Lello v Chief Executive, Department of Natural Resources and Water
[2009] QLC 108
•31 July 2009
LAND COURT OF QUEENSLAND
CITATION: Lello v Chief Executive, Department of Natural Resources and Water [2009] QLC 0108 PARTIES: Olive Margaret Lello
(appellant)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NOS: AV2008/0633, AV2008/0634 DIVISION: Land Court of Queensland – General Division PROCEEDING: Appeal against annual valuation under the Valuation of Land Act 1944 DELIVERED ON: 31 July 2009 DELIVERED AT: Brisbane HEARD AT: Not applicable – Heard on the Papers MEMBER: Mr PA Smith ORDER: The appeals are allowed, the valuations of the separate parcels are set aside, the subject lot is to be valued as one lot only, and the value of the subject lot, as at 1 October 2007, is set at $250,000. CATCHWORDS: Valuation – unimproved value – decision arising from preliminary conference – agreed statement of facts – agreed valuations – interpretation of s.34 Valuation of Land Act 1944 – two valuations for one lot – meaning of ‘owner’ and ‘separate ownerships’ – use of the word ‘may’
Valuation of Land Act 1944
Land Court Act 2000APPEARANCES: Not applicable – Heard on the Papers
Background
This matter proceeds to determination in somewhat unusual circumstances. On 27 February 2009, I presided at a preliminary conference with respect to both valuations appealed against in this matter pursuant to s.36 of the Land Court Act 2000. During the preliminary conference, it became evident that the only point of difference between the appellant and the respondent related to an interpretation of s.34 of the Valuation of Land Act 1944 (the VLA). During the course of the Preliminary Conference, the parties agreed as to the appropriate valuations should the view of the respondent as to the proper interpretation of the VLA be accepted, and the parties also agreed as to the proper valuation should the view of the appellant with respect to s.34 of the VLA be accepted.
The parties agreed that the most cost effective way of determining the matter was for the parties to provide the Court with an agreed statement of facts, following which the parties would make their written submissions as to the proper interpretation of s.34 of the VLA.
All parties have made their respective submissions in this matter and I consider it appropriate to proceed to a decision on the papers.
Agreed Facts
The facts agreed to as between the appellant and the respondent are comprehensive, and are set out in full below:
“AGREED STATEMENT OF FACTS
Olive Margaret Lello
(applicant)
v.
Chief Executive, Department of Natural Resources and Water
(respondent)
FILE NO: AV2008/0633 and AV2008/0634
DIVISION: Land Court of Queensland
Appeal against annual valuation of land under the Valuation of Land Act 1944Summary of Property Details:
Local Government: Hervey Bay City Council (now Fraser Coast Regional Council)
Property ID Numbers: 662251 & 662252
Registered Proprietor: Olive M Lello
Real Property Description: Part A and Part B of Lot 21 SP194924, Parish of Vernon
Area:Part A - 873 square metres
Part B- 1176 square metres
Total2049 square metres
(Actual area on plan SP194924 is 2051 square metres)
Situation:55-57 Helsham Street, Point Vernon.
Valuations Issued: Part A - $175,000
Part B- $141,000
Date of Valuation: 1 October 2007 is the relevant date fixed by the Chief Executive by virtue of authority under section 20 of the Valuation of Land Act 1944.
Date of Issue: 17 March 2008
Effective Date: 30 June 2008
Agreed Facts:
[1]Olive Margaret Lello, the applicant, has appealed against the assessment of the unimproved value assigned to her land by the respondent, the Chief Executive, Department of Natural Resources and Water. The applicant is the registered proprietor of a single lot located at 55 and 57 Helsham Street, Point Vernon more properly described as Lot 21 on Survey Plan 184924, Parish of Vernon. Formerly, 55 and 57 Helsham Street constituted two separate lots (previously described as Lots 1 and 2 on RP184924). However, the applicant amalgamated the two lots to form one lot within Survey Plan SP184924, which was lodged on 11/10/2005. The amalgamation of lots is not something that requires development approval under the Integrated Planning Act 1997. Prior to the amalgamation, 55 and 57 Helsham Street were valued as two separate parcels.
