Lees v Valuer-General, Department of Natural Resources and Mines
[2013] QCAT 442
•30 August 2013
| CITATION: | Lees v Valuer-General, Department of Natural Resources and Mines [2013] QCAT 442 |
| PARTIES: | Mr Lionel Cedric Julian Lees (Appellant) |
| v | |
| Valuer-General, Department of Natural Resources and Mines (Respondent) |
| APPLICATION NUMBER: | GAR144-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 23 August 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Paul Kanowski, Member |
| DELIVERED ON: | 30 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Valuer-General’s decision of 29 January 2013 to issue advices of non-compliance with correction notices to Mr Lees is set aside. 2. The matter is returned to the Valuer-General for reconsideration with the direction that Mr Lees was entitled to lodge objections under section 105 of the Land Valuation Act 2010 (Qld) against the land valuations issued on 28 March 2012 for lots 205 and 206 on plan B732, as an owner of the land as defined in the Act. |
| CATCHWORDS: | Meaning of ‘owner’ – adverse possession of land – whether adverse possessor entitled to object to valuation Land Title Act 1994 (Qld) s108B, Schedule 2 Re Johnson [1999] QSC 197 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Introduction
Mr Lees is now the registered proprietor, as tenant in common with Peter Franklin Moore, of two adjoining blocks of land on Moreton Island: lots 205 and 206 on plan B732. On 28 March 2012 the Valuer-General issued notices advising that he had valued the lots at $630,000 and $670,000 respectively. These valuations were made under the Land Valuation Act 2010 (Qld), and so they have effect for land tax and local government rating purposes. This review is about whether Mr Lees was entitled to object to the valuations, as he was not yet a registered proprietor of the land in 2012. Only an ‘owner’ of the land can object to a valuation.[1]
[1] Land Valuation Act 2010 (Qld) s 105(1).
The issue to be decided is whether Mr Lees was an owner (as defined in the Land Valuation Act 2010) of the land (lots 205 and 206) as at 28 March 2012, despite not being a registered proprietor. Mr Lees argues that he was the owner by way of adverse possession. Adverse possession is a legal concept. It involves a person being in possession of land for a long period, without the permission of (relevantly) the registered proprietor, and without challenge from the registered proprietor. In time the ‘adverse possessor’ can gain a legal interest in the land. There is a process available under the Land Title Act 1994 (Qld) for the Registrar of Titles to register an adverse possessor as the new registered proprietor.
Background
Mr Lees did not become the registered proprietor (along with Mr Moore) of the land until April 2013. Until then lot 205 was registered in the name of Edgar Hinetable, and it had been registered in that name since 1863. Lot 206 was registered in the name of David Elliott, and it had been registered in that name since 1868. The valuation notices of 28 March 2012 were addressed to Mr Hinetable and Mr Elliott (though both must have been long deceased).
Mr Lees lodged objections to each valuation. The Valuer-General then issued correction notices. These notices said that the objections had not been properly made because they had not been signed by the owner of each of the lots. Mr Lees responded that the registered proprietors had been dead for decades, and that he and Mr Moore had become the owners. The Valuer-General then issued advices of non-compliance with the correction notices. These reiterated the Valuer-General’s opinion that the objections had not been properly made, and advised that the objections would not be considered. Mr Lees then applied for an internal review of this decision, but a delegate of the Valuer-General upheld the decision. Mr Lees has applied to QCAT for an external review of the decision.[2]
[2]Correction notices, advices of non-compliance, and internal and external review are provided for under the Land Valuation Act 2010 (Qld) ss 116(2), 119(1), 175-177, 179.
Was Mr Lees an owner of the land as at 28 March 2012?
‘Owner’ is defined in the Dictionary which is the Schedule to the Land Valuation Act 2010:
owner, of land—
(1) An owner of land is the person who—
(a) is entitled to receive the rent for the land; or
(b) would be entitled to receive the rent for the land if it were leased at a rack-rent.Note -
Rack-rent of land is the highest possible rent for the land. It implies that the land is leased commercially.(2) However, the term does not include the State.
(3) An owner of land includes each of the following—
(a) for freehold land—its registered proprietor;
(b) a purchaser of land to be held as freehold land that is being purchased from the State under an Act;
(c) a lessee of land held from the State, and any manager, overseer or superintendent of the lessee who resides on the land;
….
In the objection, Mr Lees said that he and Mr Moore were the owners, as the persons entitled to the rent for the land.
