Chief Executive, Department of Lands v Higbie
[1995] QLAC 7
•3 March 1995
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Re:Appeal against determination of unimproved value by the Land Court -
Valuation of Land Act 1944. AV93-374
Chief Executive, Department of Lands v.
Jack W Higbie and Kari Higbie
Delivered at Brisbane this third day of March 1995.
J U D G M E N T O F M A J O R I T Y
This is an appeal by the Chief Executive, Department of Lands (the appellant), against the determination of the Land Court allowing an appeal by Jack W Higbie and Kari Higbie (the respondents) against the decision of the appellant to value Lot 212 on Plan CSH 1381, parish of Cressbrook, in the sum of $88,000 for the purposes of the annual valuation of the local government area of Esk as at 31 March 1992. The valuation is required to be made under the Valuation of Land Act 1944 (the Act).
Before the Land Court the respondents contended for an unimproved value of
$30,000. The disparity in value is dependant upon the correct manner in which the subject land should be valued. It is the contention of the respondents that the land should be valued as "farming" land for the purposes of the Act. For that purpose the appellant would submit that the land should be valued at $48,000. The appellant however submits that the land should be valued as a rural residential site. For that use the appellant contends and the respondents agree that the appropriate value is
$88,000.
The subject land contains an area of 64.31 hectares. The lot is situated about 11 kilometres north of Esk with access obtained from the bitumen sealed Brisbane Valley Highway. Power, telephone, school bus and mail services are available. The land is described in the report and valuation of Mr EG Ridley, registered valuer in the employ of the Department of Lands, as comprising mostly steep slopes of Mt Ottaba with some easier slopes towards the Brisbane Valley Highway. It is not in dispute that the summit of Mt Ottaba provides a building site which affords panoramic views to the extent of 360 degrees including views of part of Lake Wivenhoe. There also appears to be no dispute that the building site can only be accessed by the construction of a cut and fill track at considerable expense. The attraction that the site had to offer had something to do with the purchase of the land by the respondents in 1976 in a vacant
state, mainly for "recreation and investment" purposes. By mid-1981 (commenced at the end of 1980) a cabin or kit home of about 60m2 was constructed on the site of Mt Ottaba. Roof water was collected for domestic and septic purposes. The purpose of construction of the cabin was for recreational use - "just a weekender". This use was described by Mr Higbie as sporadic until about 1990. Since then they have not used the cabin.
The use of the land for "farming" purposes began shortly after purchase. The respondents did not want to see the land lie idle. The lot was fenced. A dam was installed and a bore sunk. Shortly after the construction of these improvements, an arrangement was entered into with a dairy farmer (Mr Slaughter) to "lease" the land in return for the payment of rates of about $240 per half year. He eventually relinquished his rights and an agreement was entered into on similar terms with Mr and Mrs Dennehy who are dairy farmers in the neighbourhood of the subject land. In this arrangement it was tacitly agreed that the "lessees" would maintain these farming improvements and this apparently has been done. Rates levied on the property at the time of hearing of the matter in the lower Court were of the order of $1,500 per annum. Mr Higbie and Mrs Dennehy gave evidence in the lower court. While the cabin was not used by the owners (or the "lessees") during the relevant valuation period, it is clear from the evidence given in the Land Court and in the submission by Mr Higbie before us, that the owners did not see the arrangements with the "lessees" as excluding their rights to residential/recreational use of the land and cabin. It is also clear that Mr Higbie did not participate in the farming activities carried out on the land by the "lessees" nor did he contend that he was in the business of agisting cattle.
The learned Member found that "both the owners and the Dennehys agree that the 'lessees' may use the cabin if they so wish". As it was accepted that the business conducted by Mr and Mrs Dennehy on the land in conjunction with their farm was a business of "farming" within the meaning of s.17 of the Act, the appeal was allowed.
We are satisfied after hearing Mr Higbie that it was never intended that exclusive use was given or intended to be given over the whole property to Mr and Mrs Dennehy.
Thus there is a dual use of the land (a) for residential/recreational purposes by the owners in part and (b) by a "farmer" in part in return for the payment of rates levied on the property by local government.
The relevant section of the Act containing the definition of farming is set out in the decision of the Court below. The interpretation given the section by the Land Appeal Court is contained in the judgment of AR Thomason v. Chief Executive, Department of Lands (AV93-103) (which case was heard at these sittings of the Land
Appeal Court). We do not propose to repeat these reasons. Shortly stated in the context of the facts of this case the Court has held -
(a)that the issue is to be determined by asking the question whether the
business or industry of grazing the subject land represents the dominant use of the land;
(b)that the parameters in determining the issue are not confined (economically) to the activity of the grazing of cattle on the subject land in isolation when that activity forms part of a business of grazing conducted on other land; and
(c)that "the proper approach to be taken when ascertaining the dominant use of land is to consider such matters as the amount of land actually used for any purpose, 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 section 17(2), 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. When undertaking this exercise, one cannot ignore the conclusion that an objective observer would reach from viewing the land as a whole."
In the subject case the area of the lot is about 64 hectares. The appellants occupy (spasmodically) a very small part of the land. The remainder is improved and used for grazing purposes by farmers - Mr and Mrs Dennehy who have run up to 30 head of cattle on the property for periods of up to nine months in a year. It is not in question that the business or industry of grazing conducted on the subject land by the farmers in conjunction with other land held by them satisfies the criteria specified in paragraphs (c) and (d) of the definition and having regard to the intensity, visual and spacious aspects of the uses made of the land, we are led to the conclusion that the dominant use of the land is for farming purposes.
The value which would be applied by the Chief Executive for this purpose is in the sum of $48,000. This opinion of value was given by Mr EG Ridley, who is a registered valuer in the employ of the Department. We prefer his opinion to that of the appellants. The valuation will accordingly be determined in the sum of $48,000.
The appeal is allowed, the determination of the Land Court is set aside and the unimproved value of the subject land as at 31 March 1992 is determined in the sum of Forty-eight thousand dollars ($48,000).
J.
Justice of the Supreme Court
President of the Land Court
Member of the Land Court
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