[2]After the amalgamation, the Chief Executive, Department of Natural Resources and Water issued two valuation notices for Lot 21, under Section 34(2) of the Valuation of Land Act 1944. The unimproved value determined by the respondent as at 1 October 2007 (also after the amalgamation) was $175,000 for 55 Helsham Street (described as Part A), and $141,000 for 57 Helsham Street (described as Part B). In other words, the Chief Executive valued the one lot as two separate parcels. It is these valuations, or more precisely, the decision to value the single lot as two separate parcels, that the applicant is now challenging. The parties agree that if this Court determines that the single lot should be valued as two separate parcels, then this appeal should be dismissed. There is no dispute between the parties about the quantum of the valuations of $175,000 for 55 Helsham Street, and $141,000 for 57 Helsham Street, respectively. However, if this Court determines that the single lot should be valued as one parcel, the parties agree that the appeal should be allowed, and a new valuation of $250,000 should be determined for the single parcel.
[3]There are relevantly no factual issues in dispute between the parties. Accordingly, the parties have also agreed that the Court may dispose of the matters in dispute between them ‘on the papers’ without the need for a further hearing, under section 36(6) of the Land Court Act 2000.
[4]The further agreed facts are these. The subject lot has an area of 2051 m² (thereabouts) and is located in the suburb of Point Vernon, a suburb on the foreshore of Hervey Bay. The land, as at the date of valuation, is improved with two detached dwellings, each capable of separate occupation. The two parcels that have been valued adjoin one another – there is no road cutting the lot in to two distinct parts, for example. One dwelling is at the front of the property. The other is at the rear. The rear dwelling is serviced by a gravel driveway. It is also separated from the dwelling at the front of the lot by a conventional fence. All the usual urban services and amenities are readily available. Neither of the two dwellings is let. The applicant resides in the front dwelling. The rear dwelling is infrequently used by the applicant’s family for accommodation purposes on family visits or holidays. The rear dwelling has a full kitchen and laundry. The rear dwelling is capable of being separately occupied by another person altogether, but it not. Most of the time, the rear dwelling is vacant. Under the Hervey Bay Planning Scheme 2006 the land is designated Low Density Residential. Under this designation, the land is readily capable of subdivision in to 2 distinct standard formal allotments, with a ‘battle axe’ driveway servicing the rear lot. If a development application were made to subdivide the land in this way, the prospects of success for that development application would be very good.”
Submissions of the Applicant
The applicant has provided the Court with concise written submissions. The appellant’s principal contentions are as follows:
“[4]The issue to be determined is of short compass. The applicant asserts that the respondent ought to have valued the single lot as a single lot, and not as two separate lots, by reference to section 34(1) and (2) of the Valuation of Land Act 1944.
[5]The applicant does not challenge the prima facie power of the respondent to declare separate parcels under section 2 of the Act (see Colonial Sugar Refining Co Ltd v. Valuer-General (1970) 37 CLLR 176 and Raynbird v. Valuer-General (1980) 7 QLCR 99).
[6]However, the power under section 2 must be exercised concurrently with the power to declare separate parcels under section 34 of the Act (MS and DL Bramwell v. Chief Executive, Department of Natural Resources (V98-858) at page 7). For the respondent to do otherwise is for the respondent to act capriciously or unreasonably, or to at least fail to have regard to all the material and relevant facts. If that is found to be the case, the respondent’s valuation is ultra vires (or at least that seemed to be the conclusion of the Court in Bramwell as interpreted by the Court later in Stay v Department of Natural Resources (AV99-392) at page 10, first paragraph).
[7]If the Court is satisfied that the respondent has acted ultra vires, the Court should set aside the decision on the strength of the decision in RM and AJ Beanland v. Valuer-General (1986-87) 11 QLCR 131, and the Court’s power in section 66 of the Act.
[8]If the requirements of section 34(2) have not been fulfilled, then the respondent should not have exercised the respondent’s power to declare a separate parcel, because such a declaration would be without justification (see Bramwell at page 7).
