Benson v The Valuer-General

[1991] QLAC 20

[1991] QLAC 20

 

  LAND APPEAL COURT,

BRISBANE.

28th June, 1991.

Re:     Appeal against a decision of the Land Court -
  Determination of unimproved value - Shire of
  Caboolture.  AV90-65

John H. Benson and Holly L. Hudlow
  v.
  The Valuer-General

J U D G M E N T

On the grounds that a decision of the Land Court handed down by the learned President on 20th February, 1991, was "contrary to law", in affirming a valuation of the Valuer-General, this appeal now comes before the Land Appeal Court.
           The property subject of the valuation is described as Lot 4 on RP 181320, Parish of Pine, County of Stanley.  It contains an area of 26.24 hectares.  As at 31st March, 1989, the unimproved value was assessed by the Valuer-General in the sum of $77,000, the basis of which assessment was that the use of the property was as a rural homesite.
The appellants' case, which was conducted by Mr A.R. Thomason, acting as agent, is that the land should be valued in terms of Section 11(1)(vii) of the Valuation of Land Act of 1944 (as amended) as being exclusively used for purposes of the business of primary production. It should be said that this Court handed down a judgment on 27th August, 1990, dismissing an appeal against a decision of the Land Court relative to the previous valuation of the Valuer-General as at 31st March, 1988, when Mr Thomason's submission then was that the Land Court had erred in not finding that the land fell to be valued as being exclusively used for purposes of the business of primary production, or alternatively that the Valuer-General had erred in not exercising his discretion to create two parcels, one for the area on which the home is erected and the other for the balance land.
Mr Thomason complains that the judgment of the Land Appeal Court in finding that "there was no primary production by the appellant" erred and that subsequent Courts should not be bound by that judgment. His thrust in this matter is that because the wording of Section 11(1)(vii) of the Act is "the" business rather than "a" business, the total use of the land, from the growing of grass to the final production activity, in this case, the produce of milk, must be seen as "the" business. To overcome what is seen by this Court, and clearly by the previous Land Appeal Court, as the flaw in this continuing argument - i.e. the meaning of "exclusive use" - the appellants' submission is that the residential use of the property is essential to the first ingredient of the primary production cycle, the growing of grass.
           The circumstances are that a neighbouring dairy farmer a Mr Dawes, paid the appellants at the relevant time $2,500 per annum for the agistment of 20 adult dairy cows.  The appellants are responsible for the growing of grass, the management and maintenance of the improvements including pastures, water and fencing.  The appellants live on the property in a one bedroom dwelling spending the equivalent of about eight months in each year in residence, the balance overseas.  The residential improvements on the property occupy only a relatively small area.
           Mr J.H. Benson was called to give evidence and provided a written statement outlining the recent history of the property prior and subsequent to its purchase by the appellants.  He confirmed his input into "the" business of primary production.  He keeps no records as to actual cost incurred in the growing of grass or the necessary management functions associated with his input into the full primary production cycle.  Since the acquisition of the property by the appellants there has been no sowing of pasture nor have the existing grasses been fertilised.  Mr Benson believes his functions, if properly costed, would exceed the income he derives from it.  It is clear from his evidence that Mr Benson's motives are genuine in his efforts to manage and maintain the land and the improvements to a standard which he sees as demanded by the high quality of the property for primary production usage.
           The appellants say that nothing has changed since the previous Land Appeal Court hearing but they now agree that their activities are not of sufficient scale to constitute "a" business in itself.  With this proposition we agree.  We also agree with the submission that the property is used for "the" business of primary production.  We see this predominantly because of the activities of Mr Dawes.  Regardless of the standards of management or the efficiency with which Mr Benson conducts his activities, which indeed on the evidence have improved the carrying capacity to its current twenty head of pregnant dairy cows, we cannot accept that this segment of the primary production cycle is of sufficient scope to demand incidental on-site management as an adjunct to the predominant segment of the cycle, the production and sale of milk by a neighbour, with the necessary and adjacent, on-site infrastructure.  We see any reasonable interpretation of the appellants' predominant use of the subject property as being of a rural residential nature and any input into the primary production scheme of things as being incidental to such residential use, satisfying the personal standards of the appellants. 
           It follows that we, as did the Land Appeal Court before us, find that the land involved is not used "exclusively" for the purposes of the business of primary production, and the property is not entitled to the protection provided by the legislation for exclusive use for the purposes of the business of primary production, and that the valuation is not "contrary to law".
           The appeal is dismissed. 

J.
  Judge of the Supreme Court.

Member of the Land Court.

Member of the Land Court.