Allan v Chief Executive. Department of Natural Resources
[1997] QLAC 164
•10 August 1997
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TOWNSVILLE
Re: Appeal from the Decision of the Land Court
Valuation of Land Act 1944
Valuation Roll No: 707-2855
Local Government: Douglas Shire (V97-71)
BETWEEN:
John S and Elaine Allan
Appellants
and
Chief Executive. Department of Natural Resources
Respondent
(Hearing in Townsville)
REASONS FOR JUDGMENT
Judgment delivered this Tenth day of August 1998
Background:
This is an appeal against the decision of the Land Court delivered on 15 October 1997, dismissing an appeal against the unimproved value of land on the Mossman/Daintree Road, about 2 km south of Wonga Beach, which is about 10 km north of Mossman. The subject land is described as Lot 162 on Plan SR180, Parish of Whyanbeel, and has an area of 2.175 ha. At the relevant date of 1 January 1996 the unimproved value appealed against was $130,000. The appellants had estimated that the unimproved value was $30,000.
The appellants argue that the learned Member, in coming to his decision, has erred in his consideration of the use of the subject land for apiculture when determining whether the use satisfied the requirements of s.17 for the purposes of "farming" under the Valuation of Land Act 1944 (the Act). In the Court below the learned Member found inter alia that without evidence as to financial viability of the apiculture activity it is difficult, if not impossible, for the appellants to carry the burden of proof placed upon them by s.56(2) of the Valuation of Land Act.
The appellants previously unsuccessfully appealed to the Land Court against the unimproved value assessed by the Department at 1 January 1995 (AV95-449), claiming that the land should have been valued on a concessional basis under s.17 of the Act. The appeal in that matter was dismissed on the ground that the use of the land for apiculture at that time was not the dominant use of the land. In the current matter now appealed, the learned Member found no reason to depart from the former decision in AV95-449, determining that the dominant use of the land is for rural residential purposes.
Mr D Turnbull of counsel appeared for the appellants. Mr J O'Rourke, a legal officer employed by the respondent, appeared for the chief executive.
The Evidence:
Before examining the evidence, we turn to the legislation and note that direction in respect of the exclusive use of the land for the purposes of "farming" is found in s.17(2) which states:
"(2) In subsection (1) -
'farming' means -
(a)the business or industry of grazing, dairying, pig farming, poultry farming, viticulture, orcharding, apiculture, horticulture, aquiculture, vegetable growing, the growing of crops of any kind, forestry; or
(b)any other business or industry involving the cultivation of soils, the gathering in of crops or the rearing of livestock;
if the business or industry represents the dominant use of the land, and -
(c)has a significant and substantial commercial purpose or character; and
(d)is engaged in for the purpose of profit on a continuous or repetitive basis."
The appellants' current argument is based upon Mr Allan's statement that his sole source of income is from the practice of beekeeping, part of which is undertaken upon the subject land; and that he has a legal certificate of registration (A220) from the Department of Primary Industries under the Apiaries Act 1982. The appellants say that they maintain 120 beehives in locations in the Mount Molloy area, which produce 1,000 litres of honey per annum, providing a gross income from the operation of some $8,000 per annum, returning a net income of $4,000 per annum. It was suggested by Mr Turnbull that in the succeeding year (1996) the actual gross annual income had been only $4,115, with expenses of about $3,000, with a net annual profit for that year of $1,114. The appellants supplement that income by Mrs Allan working part-time at a hospital.
The appellants submit that the beekeeping is undertaken as a migratory type of enterprise, with most of the beehives being located on other properties separated by distances of 30 to 40 km from the subject land. A shed upon the subject land is used for the breeding of Queen bees for the apiculture business, together with some storage of bulk honey. The Queen bees, which are bred upon the subject land in some 20 hives, are then taken out to the distributed beehives. The subject land is also used as the residence for the appellants. Some bottling of honey products is conducted in the residence. The extraction of honey is conducted at the sites of the working hives.
The appellants argue that the nature of the apiculture business is such that they could not conduct the business without the shed and storage upon the subject land, which is fundamental to the success of the enterprise. The respondent concedes that the appellants do operate an apiculture business from the subject land which, in terms of s.17 of the Act, is accepted as used for the purposes of an apiary, on a continuous or repetitive basis for the purposes of profit. However, the respondent argues that the use of the land for "farming" (apiculture) purposes, does not represent the dominant use of the land. The respondent further argues that the nature of the farming business does not satisfy the criteria of a significant and substantial commercial purpose or character.