[9]The requirements of section 34(2) have not been fulfilled in this case, namely the requirement that the parcel “be lawfully held under separate ownership”.
[10]Whilst there is no dispute that a subdivision approval for the existing lot, for a 1 into 2 lot subdivision, could be obtained from the relevant local authority for the lot, no such approval exists. There is ‘no legal standing’ for the implementation of section 34(2) (see Stay at page 11, first paragraph).
[11]Even if the wider meaning of the word ‘held’ in section 34(2) is to be applied, and ‘held’ is to be interpreted as synonymous with ‘used’ (as was the case in Colonial Sugar and Australian Estates Co Ltd v The Valuer-General (1980-81) 7 QLCR 199), there is still no legal standing. As is evident from the Agreed Statement of Facts at paragraph [4]:
(a)neither dwelling is ‘let’;
(b)the front dwelling is occupied by the applicant;
(c)the rear dwelling is infrequently used by the applicant’s family for accommodation purposes on family visits or holidays.
[12]The applicant submits that the use of the rear dwelling by family members for family visits or holidays falls well short of the use of the dwelling by some other person(s) for permanent residency, and can be factually distinguished from the findings of fact arrived at in Colonial Sugar. Indeed the factual circumstances in this case are far less ‘aggravated’ than those appearing in Bramwell, where there was no dispute that the two dwellings in the case were actually ‘occupied separately’. Bramwell succeeded in its appeal to the Court.
[13]Finally, the circumstances in this case satisfy the respondent’s published policy (VAL/2002/337 – Version 4 dated 11 January 2008) with respect to how the discretion under sections 2 and 34 is to be exercised. That policy is clear, that where there are a number of buildings on the one surveyed lot and the buildings are let to one person or no buildings are let, a separate valuation is not to issue.
[14]In the circumstances, section 34(2) has not been satisfied. The power in section 2 must be applied concurrently with section 34(2). Accordingly, the respondent has failed to have regard to all of the material and relevant facts, and the separate valuations ought to be set aside, and a single valuation of $250,000 be substituted.”
Submissions of the Respondent
The respondent has provided the Court with detailed written submissions. Key elements of the respondent’s submissions are as follows:
“[9]The subject land, Lot 21 on Plan SP184924 has constructed upon it two separate dwellings each adapted to separate occupation. The dwellings were built for separate occupation and can be lawfully held as separate lot, if the owners chose to avail themselves of the subdivision option.
[10]Secondly, Lot 21 was formerly held as two separate lots (Lots 1 and 2 on Plan RP184924) where two separate valuations were provided. The subdivision of the single lot into two separate lots was approved by the Council, before the owners amalgamated the lots back into a single lot on 11 October 2005. It is evidence from the agreed statement of facts ASF [4] that any future application to subdivide the single lot into 2 separate lots in a similar configuration that existed previously would wholly succeed, because the land is zoned Low Density Residential and there are no legal or physical constraints in approving subdivision application.
…
[17]As an ‘otherwise direction’ has been made under section 34(1) VOLA, the Chief Executive has to satisfy the requirements in order to declare a separate parcel of land to be valued. This entails meeting the specific requirements section 34(2) of VOLA.
…
[21]Applying the requirements of section 34(2) VOLA to the current circumstances, it is apparent that there are, separate buildings on the land, which are obviously adapted to separate occupation and which could be lawfully held under separate occupation.
…
[23]The words ‘may respectively be’ have been left out of the phrase quoted by Appellant which incorrectly alters its context to suggest that it is mandatory to hold the separate parcels in separate ownership, therefore the requirements of section 34(2) VOLA are not fulfilled.
…
[25]Applying the whole phrase of ‘…may respectively be lawfully held under separate ownership’ in the context of the current case and the analysis in Colonial Sugar Refining Co Limited v Valuer-General, it is clear that the owner is holding the second parcel of land separately and this parcel can be lawfully held under separate occupation in the future, if the owners chose to avail themselves.
…
[29]Regardless of the current usage by the Appellants, the second dwelling on the land is obviously adapted for separate occupation, which meets the requirements under section 34(2). The agreed statement of facts reinforces the fact that the dwelling can be utilised separately, even if only infrequently by family members on a seasonal basis.
