Hannant v Chief Executive, Department of Lands

[1994] QLC 41

[1994] QLC 41

 

  LAND COURT

BRISBANE

12 August, 1994

Re:  Appeal against categorisation for rental purposes -
  Land Act 1962
  VC94-85.

Geoffrey C and Norma D Hannant
  v.
  Chief Executive, Department of Lands

D E C I S I O N

This is an appeal against the decision of the Chief Executive, Department of Lands to include Special Lease 31/42665 (being Lot 53 on Plan FS52, parish of Moonbi, county of Fraser) in category 4 for rental purposes.
           Category 4 of the Land Regulations 1988 covers uses for "Commercial and Industrial" purposes.  The lessees contend that the lease should be included in category 9 which category is divided between 9.1 and 9.2 leases being 9.1 Tourism (Mainland) and 9.2 Tourism (Island) leases.  Category 9 leases are defined under Regulation 12E as meaning:

"A lease is a category 9.1 or category 9.2 lease if and only if it is a lease for the purposes of a major tourist facility or a major resort development or is a lease ancillary to either of those purposes.  "

The subject special lease is of an area of abt. 10 hectares situated off the beach on the eastern side of Fraser Island and about 14 kilometres north of the town of Happy Valley.  The lease was granted in priority to the appellants under the provisions of s.203 of the Land Act 1962 (the Act) for a term of 30 years from 1 January, 1980.  The purpose of the grant was for "Business (Camping Ground)" purposes.  The lease was subject to development conditions including a condition:

"The Lessees shall, within two years from the commencement of the term of the lease and to the satisfaction of the Minister, effect improvements on the leased land in the nature of tourist (Cabin and Camping) accommodation and ancillary facilities of a value of not less than $250,000.  The concept of the Camping Ground and access thereto shall be generally in accordance with the Lessees' lease application registered in the Department of Lands on 13th November, 1978. "

Special condition 2 provided that any development was to be in accordance with local government by-laws.  Condition 6 provided that conversion of tenure of the lease under s.207 of the Act would not be approved.  Under the Town Plan for the Area the land is zoned "Special Facilities (Beach Resort, Camping Park, Kiosk and Fuel Dispensing)".  This type of zoning is designed to cover a number of uses and generally speaking is both specific as to use and site specific.
           Mrs Norma Hannant who represented herself and her husband said that at the valuation date development of the area included a camping park, shop (kiosk), fuel dispensers, picnic areas, water and showers/toilets.  The development covers about 25% of the leased area.  She is of the opinion that returns from the camping component vis-a-vis the retailing aspect are about equal.  She agreed that in order to obtain the lease a proposal was put before the Department and that the purpose of the grant as stated and as complemented by the use of the words "in the nature of tourist (cabin and camping) accommodation and ancillary facilities" in the conditions thereof is a fair reflection of what was proposed.  In contending that the lease should be included in category 9, she stresses that the activity conducted on  the land is a tourist activity in the sense that custom is exclusively tourist orientated.  Further she said that the existing development which covers about 25% of the site is intended as stage 1 only and that proposals for the future include the provision of cabin  accommodation and hotel/motel.
           Mr DR Gaedtke, registered valuer in the employ of the Department of Lands, is of the opinion that the lease cannot be included within category 9 as it does not satisfy the criteria, that is that the lease is not a lease "for the purposes of a major tourist facility or major resort development".  The context of a major resort development in his mind in this region would include Kingfisher Bay Resort.  Were that development taken as an example of a category 9 lease (assuming that it was upon leased land) neither he nor Mrs Hannant would contend that the subject development could be given a similar classification.  It may possibly come close to that were the long range plans implemented but there are problems associated with that submission  which I shall deal with shortly.  Mr Gaedtke, having weighed the uses between commercial and accommodation, came to the conclusion that the only category which would apply to the facts was category 4 - commercial and industrial which in his interpretation includes service orientated commercial or business purposes.  No alternative criteria could be found.
           The difficulty confronting the submission of Mrs Hannant is that there appears to me to be a clear link between the purpose for which a lease is granted and the particular category.  The subject lease was granted under the provisions of s.203 of the Act.  It was for a term of 30 years.  The lease carried development conditions but these in terms of that section could not have been seen to have been major improvements.  In this context I refer to the third paragraph of the section which reads as follows:

"The term of such a lease shall not exceed 30 years except where -

(c)the proposed conditions of the lease require the erection of substantial structural improvements which, in the opinion of the Minister, would be abnormally costly; or

(d)by reason of a proposed condition of the lease or a provision of this Act the tenure of the land in question could not be converted under Division  2 of Part 8,

when the term of such a lease shall not exceed 75 years.  "

Alternatively, had a major development been proposed a lease may have been granted under s.210.  This section enables a lease to be granted without competition to any person "who has effected or proposes to effect upon the land substantial improvements for any manufacturing or industrial enterprise or for accommodating and providing recreational or other facilities for tourists". 
           It may be seen that the lease carries a condition providing that conversion of tenure under s.207 of the Act would not be approved.  On reading the Act and the definition of category 9 leases it seems to me that this category is designed to include those leases of land which are costly to develop, for example, a lease under s.210.  I am thus led to a conclusion that the subject lease does not satisfy the criteria contained in category 9.  In saying that I have given no weight to long range plans in the minds of the lessees which to be implemented may require a surrender or amendment of the existing lease and more than likely an alteration to the zoning of the land.
           The appeal is accordingly dismissed and the decision of the Chief Executive affirmed.

President of the Land Court