Lavaring v Proctor

[1994] QLC 28

[1994] QLC 28

 

  LAND COURT

BRISBANE.

17 June, 1994

Re:     Appeal to Land Court under
Mineral Resources Act 1989 (MC93-3)

Colin Robert Lavaring & Patricia Jean Lavaring          Appellants
  v.
  David George Proctor and Teresa Ann Proctor     Respondents

D E C I S I O N

This is an appeal by Colin Robert Lavaring and Patricia Jean Lavaring (the appellants) against the determination of the Mining Wardens Court of compensation in respect of Mining Lease 50061, Brisbane Mining District.
           The appellants are the owners of Lot 46 on Plan BON588 containing an area of 240.753 hectares.  The lot is situated about 12 kilometres north east of Mount Perry and is used for grazing cattle in conjunction with other land in the ownership of the appellants.
           David George Proctor and Teresa Ann Proctor (the respondents) are the applicants of the mining lease.  The lease is for the purpose of mining for quartz on an area of 2.16 hectares of Lot 46.  The location of the relevant area and access proposed to the mine site are shown on Annexure A (being a plan tendered by Mr Proctor). 
           On 31 May, 1993, the Mining Warden recommended that -

"The mining lease be granted over the whole of the application area for a term of Five years.  (s7.26(2)(a), subject to conditions in relation to working days and hours and the provision of stock proof gates and grids being incorporated into the lease conditions)."

In the absence of the parties reaching agreement as to compensation, the Mining Warden on 14 September, 1993, after considering the evidence under the various headings for which compensation is to be assessed under the Mineral Resources Act 1989 (the Act) - 7.38, assessed compensation in the sum of $700 per annum to which was added an additional sum of $70 in applying para (e) of subsection 4 of the section. At the option of the applicant miner he ordered that compensation -

"shall be paid as follows .. (a) the sum of $3,850 within one month of the notification of grant of the lease by the Minister, or (b) the sum of $770 within one month of the notification of grant of the lease by the Minister, and yearly thereafter at the rate of $770 per annum on the anniversary of such date with interest at the rate of 9% on the balance of compensation outstanding."

The parties handled their own cases both before the Mining Wardens Court and this Court.
           Access to the Mining site as shown on Annexure A was an option considered before the Warden.  Since that time Mr Proctor has ascertained that land within an old railway/tramway reserve to which access (another option) was to be taken in part to the Mining site is in fact in private ownership.  He informed the Court that access to the site is preferred via the dedicated but unmade road through Lot 46 to a point about 180 metres from the mining site.  He said that he has discussed the question with local government and is not deterred by likely costs which could include costs of the construction of a causeway (with piping) through a gully, the crossing of which was of some concern to the parties in the first instance.  The resource which is depicted in photographs taken by the Mining Warden is above ground in the form of a hill.  Mr Proctor said that the area has been drilled to a depth of 200 feet.  The resource will be drilled and blasted to shatter the quartz thence trucked to Bundaberg for processing.  It is estimated that 200,000 tonnes of quartz may be taken from the site.  The site will be worked for about five weeks continuously for four periods in a year - consisting of one week for setting up holes and blasting and four for removal of the material.  Mr Proctor said that one truck per hour could be expected into and out of the site between the hours of 7.00 am and 5.00 pm, although the last truck for the day could be expected to be out by 3.00 pm as trucks would be required to be at the depot in Bundaberg no later than 4.30 pm.  Mr Proctor is of the opinion that the construction of the road (which he believes has to be made to the satisfaction of the Shire Engineer) will be of benefit to the property and I note that the lease will contain a condition for the provision of gates/grids where necessary.  Mr Proctor adheres to the offer of compensation made in the sum of $500 per annum.
           The case put by the appellants is essentially the same as that put before the Mining Warden.  For some fourteen years or so since the lot has been owned by the appellants they have run about 90 head of breeders on the block.  Calves are taken off as weaners.  The lot is subdivided into two paddocks. Cattle (Brahman cross) graze over the whole of the area except when mustering.  Other improvements on the property consist of a dip and yards, two dams (one dry) and windmill.  Cattle are dipped and worked in accordance with district practices - dipped every month to six weeks during summer months.  Mrs Lavering who represented herself and her husband is of the opinion that the effects of blasting and truck movement will sterilise for grazing purposes about 142 hectares (350 acres) of the block.  She is of the opinion that the carrying capacity will have to be reduced to about half or 45 head.  The appellants have no argument with the assessment of $100 per annum made by the Mining Warden for deprivation of the surface of the lease as "the lease area of 2.16 hectares is largely taken up by a rocky quartz outcrop".  Their main complaint falls for consideration under those headings of section 7.38(3) dealing with diminution of the use (and value) of the land.  In this respect the appellants believe that during the working of the mine, the utility (grazing) of the area will be reduced due to noise effects (including truck movement) and that some permanent damage will result through erosion.  They are of the opinion that the capital value of the lot will be reduced during the period of the lease.  They say that the whole property (this lot and a small adjoining lot) has been for sale for $140,000 or about $180 per acre.  They say that the utility of the windmill watering facility off the dedicated road which is the only source of water for one paddock in a drought will be reduced.  On considering the effects they submit that the following "costs" should be taken into account -