The Valuer-General’s delegate acknowledges that Mr Lees and Mr Moore say they have received holiday rent from the house on the land. The delegate does not accept, however, that Mr Lees and Mr Moore were entitled to receive rent for the land (prior to becoming registered proprietors). Rather, the registered proprietors Mr Hinetable and Mr Elliott were entitled to receive the rent. Until such time as Mr Lees and Mr Moore became registered proprietors, the rights of Mr Hinetable and Mr Elliott were not extinguished.
Mr Lees says that in 1978 he and Mr Moore (the brother of Mr Lees’ then wife, Helen Lees) inspected the land, which had been abandoned and was overgrown. Mr Lees undertook Titles Office and Court searches but found nothing to indicate that the estates of Mr Hinetable or Mr Elliott had ever been administered. Ms Lees and Mr Moore then took possession of the land in 1978 by clearing the boundary lines and fencing the land, and then maintaining the fences. Mr Lees paid the rates, by agreement with Ms Lees and Mr Moore. In 1987 Ms Lees signed over her half interest in the land to Mr Lees. From that point Mr Lees and Mr Moore continued to maintain the fences, clear weeds, and pay the rates and land taxes. In 1991 Mr Lees and Mr Moore applied to the Registrar of Titles to become registered proprietors as adverse possessors. Ultimately this application was rejected because the Supreme Court decided, in a similar case,[3] that 30 years of adverse possession was required, not merely 12 as had been argued. In 1997 Mr Lees built a house on one of the lots, and a barbeque (for use in connection with the house) on the other lot. The house has been used by Mr Lees and his relatives and friends for holidays, and rented out to holidaymakers. There has never been any challenge to Mr Lees’, Ms Lees’ or Mr Moore’s possession of the land, for example by any person claiming to be entitled by succession or intestacy from Mr Hinetable or Mr Elliott.
[3] Re Johnson [1999] QSC 197.
The Land Title Act 1994 sets out the process for an adverse possessor to seek to become the registered proprietor of a lot. The process involves an application, supporting declarations from the applicant and others such as neighbours, public advertising, notification of neighbours, and consideration by the Registrar of Titles of any caveats lodged by other persons claiming an interest in the lot.[4] On 8 February 2012 Mr Lees and Mr Moore lodged an application with the Registrar of Titles, as adverse possessors, to become the registered proprietors of the land. The process took some time. So far as I am aware, no caveats were lodged. Finally, in April 2013, the Registrar registered Mr Lees and Mr Moore as registered proprietors of the land.
[4] Land Title Act 1994 (Qld) s 18 and Part 6 Division 5.
The Registrar of Titles must have been satisfied that Mr Lees was an adverse possessor as defined in the Land Title Act 1984: namely a person against whom the time for bringing an action to recover the lot has expired under the limitation of actions legislation, and who, apart from the Land Title Act 1994, is entitled to remain in possession of the lot.[5] The 30 year limitation period ran from 1978. It is immaterial that the adverse possession was initially by persons other than Mr Lees himself: it is sufficient if there is continuous adverse possession by a series of people.[6] Having regard to the documents which Mr Lees and Mr Moore placed before the Registrar of Titles, it is apparent that the Registrar must have been satisfied that there had been adverse possession of the land, as described by Mr Lees and Mr Moore, since 1978. I see no reason to reach any different conclusion.
[5] Land Title Act 1994 (Qld) Schedule 2.
[6] See Carmel McDonald et al, Real Property Law in Queensland (2nd ed, 2005) 356.
Mr Lees argues that as registered proprietor he is deemed to have become the owner from the date his application for registration was lodged, 8 February 2012. He says this was the date used for land tax purposes.
I am not convinced, though, that the registration itself had retrospective effect. I am not aware of any provision in the Land Title Act 1994 that expressly confers a retrospective operation on such registration. Nor would retrospectivity arise by necessary implication. The nature of the process – including the need for advertising and the notification of neighbours after the application is lodged, the opportunity for caveats to be lodged, and the need for the Registrar of Titles to form an opinion (that the applicant is an adverse possessor) and to consider the exercise of a discretion (to register the applicant as the owner) – is such that the likely intention of Parliament was that registration would take effect only from the day on which the Registrar of Titles decided to exercise the discretion in the applicant’s favour.