[30]While the Appellants state that the second dwelling is not currently let, there is no know constraint to prevent the Appellant from renting the second dwelling for the purposes of profit.
…
[32]The extract referred to in AS [13] is intended for commercial or industrial holdings that have multiple buildings on one surveyed lot either not let or let by one person. Examples provided in the last paragraph of the policy states:
‘Examples of developments where separate parcels are not to be declared are district, neighbourhood or regional shopping centres, industrial sheds, educational institutions and an integrated tourist resort complex. (That is a complex which shares major infrastructure such as water, power, airfield and access roads etc.)’
[33]It is clear that the circumstances in the present case do not fall within the examples of development stated above. The property is a residential home site that contains a separate second dwelling on the property capable of separate occupation. The Appellant’s contention that the residential home site satisfies the department policy is flawed.
…
[38]The Chief Executive has considered all material and relevant facts in the circumstances when applying its power under section 34(2) of VOLA and submits that the unimproved value of the land as at 1 October 2007 to be $175,000 for 55 Helsham Street (described as Part A) and $141,000 for 57 Helsham Street (described as Part B).”
The respondent referred to a number of authorities in support of its contentions, including Bramwell v Chief Executive, Department of Natural Resources,[1] Stay v Chief Executive, Department of Natural Resources,[2] Colonial Sugar Refining Co Limited v Valuer-General[3] and others.
[1] V98-858, 31 July 2000.
[2] AV99-392.
[3] (1970) 37 CLLR 176 at p.184.
Appellant’s reply
The appellant’s reply submissions dealt with two aspects of the respondent’s submissions, namely the use of the word “and” in the context of the words “and which may respectively be lawfully held” in s.34(2) of the VLA. The appellant contends that the word “and” is conjunctive, not disjunctive, and must be interpreted as a mandatory component of the provision.
As regards the Colonial Sugar decision, the appellant considered the factual question – ‘what is the owner doing with the land?’ and made the following submissions:
“[7]The Respondent places reliance on what is ‘possible’ in relation to the second dwelling, rather than on what is ‘actual’ in relation to the second dwelling.
[8]The Respondent’s argument cannot be accepted because it is counter to the factual question that Colonial Sugar poses – “what is the owner doing with the land?”
[9]If the Respondent is correct, anything that can ‘possibly’ be done, ‘IS’ being done. This seems to run counter to the factual question that must be asked in Colonial Sugar.
[10]Finally, the Respondent cannot read down Policy VAL/2002/337 by referring to an example in it. The Policy is clear.”
The Legislative provisions
Section 34 of the VLA provides as follows:
34 Lands to be included in 1 valuation
(1) Unless the chief executive otherwise directs, there shall be included in 1 valuation—
(a)several parcels of land which adjoin, and are owned by the same person, and where either no part is leased or all the parcels are let to 1 person; or
(b)several parcels of land in the same area which do not adjoin but are worked as 1 holding and used exclusively for the purposes of farming, and are owned by the same person and which, if let, are all let to 1 person.
(2) However, any such parcels of land shall be valued separately if buildings are erected thereon which are obviously adapted to separate occupation and which may respectively be lawfully held under separate ownerships.
(2A) Subsection (2) applies to—
(a)a lease from a GOC, of land leased by the GOC—
(i) from the State; or
(ii) from a lessee of the State; and
(b)a lease from a department of the State or an entity representing the State, of land leased by the department or entity from the State.
(2B) Otherwise, subsection (2) does not apply to a lease of land from the State.
(3) Despite section 35, subsection (1) applies to valuations used for rating and land tax purposes and does not apply to valuations for rental purposes.
(4) In this section—
parcel does not include a parcel the unimproved value of which must be discounted under section 25.
It is immediately apparent that what is meant by the term ‘parcel(s) of land’ is of importance for the purposes of interpreting s34. In this regard, reference must be made to s.2 of the VLA which contains the following definition:
“parcel of land means every part of an area of land which is
separately held by any owner, or any part of an area of land
which the chief executive directs should be valued as a
separate parcel.”