(a)loss of income per annum - 45 calves at $250 per head = $10,000 per annum;

(b)agistment 45 cows/calves @ $2.50 per head/week x 52 weeks = $5,850 per annum;

(c)loss of three cows at approximately $450 = $1,350.

The latter claim is based in losses (prolapse) through inability to work the property at any time. 
           It is convenient to restate some general principles before proceeding further with the evidence.  So far as is relevant to this case these principles may be found in Smith v. Cameron (1986/87) 11 QLCR 64. In that case the Court saw an affinity between the taking up of a Mining Lease for a limited period with the acquisition of an easement over land; that the Act (in this case s.7.38) identifies matters which are to be taken into consideration but does not prescribe a method of valuation for the purpose; that each case must be considered according to the terms and conditions of the lease and the frequency and magnitude of the disturbance likely to result in consequence to the claimant's proprietory rights and that compensation must be assessed on the assumption that the applicant for the lease will act reasonably and at all times in accordance with the terms and conditions of the lease -

"It should be stressed that negligent or other tortious acts done by the employees or agents of the Constructing Authority are not compensable before us, nor is the probability of such acts occurring.  Lawful use only and its consequential effects, if any, call for our assessment." Joyce v. Northern Electric Authority of Queensland (1974) 1 QLCR 171 (LAC)

On these principles it is evident that compensation may be assessed on a "piece meal basis" or an "overall" basis.  In the circumstances of the subject case I prefer the latter approach.
           The term of the lease is for five years.  It is now settled that access will be taken to within 180 metres of the site by public access.  It follows that any nuisance flowing from the use made of the dedicated (public) road is not compensable.  The claimants have referred to cattle on the property as "bush cattle".  However, the evidence shows that the herd is worked on numerous occasions throughout the year in accordance with district practices.  Evidence heard by this Court over the years (both with respect to mining claims and compensation for the taking of land for public purposes) is that cattle soon become accustomed to traffic and noise including mining operations.  Nevertheless with the activity and dust which could be generated, it can be expected that the grazing value of land on the fringe of the operations and the access road could be affected to some extent.  It would appear to me in considering the activity and its effects that a prudent person would not reduce the carrying capacity of the lot.  However, I am inclined to the view that it may not carry as well as it would without the operation.  In this respect I find the evidence of Mrs Lavaring dealing with agistment rates of assistance.  Were the loss in production (same number but not carrying as well) equated with an agistment rate of 10 head at $2.50 per week a sum of $1,300 dollars per annum results.  The addition of the sum of $100 per annum made by the Mining Warden and accepted by the appellants for compensation for deprivation of the surface of the site added, together with the penalty applied by the Mining Warden under paragraph (c) of subsection 4 of the section, compensation per annum would equate $1,540 or a capital sum of $7,700.  I am satisfied on reflecting upon the evidence that compensation of this order is reasonable. 
           Accordingly the appeal is allowed, the determination of the Mining Warden is set aside and compensation is determined in the sum of $1,540 per annum.  I find no reasons to depart from the manner of the order for payment made by the Mining Warden.  It is therefore ordered that compensation, at the option of the applicant miner, shall be paid as follows:

(a)the sum of $7,700 within one month of the notification of grant of the lease by the Minister.

or

(b)the sum of $1,540 within one month of the notification of grant of the lease by the Minister, and yearly thereafter at the rate of $1,540 per annum on the anniversary of such date with interest at the rate of 9% on the balance of compensation outstanding.

I make no order as to costs.

DM WHITE
  President of the Land Court