Mr Turnbull referred to the findings of the Land Court in SF and H Craig v. Chief Executive, Department of Lands (1994-95) 15 QLCR 190, and also GT and BG Taylor v. Chief Executive, Department of Lands (1992-93) 14 QLCR 477. In the Craig matter the land was used for the growing of rainforest timbers, while in the Taylor matter the land was used for the purpose of the agistment of horses. In both cases the use of the land for a farming purpose under s.17 was accepted, but in both matters the appeals were dismissed as the businesses were seen as not being of a significant and substantial commercial purpose or character. In the Taylor matter the dominant use of the land was accepted as being for farming purposes.
However, the appellants here seek support from the words of the learned President (as he is now), in Taylor (supra) where he said at p.489:"However, it will still be necessary to consider each case on its own merits and it is still not possible to pose a simple test in this regard, although it now seems that the criteria laid down in the last quoted extract from Crawford's case must be distinguished because of the 1991 amendments. Each enterprise is different and it is not possible to set numerical or financial requirements which would be applicable for all or any of them."
In the context then of considering each case on its merits, the appellants argue that it is appropriate to consider the appellant's circumstances when making the judgment about whether the business is significant and substantial, and whether it is the dominant use of the land. There is no argument that the apiculture business is the sole income for Mr Allan, and that the use of the shed and storage upon the subject is important to the apiculture business. It may be argued that, in comparison to community standards, the business may be seen as modest. However, is that relevant to the appellants' circumstances?
Following a decision of this Court in Crawford v. The Valuer-General (1990-91) 13 QLCR 138, amendments to the legislation in 1991 have had the effect of making the test of deciding the scale of operations which constitute a business more stringent in its application (Taylor v. Chief Executive, Department of Lands (supra), p.489).
While there can be no simple universal test of the economic benefit that needs to be applied to the subject matter in respect of s.17, there is also no evidence to suggest that the appellants' business of apiculture has a significant and substantial commercial purpose or character.
The Dominant Use of the Land:
Had the business been found to have a significant and substantial commercial purpose or character, then it would have remained for the appellants to show that the business represented the dominant use of the land. The appellants argue that the nature of most farms is such that there is a dwelling upon the land, which is ancillary to the real purpose of farming the land.
Mr Allan sought comfort in the findings of Rankin & Co v. The Valuer-General (V77-93), 18 November 1977, unreported, a matter where the appellant resided upon the land subject of the valuation, and operated a sugar-cane farm on land separated from that land by a road. In that matter the learned Member found that the residential site was in fact used in conjunction with the other land for the purposes of primary production.
Mr Allan believes that the use of the shed upon the subject land, in conjunction with the 120 beehives on the other properties in the Mount Molloy area, is analogous to the Rankin & Co matter. He argues that the existing dwelling upon the subject land is ancillary to the purpose of the business of beekeeping. He also argues that, because of the nature of beekeeping, it is normal in the industry for beehives to be moved from one area to another, often on properties owned by other people.
In considering whether a particular apicultural business qualifies specific parcels of land for valuation pursuant to s.17 of the Act, it matters not that the business activity extends to lands owned by others. This is no different from circumstances where a qualifying business of grazing or dairying, as examples, involves the agistment of livestock on land not owned by the grazier of dairy farmer. In AR Thomason v. Chief Executive, Department of Lands (1994-95) 15 QLCR 286, this Court found that it is the use of the land to be valued which is important, rather than the identity of the person using it. Nevertheless, even if both paragraphs (c) and (d) in the meaning of "farming" are satisfied - which is not the case here - the farming purpose for which any parcel of land is used, must first be the dominant use of that specific parcel. It might well be, in a particular case, that where several parcels of land are used for a purpose of farming, some of those parcels may qualify for valuation under s.17, while others do not.
The decision in Thomason went on to conclude that the proper approach to be taken when ascertaining the dominant use of the land is to consider such matters as the amount of land actually used for any purposes, the nature and extent and intensity of the various uses of the land, the extent to which land is used for activities which are incidental to a common business or industry of a type specified in s.17, the extent to which land is used for purposes which are unrelated to each other, and the time and labour and resources spent in using the land for each purpose. Those matters should be seen in the context of what an objective observer would conclude from viewing the property.
In the current matter, on the evidence before us, the overall impression of an objective observer of the subject is more likely to have resulted in the conclusion that the land is used primarily as a residence, with the apiculture activities being incidental to that use. For this reason we believe that the dominant use of the subject is for rural residential purposes.
Finding and Order:
The appellants have failed to show that the subject land is exclusively used for the purposes of farming, as defined in s.17(2) of the Act.
The land should be valued as a rural residential site and there is no evidence to show that the chief executive's valuation of $130,000 on that basis is wrong.
The appeal is dismissed.
CULLINANE J
JUSTICE OF THE SUPREME COURT
RE WENCK
MEMBER OF THE LAND COURT
NG DIVETT
MEMBER OF THE LAND COURT
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