Two Parcels of Land?
Although in the statement of agreed facts, the land is said to be “a single lot”, the question remains as to whether the land could be two parcels of land that adjoin within that one lot. On the facts, the chief executive has directed that the parts should be valued as separate parcels. The chief executive’s power to declare a separate parcel as per the definition in the VLA is qualified by s.34(2). As President Trickett stated in the Bramwell case,[4] after setting out a lengthy quote from Colonial Sugar:
“What that means is that before declaring a parcel in the present case, Mr McDonald, on behalf of the respondent, was required to examine the facts and circumstances in considering whether he should declare a separate parcel. In other words, he would not declare a separate parcel and then consider whether or not the requirements of section 34(2) had been fulfilled. He must, in my view, consider both sections concurrently. If all the requirements of section 34(2) have not been fulfilled, then he should not exercise his power to declare a separate parcel, because such a declaration will be without justification.”
I respectfully agree.
[4] Bramwell v Chief Executive, Department of Natural Resources, 31 July 2000 at p.7.
It is necessary to carefully consider the agreed facts regarding separate occupation and legal use of the subject land. There is no doubt that the subject lot contains two dwellings, each capable of separate occupation. There is also no doubt that neither dwelling is let; the owner resides in the front dwelling, and the rear dwelling is normally vacant but is used infrequently by family members. Further, the rear dwelling is capable of being separately occupied by another person altogether, but is not, and relevantly was not as at the valuation date.
Given the facts as set out in the preceding paragraph, can it be said that the two parcels ‘are obviously adapted to separate occupation’? In my view, the two parcels can be said to be adapted for separate occupation. My reasoning however differs from that of the learned Member in Colonial Sugar.
In Colonial Sugar, workman huts were held to be occupied separately. The Colonial Sugar case can be distinguished on the basis that the huts were “obviously adapted for separate occupation and in fact ordinarily separately occupied”[5] at the time of the valuation, which is not so in the current case. Here, the rear dwelling is not separately occupied, given that such dwelling is normally vacant unless occupied without payment of rent by members of the same family as the owner/occupier of the subject land.
[5] 1970 37 CLLR 176 at p. 187.
The final limb of s.34(2) of the VLA now becomes crucial, given that, on the facts, the rear dwelling is capable of separate occupation, but is not at any relevant date to these proceedings (such as the valuation date) actually separately occupied. May the two dwellings (and therefore the two parcels) ‘be lawfully held under separate ownerships’?
Separate Ownerships.
In Bramwell, President Trickett held that the two residences in question could not be held lawfully as separate ownerships. Like the facts in this case, President Trickett in Bramwell found that there were two houses on the subject land, and that both were capable of separate occupation[6] at the time of valuation. President Trickett then continued:[7]
“There is no doubt that if the appellants had complied with the conditions for family subdivision, the family subdivision could have gone ahead and the land would have been transferred to Mrs Klibbe. A separate valuation would then have had to issue for the 4,000 square metre lot. However, that did not happen…That residence exists because it is a lawful structure under the provisions of the Town Plan as a manager’s residence. It does not exist as a lawful residence under the family subdivision provisions.”
[6] Bramwell, at p. 7.
[7] Bramwell, at p. 8.
In President Trickett’s opinion, it did not matter either way whether there was an option for future town planning to allow for separate residences, even though in that case it did not appear on the face of it to be a possibility. He states:[8]
“It would be contrary to town planning principles to consider that it could later be surveyed from the parent parcel and transferred so as to be held separately from the parent parcel. In my opinion, Mr McDonald has misdirected himself as to the true situation with regard to whether a parcel of 4,000 square metres could be held separately from the balance of Lot 173. In my view, it cannot be lawfully separately held. The residence exists there as a lawful manager's residence. The lawful manager's residence cannot be held separately from the parent parcel.” (emphasis added)
[8] Bramwell, at p. 8.
President Trickett concluded his decision by stating that in declaring a separate parcel of land and valuing it separately, the respondent was acting ultra vires, and that the valuation appealed against was therefore a nullity.
