Kretschmann v Minister for Land Management

[1992] QLC 45

[1992] QLC 45

 

 

LAND COURT,

BRISBANE.

6th November, 1992.

Re:     Appeal under Section 11 of the Mining Titles
  Freeholding Act 1980 by the lessees of Miners
  Homestead Perpetual Lease No. 10061, Charters
  Towers Miners Homestead District, against the
  Valuation of the Valuer-General.

DR and AD Kretschmann

v.

Minister for Land Management

D E C I S I O N

This matter came before the Court in Charters Towers on 8th October, 1992.  Although the lodgement of the appeal had been effected by their solicitor, Mr and Mrs Kretschmann appeared at the hearing without legal representation. 
           Mr O'Rourke, Director of Legal Services with the Department of Lands, appeared for the Minister.
           At the outset Mr O'Rourke submitted that the Court did not have jurisdiction to hear the appeal.  A copy of the Certificate of Valuation, prepared by the Valuer-General, in the amount of $23,000, being the valuation appealed against, was tendered, together with copies of the original plan of survey of MHPL 10061 (dated 16th October, 1944) and a plan of resurvey (dated 18th October, 1988).  The original area of the lease was 84 acres 0 roods 31 perches (34.072 hectares).  From the original survey, an area of 64 square metres has been surrendered as new road and an area of 4056 square metres of closed road added, providing a total area as resurveyed of 34.4712 hectares. 
           The Certificate of Valuation dated 6th February, 1991, under the hand of the Valuer-General, contains the following:

"In accordance with the provisions of the Mining Titles Freeholding Act I HEREBY CERTIFY:-

(d)$23,000 was the first effective valuation of the unimproved value of the above described land after 31 December, 1980 and took effect on 26 January, 1989 (Section 8A(b))"

Under Section 8A of the Act, the Valuer-General's valuation of the unimproved valuation effective prior to 31st December, 1980 becomes the freeholding price except in circumstances where a fresh valuation becomes necessary.  Relevant to this particular matter as it stands is Section 8A (b) which states:

"(b)in any other case, the amount of the valuation of the unimproved value of the land made by the Valuer-General under the Valuation of Land Act 1944-1980 which valuation last took effect prior to 31 December, 1980 or, where no such valuation had been made, the amount of the valuation of the unimproved value of the land made under that Act first takes or took effect (whether before or after the date of the application made under this Part) after 31 December, 1980, ....... "

Due to the resurvey of the lease, the Valuer-General has decided (and correctly, in my opinion) that as at the date of application for a grant in fee simple (and I am informed that date was 12th September, 1989) in terms of Section 8A(b) no valuation had been made under the Valuation of Land Act of 1944 which last took effect prior 31st December, 1980, and the amount of the valuation made under that Act which first took effect after that date was $23,000 as at 26th January, 1989.
           It appears that the valuation which last took effect for MHPL 10061 prior to 31st December, 1980 was in the amount of $2,800, but that of course was for the lesser area of 34.072 hectares.
           The grounds of the appeal and Mr Kretschmann's verbal submission at the hearing indicate that the resurvey was the result of protracted dealings with the then Main Roads Department which required the initial surrender of the area of 64 square metres in connection with a minor realignment of the Flinders Highway, to which the lease has frontage.  In return for this surrender, part of the existing road reserve (and an area which Mr Kretschmann suggests is of poor physical quality being of broken gully formation) was closed, then added to the balance area of MHPL 10061.  The lessees see the relatively minor additional area, due in part to its poor physical quality, as providing no benefit to the balance area as compared to the "before surrender" situation. 
           Seeing themselves as victims of the machination of a simple road requirement and through no fault of their own, the lessees, not unnaturally, seek to have the freeholding price reduced to that which it would have been (in terms of the legislation) had there been no resurvey - ie. $2,800. 
The Crown's submission is simply that there is no right of appeal against a valuation effected under Section 8A (b) of the Mining Titles Freeholding Act. And that is so. Section 11, as it was at the date of application, provided the right of appeal against the valuation of the Valuer-General, but only if that valuation was determined under Section 8A (a) or Section 8B. Section 8A (a) refers to land which had been valued in terms of Section 11(1)(vii) of the Valuation of Land Act and Section 8B to land which had not been separately valued at the relevant date "but has been included with other land in one valuation." Neither was the case here.
           If follows that the Land Court does not have jurisdiction to determine the appeal, because the valuation of the Valuer-General was not made pursuant to Section 8A (a) or 8B as stated in the notice of appeal.
           There are circumstances surrounding this matter which are considered worthy of further comment.  It appears that the lessees who now reside in Brisbane had travelled to Charters Towers for the hearing, although combining the trip with other matters.  There was a clear indication that they were not aware that the preliminary point of jurisdiction was to be argued by the Crown.  There had been no prior indication to the Court that the preliminary point was to be argued.  The Certificate of Valuation was not made available to the Court until the hearing commenced.  There had been no prior indication to the Court that the valuation had not been made pursuant to Section 8A (a) or Section 8B as stated in the appeal.  With infrequent sittings of the Land Court in Charters Towers, communication of the circumstances of this case may well have resulted in the matter of jurisdiction being dealt with more expeditiously at another venue. 
Based on the circumstances portrayed to the Court in the verbal submission of Mr Kretschmann, the lessees could well have been significantly disadvantaged by having cooperated in the initial surrendering of part of the lease for road purposes. It is noted that the potential for such a situation to occur has been recognised by subsequent amendment of the Act (as contained in the Lands Legislation Amendment Act 1991) by the insertion of Section 8C, where reference is made to reduction of the area of a lease by resumption or surrender for public purposes.  The section provides for the valuation to be made of the reduced area at the effective date under Section 8A (a) or (b) as if the resumption or surrender had not taken effect for the balance term.  The right of appeal is also widened to allow an appeal against a valuation under Section 8C.  The wording of Section 8C deals with the situation where the area of the lease is reduced, but it might be speculated that the question of an increase in area under circumstances such as occurred here would not have been envisaged when the amending legislation was drafted, otherwise the wording altered may have been more appropriate.  It does not follow that an increase in area of land as had occurred in the subject matter, necessarily creates an altered valuation, as at a particular date.
           While I have found that the Court does not have jurisdiction to determine the appeal, it would seem that a case exists for the lessees to make a formal submission to the Honourable Minister for Lands requesting the facts of the matter to be at least considered in terms of equity and good conscience.

(R.E. Wenck)     
  Member of the Land Court.