Benney v Vella [2003] QLRT 80

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Benney v Vella [2003] QLRT 80 PARTIES: In the matter of Application for Mining Lease No 70128 – Application by L.R. & E.A. Benney (Landholders) for determination of compensation payable by E.J. Vella (Miner). FILE NO/S: MLC00032/2003 PROCEEDING: Application in a proceeding seeking orders as to right to recover compensation DELIVERED ON: 14 August 2003 DELIVERED AT: Brisbane HEARING DATE: 14 August 2003 PRESIDING MEMBER: Smith DP ORDER/S: 1. Orders sought in Application in a Proceeding refused. Application for compensation dismissed. (at [11]) 2. I make no order as to costs. (at [13]) CATCHWORDS: MINING – MINING LEASE – COMPENSATION – RENEWAL APPLICATION WITHDRAWN – RIGHT TO RECOVER COMPENSATION – MATERIAL CHANGE IN CIRCUMSTANCES Mineral Resources Act 1989, ss 281, 283B, 286 Land and Resources Tribunal Act 1999, s. 50(2) Trade Practices Act 1975 (Cth), s. 91 Alliance Petroleum Australia Pty Ltd & Ors, ACTrib 14/10/97, followed. COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: Mr and Mrs Benney appeared on their own behalf. Mr Vella appeared on his own behalf. -- 1 of 4 -- [1] SMITH DP: (Ex Tempore) I have before me an Application in a Proceeding brought by Mr and Mrs Benney, the Applicants in this matter for compensation. Mr and Mrs Benney are the Landholders and I’ll use that term in reference to them henceforth. The Respondent, Mr Vella, is the Miner and I’ll refer to him as such. The Landholders by their Application in a Proceeding seek the following order: “That determination of compensation be for the time ML 70128 was held under renewal to withdraw (sic) and for the disturbed land that is currently on lease and the extra land that would be disturbed doing the rehabilitation, until it is excepted (sic) by the EPA (Environmental Protection Agency).” [2] Both the Landholders and the Miner have made oral submissions to me regarding the Application in a Proceeding. Neither the Landholders nor the Miner are legally represented. However they have expressed their view as to what should happen in this matter in a clear and concise way. The matter is currently before me to determine compensation having been referred by the Mining Registrar under s. 281 of Mineral Resources Act 1989 (“the Act”) following a request by the Landholders. [3] The facts of the matter can basically be summarised thus. The Miner held a mining lease, the term of which was due to expire. Prior to the expiry of the mining lease the Miner sought a renewal of that mining lease.1 Subsequently, after the initial date for the end of the term of the mining lease but before there had been a determination of compensation and a renewal under the Act had occurred, the Miner withdrew the application for renewal. This meant that there was an intervening period in which the Miner had rights to continue to mine under the original mining lease after the expiration of the mining lease’s original term up to the date that the renewal application was withdrawn.2 [4] Whilst the application in a proceeding is in some ways a little unusual in the order that it seeks and the way it is formulated, in effect, the Landholders are seeking a determination of a point of law as to whether or not compensation is payable in these circumstances. This matter is not without complexity and some difficulty. [5] In short, while the Miner recognises a moral obligation to pay compensation, he submits that there is no legal requirement on him to do so. The Landholders say that there must be a right somewhere in the Act which allows them to recover compensation. [6] I note that the matter has been subject to commentary in an article written by Daniel Ryan, Barrister-at Law, Brisbane and Martin Clapper of Clarke and Kann, Brisbane which appears in (1998) Mining and Petroleum Law Journal at Page 20. I quote from page 21: “Impact on Compensation. If the lease is “continued in force” by reason of those provisions, and the Miner subsequently withdraws the application for renewal, is the owner of the land entitled to compensation pursuant to s. 281 for the deprivation of possession - and the other factors listed in MRA s. 281(3) and (4) suffered - during the period between the date of expiry of the lease and the date of withdrawal of the application to renew? We do not think so because under s. 281(3) the Warden only has jurisdiction to “settle the amount of compensation … as compensation for [deprivation of possession etc.] …, as a consequence of the grant or renewal, of the mining lease”” 1 Pursuant to s. 286(1) of the Act. 2 See s. 286(8) of the Act. -- 2 of 4 -- [7] Insofar as an application made under s. 281 of the Act is concerned, I agree with the comments contained in the article quoted above. The wording of the Act in the particular section I have dealt with to date is unhelpful in properly accounting for the circumstances in this matter, which I should add for completeness, also apply to three other matters currently before me involving the same Miner and Landholders. However, the matter does not stop there. Section 283B of the Act is in the following terms: “Review of compensation by tribunal 283B.