But that is not the end of the matter. The definition of ‘owner’ in the Dictionary in the Land Valuation Act 2010 is somewhat unusual. There is a broad primary definition, relating to entitlement to receive rent. The definition goes on in paragraph 3 to list various categories of people, who are said to be included as owners. The intended purpose of the list is not explained in the Dictionary. Having regard to the structure of the definition, and to the reference in the list to managers and others who would not ordinarily have an entitlement to receive rent, I view the list as expanding and giving examples of the primary definition, rather than limiting it. Accordingly, the fact that there is a registered proprietor (whether long dead, as in this case, or not) would not necessarily preclude another person coming within the primary definition of ‘owner’.
The reference in the definition of ‘adverse possessor’ in the Land Title Act 1994 to an entitlement (apart from under the Act) to remain in possession, must presumably contemplate an unregistered right under the general law. The leading statement in the general law is by the Privy Council in Perry v Clissold[7] that a person in adverse possession:
has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the [limitation period], his right is for ever extinguished, and the possessory owner acquires an absolute title.
[7] [1907] AC 73.
These comments were endorsed by the High Court of Australia in 1934 in Wheeler v Baldwin.[8] The Court held that a person in adverse possession acquires a fee simple estate in the land. (In more contemporary language, this is a freehold interest or a freehold title).
[8] (1934) 52 CLR 609.
Neither of these cases, though, considered adverse possession in the context of a statutory scheme for registration of title by adverse possession, such as the scheme in the Land Title Act 1984, or dealt with competing claims between a registered proprietor and an adverse possessor. Under the Land Title Act 1984, if the Registrar of Titles decides to register the adverse possessor as the owner of the lot, the Registrar must cancel the registration of the person previously registered as the owner, and must ‘create in the applicant’s name an indefeasible title …’.[9] It could be argued that the scheme for registration means that, prior to registration, an adverse possessor of registered land has only an inchoate title. Registration confers ‘indefeasibility’ – holding the land free of unregistered interests, subject to limited exceptions[10] – as well as advantages such as the opportunity to offer a registrable transfer upon sale. However, I consider that the definition of ‘adverse possessor’ indicates that Parliament must have contemplated that an adverse possessor has, prior to registration, title under the general law as described in Perry v Clissold and Wheeler v Baldwin. Registration does not create the interest in the land. Rather, that interest must exist before the Registrar of Titles can register the applicant as the proprietor.
[9] Land Title Act 1994 (Qld) s 108B.
[10] Ibid s 184.
It is also noteworthy that a registered proprietor does not obtain the benefit of indefeasibility in respect of ‘the interest of a person who, on application, would be entitled to be registered as owner of the lot because the person is an adverse possessor’.[11] This confirms that if a registered proprietor came forward after the limitation period had expired, his or her interest in the land would yield to the adverse possessor’s.
[11] Ibid s 185(1)(d).
Of course there was no possibility of the registered proprietors coming forward in the present case. Had any person claiming under Mr Hinetable or Mr Elliott come forward, Mr Lees and Mr Moore could have successfully resisted their claims because the limitation period had expired in 2008. I am satisfied that in 2012 Mr Lees and Mr Moore had an ‘absolute title’ against any other claimants, albeit one that could be further enhanced by registration.
I find that in 2012 Mr Lees had an unregistered freehold title to the land. A person with freehold title can, of course, rent out the land. So I find that Mr Lees was entitled to receive rent for the land in 2012, or would have been if the land had been leased at a rack-rent. He was, therefore, an owner as defined in the Land Valuation Act 2010 as at 28 March 2012.
Conclusion
It follows that Mr Lees was entitled to object to the 2012 valuations as an owner of the land. The objections he lodged on 28 May 2012 were ‘properly made’[12] because they were signed by Mr Lees who was an owner entitled to object.
[12] Under the Land Valuation Act 2010 (Qld) s 112(1).
When it received the objections, the Department had very limited information about Mr Lees’ claimed interest in the land, so it is quite understandable that it issued the correction notices. However, in hindsight, it can be seen that they were not warranted.
I think it is sufficient to confine the orders to the setting aside of the decision under review, and the sending back of the matter for reconsideration in accordance with a direction about Mr Lees’ entitlement to object. This is because at a pre-hearing compulsory conference, the parties agreed that the only question to be determined was whether Mr Lees was so entitled. It can be assumed that the Department will proceed to process the objections, in light of the direction, without the tribunal having to make further orders about the validity of the correction notices etc.
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