of section 7.38. -- 2 of 7 -- It . appears that a grazing operation is conducted on th e property, but there is no evidence as to the size of that . . operation or the carrying capacity of the property . I recall from th e ma ter ial supplied with the app lication that there are no improvements on the application areas. It appears that the mining activities will have little or no e ffect on the gra zing operation, and by his non-appearance and l ack of submissions, I am inclined to ·believ e th a t th e landowner expects little or no loss of va l ue or income from the mi ning operati o ns. The min er submits tha t th operations will not separate any part of the prop e rty from a ny ot her part . As assess i s along a stock route to the bo un dar y ga te of Warbr e ccan Hol ding and Vejovis Holding , and then along a fence line for a distance of 1600 metres, this would appear to be correct. The app licant miner also submits th a t th e appl i cat ion areas are rocky hard country wi th no grasses or fodder f or stock. Ac c ess t racks will be upgraded. The ar ea or parts of t he area ha ve been disturbed by previous mi ni ng . I t here fo r e d etermine compensation as follows: 7. 38 (3)(a)(i). dep r ivation of po sse ssion of the s ur fac e of the land of the owner. -- 3 of 7 -- There is no evidence whi c h allows 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 improv em ents th ereon. There i s no evidence of any improvements on the land, or that the va lue o f the land will diminish. Regeneration of grass and vegetation may be en co ur ag ed when the l a nd is rehabilitated. 7.38(3)(iii). diminution of the use made or wh ich may be made of the land of the owner or a ny improvements thereon. There is no evidence of use of the land or of any improvements th er eon that will be affected by the mining operation. Th e only app ar ent use of th e land is low intensity grazing. 7.38(3)(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 s ev er ed fr om any · other part of the land by ei th er lease. The leases are rel ative ly small in area. 7 . 38 ( 3) ( V) . any surface rights of access. There is no evidence o f loss through surface ri gh ts of access. Access is to be down a boundary fe nce line and th e miner in dicates t ha t the access route will be upgraded. 7. 38 (3)(vi) all loss or expense that arises. There is no evidence or any other loss or expense arising from the lo ss of th e land fo r the term of the lease. Th er e is no valuation evidence to consider, a nd therefore the Court does not h ave that assist an ce in arriving at a -- 4 of 7 -- determination. Due to the small area involved, the cost of valuations would far outweigh any award for 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, 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 ma tters conta i ned in p ar agraphs (a) to (d) of section 7.38(4) including the compulsory nature of the taking of the land for the term of the le as e ( subject to any surrender, cancellation or forfeiture) should be a nominal amount. In reaching this conclusion, and in making the determination in relation to t erms, conditions and times when payments aggregating the total compensation is payable, I take into account: (a) that the only suitable and likely u se of the land apart from mining is low intensity grazing under favourable conditions. (b) that the propo s ed op e ration will only affect a small area of country with little or no pasture value. (c) th a t dep r ivation of possession of the surface of the land -- 5 of 7 -- applied for is not likely, in view of the current use and likely us e to which the owners put the land, to result in · any signif icant loss of profit, or significant diminution _of _the value of t~e land of the owner or· a~y improyements thereon, and (d)" that there is unlikely to be any severance of the owners land or any other disturbance to the owners e njoym ent of or activities on the balance of the land or in relation to the improvements on such land, caused by the l essees propos e d mining operation and/or access to the land for th e purpose of that operat ion. I de te rmine, after taking into account an additi o nal 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 by the applicant miners to the landowner P. MATHEWS: A. IN RESPECT OF 95068, the sum of $5.00 per hectare per annum. B. IN RESPECT OF 95069, THE SUM OF $5.00 PER HECT ARE per annum. In respect of times, te rms and conditions of payment, I dir e ct that the applicant miners pay to the landowner such sums of money as aggregate one years co mp en sation within 30 days of this d~te, and yearly thereafter on or before 31st January. In the event of the applicant miners failing to pay the sums due within 30 days, The Registrar is to notify the Minister ac c ordingly whereupon the applications for the leases shou ld be rejected. -- 6 of 7 -- - ----- - - - - - - - - - - --------- - - - --- - - - - -- Dated a t Brisbane this 24th day of Ma y 19 94. t /'.'."".__ ;-s- ~i;:--. . " },,'\._.;•,i-..., - > \-'JI. -~ . ' t \ -1 ,. 1 :; • : -... ~- ~ - ·.-:t.-..•i . WINDR:t-PPE:• :-./ MINING WARDEN . ) -- 7 of 7 --