Amey and Repatriation Commission
[2001] AATA 665
•4 July 2001
DECISION AND ORAL REASONS FOR DECISION [2001] AATA 665
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2000/374
VETERANS' APPEALS DIVISION )
Re DONALD CHARLES AMEY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss WJF Purcell (Senior Member)
Date4 July 2001
PlaceAdelaide
Decision For the reasons given orally at the Hearing of this matter, the Tribunal varies the decision of the delegate of the Repatriation Commission of 9 March 2000, only in so far as the total value of allotments 812, 818, 819 and 820 will be maintained at $120,000.00 for the purposes of assessing the level of service pension payable to the applicant.
(Signed)
W J F PURCELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Income & Assets - whether service pension should be reduced – farming land subdivided and blocks sold - whether valuations of remaining blocks should be on basis of farming and grazing land or highest and best use and comparable sales.
Veterans' Entitlements Act 1986 ss.57, 120
ORAL REASONS FOR DECISION
4 July 2001 Miss WJF Purcell (Senior Member)
This is an application for review of a decision of the respondent (the Commission) of 9 March 2000, which determined that service pension payable to the applicant and his wife, should be reduced from 21 March 2000, due to an increase in the income and assets maintained in the service pension assessment. The decision was affirmed on review by a delegate of the Commission on 20 July 2000 pursuant to section 57 of the Veterans' Entitlements Act 1986 (the Act).
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the parties. The applicant, who gave oral evidence by telephone, appeared on his own behalf. Mr G. Doube appeared for the Commission, which called Mr P. Farnham, Senior Valuer in the Australian Valuer's Office (the AVO).
The applicant, who is 76 years of age, was first granted service pension on 27 June 1991. His pension is assessed under the assets test. On 13 December 1999, he completed an income and assets statement for the purpose of review of his pension assessment. The Department of Veterans' Affairs arranged for a valuation to be carried out by the AVO in respect of the applicant's land holdings. In relation to allotments 812, 818, 819 and 820 in the Hundred of Ripon, Streaky Bay, the AVO valuation, as at 14 February 2000, was a total of $160,000.00 as follows:
Allotment 812 $40,000
Allotment 818 $40,000
Allotment 819 $40,000
Allotment 820 $40,000On 9 March 2000, the Commission reassessed the applicant's service pension on the basis of the valuation of assets provided by the AVO. On 10 April 2000, the applicant lodged an application for review of the delegate's decision, and the AVO was asked to revalue the assets. The AVO revalued the properties as follows:
Allotment 812 $45,000
Allotment 818 $40,000
Allotment 819 $30,000
Allotment 820 $40,000
a Total of $155,000.00.
On 28 August 2000, the applicant applied to this Tribunal for review of the decision. He provided the Commission with a valuation from Mr H. Patterson for $85,500. Mr Patterson's valuation, dated 25 January 2001, reads in part:
"Best Use
The property is currently being used for farming and grazing purposes by the proprietors in conjunction with other land held by them and whilst they had the original Section 349 subdivided into 11 smaller allotments and sold 5 they continue to farm this property as a single unit. Of the 5 allotments sold, 3 in 1996 and 2 in 1998, no interest in the remaining allotments has been shown and the proprietors have stated that it is no longer their intention to dispose of the subject property.
In view of this I consider the best use for the property is for farming and grazing purposes." (Exhibit A1)The Commission referred Mr Patterson's valuation was referred to the AVO, by letter dated 22 March 2001. The AVO advised the Commission, that the valuation had again been reviewed, and a reduction made. A value of $120,000.00 was allocated to the 4 allotments as follows:
Allotment 812
with good access and sea views $33,750
Allotment 818
with good access but limited sea views $30,000
Allotment 819
with poor access and no sea views $26,250Allotment 820
with good access but limited sea views $30,000
Mr Farnham of the AVO reported that he considered that the applicant's valuation, prepared by Mr Patterson, was not based on the concept of the "highest and best use" of the property, which Mr Farnham maintained was integral to the definition of "market value". The Commission advised the applicant of the reduction of the valuation to $120,000.00, but the applicant contends that this valuation is too high.
The applicant disagrees with the basis of the AVO valuation – namely "highest and best use", and contends that any piece of land could be used for higher purpose; that the AVO should only assess his allotments as farming land, until something else happens, and then, if they are sold, he and his wife would have a higher valuation taken into account for the assessment of the rate of service pension.
The Commission argues that it is appropriate that the "highest and best use" be applied. It is not appropriate that "current use" be applied to a valuation. The $120,000.00 for all the allotments, is in line with the most recent valuation of Mr Farnham, who is an experienced valuer, and applied the notion of best use and comparable sales. It submits further that in any event, the valuation values the blocks at less than any of the blocks already sold by the applicant. It is a conservative valuation, to give benefit to the applicant. The only other valuation is from Mr Patterson, using farming purposes as the basis for the valuation and it is clear that he has valued the allotments on farming and grazing basis; and to do so ignores the fact that the legal title was changed by the applicant when he subdivided the allotments. This has enabled alternative uses, and alternative uses have been applied to other of the allotments, which have been sold, and to allotment 811 which has been further subdivided.
The standard of proof which applies to this matter is that of reasonable satisfaction in accordance with section 120(4) of the Act, which provides:
"120 (4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction."
I have had the opportunity of hearing evidence from Mr Amey and Mr Farnham. I consider it appropriate, in all the circumstances of this matter, for the purposes of valuing assets, that the principle of highest and best use should be applied. I cannot accept therefore, the applicant's submissions.
I am reasonably satisfied on the evidence that the appropriate valuation of the 4 allotments numbered 812, 818, 819 and 820 is a total value of $120,000.00 and that this figure should be maintained in the assessment of the applicant's service pension.
For these reasons the Tribunal varies the decision of the delegate of the Commission of 9 March 2000 only insofar as the total value of allotments 812, 818, 819 and 820 will be maintained at $120,000, for the purposes of assessing the level of service pension payable to the applicant.
I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell
Signed: (F M Boekamp)
Personal AssistantDate/s of Hearing 4 July 2001
Date of Decision 4 July 2001
Counsel for the Applicant In Person
Solicitor for the Applicant -
Counsel for the Respondent Mr Doube
Solicitor for the Respondent Dept of Veterans' Affairs
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