(1) This section applies if– (a) compensation has been agreed under section 279 or 280 or determined under section 281 or 282 for a mining lease (the “original compensation”); and (b) there has, since the agreement or determination, been a material change in circumstances for the mining lease. Example of a ‘material change in circumstances’– A different mining method that changes the impact of mining operations under the lease. (2) The mining lease holder or any owner in relation to the mining lease mentioned in section 279(1)(a) or 280(1) may apply to the tribunal for it to review the original compensation.” The section continues in other ways that are not relevant. [8] There are a number of authorities as to what is meant legislatively by a material change in circumstances. In particular, I note the decision of Lockhart J (President), Dr M Brunt and Dr B Aldrich in the Australian Competition Tribunal’s decision in Alliance Petroleum Australia Pty Ltd & Ors3 which has this to say:4 “To determine whether there has been a material change of circumstances since the authorization was granted, the Tribunal must commence by examining the circumstances as they existed at the time the authorization was granted (at 42,240). From that point the Tribunal then moves forward to the circumstances as they exist on the material before it at the time it conducts the reading. Circumstances is a word of wide import which includes all facts, matters and conduct relevant to an authorization and to a revocation.” Although this decision relates to s. 91(4) of the Trade Practices Act 1975 (Cth), and the relevant phrase in that act is “material change of circumstances” rather than “material change in circumstances” as found in s. 283B, I agree with the approach taken by the Australian Competition Tribunal. [9] I note that s. 283B was legislated into the Act in the year 2000.5 My view as to the operation of s. 283B is consistent with the explanatory memorandum relating to this amendment which relevantly states: “Clause 146 inserts new sections 283A and 283B to enable the compensation agreement for a mining lease to be amended. The current provisions provide for compensation to be agreed between the landowner and lease holder or determined by the Court before a mining lease can 3 ACTrib 14/10/97. 4 At p. 16. 5 2000 No 64 s. 146. -- 3 of 4 -- be granted. There are no provisions to amend or vary an agreement during the term of the lease if this becomes necessary due to operational change. Section 283A provides a mechanism for the parties to the agreement to amend the compensation. The amended agreement is binding and replaces the original agreement only if it is filed with the mining registrar. Section 283B enables either party to the compensation agreement to refer the matter to the tribunal for review. Once the matter is referred to the tribunal, the agreement will be confirmed as adequate or amended. In doing this, the tribunal is required to consider whether the parties have attempted to mediate or negotiate the agreement as well as the changes that have occurred to warrant amending the compensation. Compensation reviewed by the tribunal replaces the original compensation agreement.”6 In my view, “operational change” includes an increase in the duration of the mining operation under the lease compared to that which existed at the time compensation was originally agreed or determined. [10] Whilst I agree with the learned authors of the article quoted earlier that compensation is not payable on the renewal application7, what has in effect occurred in this matter is that the original lease has continued to operate until such time as a renewal takes place.8 Therefore, the term of the original lease has been extended in circumstances where the term of a lease is a most important factor to take into account when determining compensation in the first place. This amounts in my view to a clear change in circumstances for the original mining lease and thus causes s. 283B to operate. [11] In the circumstances then I have no option but to refuse the application as sought in the Application in a Proceeding by the Landholders as their mode in coming before the Tribunal pursuant to s. 281 is not appropriate. Their Application in a Proceeding is not only dismissed but their application for compensation as currently before me must also be dismissed. I order accordingly. [12] I note that either the Miner or the Landholders are entitled to make a new application, in my view, to this Tribunal under s. 283B of the Act for the Tribunal to review the original compensation awarded with respect to this mining lease. However, any such application, if it is made, would have to be the subject of fresh proceedings. [13] With respect to costs for this matter, it is my view that there are no special circumstances which warrant an award of costs.9 Whilst Mr Vella has succeeded with respect to the application in a proceeding and the Benneys’ have lost and their application for compensation has been dismissed, the matter deals with a complex area under the Act and I do not think it appropriate for any order for costs to be made. There is nothing to suggest that the Landholders in bringing this Application for Compensation have acted frivolously or vexatiously. I therefore make no order as to costs. 6 Explanatory Memorandum Environmental Protection and Other Legislation Amendment, p. 176. 7 Of course, it must be noted that s. 283B was not inserted into the Act until some years after the article was written. 8 Section 286(8) of the Act. 9 See s. 50(2) of the Land and Resources Tribunal Act 1999. -- 4 of 4 --