Clark v Hume & Anor [1991] QMW 91

,,. . . ~ '~ THE WARDENS CCURT OF QJEENSIAND HELD AT Rc:x::::KHAMPI'C. BEFORE: FRANCIS WILLIAM WINDRir::GE, ESQUIRE, WARDEN. IN THE MATIER OF AN APPLICATICN FDR DETERMINATION OF CCMPENSATION IN REIATICN TO MINING LEASE APPLICATION 7529. APPLICANI': HAROLD BRUCE CLARK J.R.HUME and D.G.HUME DECISICN: HAROLD BRUCE CLARK is the applicant for mining lease (M.L.A. 7529) for the purpose of mining dimension stone on Lot 1, R.P.616642 in the County of Livingstone, Parish of Stanwell. The application received a favourable recommendation from the Wardens Court on 23 July 1991. The miner and the land owner have failed to reach an agreement in respect of compensation. The miner has requested the Court to make a determination in respect of compensation. (S.7.38) The hearing took place in the Rockhampton Wardens Court on 15 November, 1991. The applicant miner appeared but did not call expert evidence. The land owner failed to appear. The miner relied upon his oral submissions and documents on file. The land owner relied upon his written submission dated 7 November 1991. I-- [1991] QMW 91 -- 1 of 5 -- The area of the mining lease is some 8.903 hectares. There seems to be no dispute that the block wherein the lease is situat ed is used for cattle grazing. The miner states the area of the lease is mostly spear grass country that is hardly used, and the mining will invol ve only outcrops of stone that occur in one corner. The min er ind icat es that there are no improvements on the area of the mining l eas e, and the mining operation will cause no interference to the grazing operation. The land holder has not seriously challenged, if at all, this assertion of the miner. The miner has indicated that the mining lease will not be fenced, and therefore the unused portions of the mining leas e will be available for grazing stock. Th e miner has indicated that he wil] construct his own access with a l ocked gate to remove the necessity and expense of checking by the land owner. Carrying capacity was referr ed to by both the land owner and the miner. On an overall basis, th e land owned calculat es a carrying capacity of l cow to 12 hectares. He then calcu lates his loss bas ed on the loss of an .85% calving capacity rate from 6 cows, eac h calf being valued at $200.00, making a yearly loss of $1020.00. Mr Clark (the miner) has referred to a carrying capacity of one and a half beasts to 2 beasts for the total area of 8.9 hec tares. Mr. Clark also refers to the Valuer Generals valuation of approximate ly $104.00 per hectar e . The matters to be considered by th e Warden when determining compensation are outlined in Section 7.38(3) of the Mineral Resources Act 1989 - 1990, as follows: (a) 1n the case of compensation referred to in section 7.36 - (i) deprivation of possession of the surface of the land of the owner; (ii) diminution of the value of the land of the owner or any improvements thereon; -- 2 of 5 -- (iii)dirninution of the use made or which may be made of the land of the owner or any improvements thereon; (iv) severance of any part of the land from other parts thereof or from other la nd of the owner; (v) any surface rights of access; (vi) all loss or expense that arises; as a consequence of the grant or renewa l of the mining lease. In relation to (i), I find that the ar ea of the J.ease is l ess than 1% of the total area, and depr jva tion of the surface of the land will be very slight. The area to be mined is a rocky outcrop, and the balance of the lease will be available to grazing stock. In relation to (ii), I find that diminution of the va lu e of the land will be very slight. Only th e rocky outcrop will be mined for dimension stone. In fact, with backfilling and rehabilitation, the value of the land may well be improved. In relation to (iii), I find that there are no improvements on the area of the mining lease and diminution of use of the land will be very slight. In relation to (iv), I find that there is no evidence that any part of the land will be severed from any other part of the land, making any other portion unavailable for use by the land owner. -- 3 of 5 -- In relation to (v), I find there is no evidence to support loss of any surface rights of access. The land owner will access the land , ~. in the usual way. The miner will construct and maintain a new access gate in a locked condition. In relation to (vi), I find there is no evidence of any additional loss or expense arising out of the grant of the mining lease. No evidence was adduced in relation to any matter which would require consideration under paragraphs (a), (c) or (d) of Section 7.38(4) of the Mineral Resources Act. I take the view that the owners, by their attitude, anticipate little or no loss from any occurrence of the kind mentioned in Section 7.38 resulting from the proposed operation. In my opinion, the value which should be placed on compensation under the heads in paragraphs (i) to (vi) of Section 7.38, after giving such consideration as the evidence permits to all matters contained in paragraphs (a) to (d) of Section 7.38(4) should be a nominal amount. In reaching this conclusion, and in making the determination and order 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 is limited cattle grazing. (b) that the proposed operation will affect a small area of rocky outcrop; . -- 4 of 5 -- (c) that deprivation of possession of the surface of the land applied for is not likely, in view of the current 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 likely to be any severance of the owners land or any other disturbance to the owners enjoyment of or activities on their land or in relation to improvements on that land, caused by the lessees' proposed mining operations 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, the amount of compensation to be paid or tendered by the lessee to the owners namely J.R.HUME and D.G.HUME to satisfy all heads of compensation set forth in paragraphs (i) to (vi) inclusive in Section 7.38 (3) of the Mineral REsources Act 1989 - 1990 shall be the sum of $20.00 per hectare per annum. Under the provisions of Section 7.38 (5), I direct that a sum ·representing compensation for the first year of the term of the lease be paid within 28 days of notification of the grant of the lease by the Honourable the Minister, and yearly thereafter. Dated at Brisbane this 3rd day of December 1991. MINING WARDlli. -- 5 of 5 --