Browne v Chief Executive, Department of Lands

[1995] QLC 10

[1995] QLC 10

 

  LAND COURT

BRISBANE

3 March 1995

Re:     Appeal against a valuation
  Local Government: Warwick
Valuation of Land Act 1944
  AV94-356.

John P Browne
  v.
  Chief Executive, Department of Lands

D E C I S I O N

(Hearing at Warwick)

This appeal is against the decision of the Chief Executive, Department of Lands, to apply an unimproved value of $35,500 to Lot 1 on RP 58438, parish of Warwick, for the purposes of the Annual Valuation of the Area as at 30 June 1993.  The appellant values the land at $25,000.
           The subject lot has an area of 14.06 hectares and is located to the north-west of Warwick on Sandy Creek Road about 2 kms off the Cunningham Highway to which the lot has access by gravel road.  The lot is zoned "Rural C" and is improved with a low-set wood and iron dwelling which was moved onto the site.  This dwelling is let and has been let for about 2 years at a rental of $100 per week.  The balance of the lot has been fenced and a dam constructed for stock watering purposes.  It is the intention of the appellant to use this balance land for weaning calves in conjunction with other lands near Yangan.  Due to drought conditions prevailing in the district for some years no usage has been made of the lot for grazing purposes. 
           The appeal was brought on four grounds which are as follows:

1.Adjoining properties are valued at a lower rate.

2.The land is used for agricultural and stock purposes in conjunction with L356/D342 near Yan Gan, which is also in the local authority of Warwick.  I also own that land.  I also farm in conjunction with my families properties around Yan Gan.

3.No water or sewerage is supplied by the council.

4.There is no irrigation or access to Sandy Creek.

In the hearing of the matter, Mr Alexander Browne represented the appellant.  The thrust of the appellant's case was directed to ground 2.  The evidence before the Court given by Mr Browne is that in a normal season the lot may carry 10/12 calves without irrigation and for a period of about 3 months.  At the time of hearing and during the valuation period, no such use has been made of the property due to drought.
           Mr DP Coe, registered valuer in the employ of the Department of Lands, valued the land as a rural residential site and based the value on sales of land used for like purposes.  He said that the value applied to the site reflects an increase in value which was consistent with increases in value of similar sites within the area.  The two sales used for the purposes of direct comparison consist of a sale of a 40ha parcel which sold in November 1992 (Lot 1318M34576, Rosenthal) for $50,000 improved with fencing and minor clearing.  The sale reflected an unimproved land value of about $47,000.  The value applied to the site is $44,000.  In terms of considering a base value for the subject land purely as a residential site (with no added value for size) Mr Coe referred to a sale of a 2ha parcel which sold in August 1992 for $35,000 with fencing and clearing valued at $2,750.  The site which is described as Lot 2 on RP 844574, parish of Warwick, is valued at $29,500 for the purposes of this annual valuation.  The sales support the opinion of Mr Coe that the subject land is reasonably valued at $35,500 as a rural residential site.
           In the subject case there is no dispute that exclusive possession of part of the site has been given to the tenant of the residence for which he pays a rent of $100 per week or $5,200 per annum.  The appellant has retained possession of the balance of the property for grazing purposes.  He has expressed the intention of using the land for that purpose and has put in place improvements which would enable it to be so used when seasonal conditions are favourable. 
           Under the relevant section of the Act (s.17) a farming value may only be applied when land is "exclusively used" for purposes of farming.  "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 Land Appeal Court has held in AR Thomason v. Chief Executive, Department of Lands (AV93-103) that in order to qualify for the protection provided by the section the business or industry of "farming" must represent the "dominant" use of the land.  In the circumstances of this case such a conclusion cannot be drawn.  Accordingly, the appeal must fail.
           The appeal is therefore dismissed and the decision of the Chief Executive is affirmed.

(D M White)       
  President of the Land Court