It should be noted that operation of the final limb of what is now s.34(2) of the VLA was not considered by the Court in Colonial Sugar.
Another relevant factor to be considered is the meaning of the word ‘ownerships’. Although ‘ownerships’ is not defined in the VLA, s.7 sets out a detailed meaning of ‘owner’ as follows:
7 Meaning of owner
(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.1
(2)However, an owner does not include the State, but includes—
(a) a registered proprietor of freehold land; and
(b) a purchaser of land to be held as freehold land that is being purchased from the State under an Act; and
(c) a lessee of land held from the State, and any manager, overseer or superintendent of the lessee who resides on the land; and
(d) the holder or lawful occupier of a mining lease; and
(e) a lessee of land held from, or the holder of a licence or permission to occupy from—
(i)the coordinator-general; or
(ii)a GOC; or
(iii)a local government; or
(iv)the Minister administering the Industrial Development Act 1963; or
(v)the chief executive of the department responsible for the administration of the Forestry Act 1959; or
(vi)a water authority; and
(f) the holder of—
(i) n occupation permit or stock grazing permit under the Forestry Act 1959; or
(ii)a permission to occupy under the Land Act 1994; and
(g) a licensee under the Land Act 1994.
(3)A reference in subsection (2) to a lessee includes, if a person or entity representing the State is the lessee of State land, a sublessee from the person or entity.
(4)Despite subsections (1) to (3), owner of land means—
(a) in relation to a valuation of the land for rating purposes—the person who is responsible for payment of the rates; or
(b) in relation to a valuation of the land for rental purposes—the person who is responsible for payment of the rental; or
(c) in relation to a valuation of the land for land tax purposes—the person who is responsible for payment of the land tax.
In my view, the meaning of ‘ownerships’ as referred to in s.34(2) of the VLA is properly ascertained by reference to s.7 of the VLA.. Unless a person is capable of being an owner as defined by s.7, there can be no possibility of separate ‘ownerships’. Specifically, s.7 of the VLA does not include as an owner a person who holds a lease or rental agreement granted by a private owner of land. Therefore, in my view, it would not matter whether or not the second building in this instance was in fact rented by the appellant to a third party or not, as a person who rents a property from a private owner is not an owner for the purposes of the VLA. In-so-far as this view is at odds with the decision of the learned member of the Land Court in Colonial Sugar, I specifically do not follow Colonial Sugar.
Meaning of ‘may’
For completeness, I now turn to an examination of the meaning of the word ‘may’. In general terms, Australian authorities state that ‘may’ should be interpreted with the intent of the legislation in mind and according to the ordinary and natural meaning of the expression. It is explained this way in Butterworths Words and Phrases Legally Defined[9] (as quoted from Australian Telecommunications Commission v Bartley (1988) 84 ALR 261 at 265-266, per Einfeld J):
“The authorities on when the word “may” can be considered mandatory rather than facultative were outlined by a Full Court of this court in Commissioner for Superannuation v Hastings (1986) 70 ALR 625 where Woodward, Keely and Wilcox JJ said at 629: “The leading Australian authorities dealing with the circumstances under which the word ‘may’, when used in a statute, should be interpreted as imposing an obligation are Ward v Williams (1955) 92 CLR 496 and Finance Facilities Pty Ltd v FCT (1971) 127 CLR 106. In the former case Dixon CJ, Webb, Fullager, Kitto and Taylor JJ said (at 505) that ‘it is necessary to bear steadily in mind that it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary or natural meaning’.”
[9] 2006 supplement 516-517.
In my view, the intent of the VLA in so far as s.34(2) is concerned is to limit the conditions to present reality, or, more precisely, the reality as it existed at the valuation date, and not to open the conditions up to unlimited future possibilities. Were the latter the case, it could be argued that, at some time in the future, anything may be possible such that any piece of land, of any configuration, may be lawfully held under separate ownership.
Useful assistance in arriving at this conclusion is found in a deconstruction of the ordinary and natural meaning of the word ‘may’.[10] ‘May’ is a modal auxiliary verb used to express ability or power, in the same way that the word ‘can’ is used. It is a present tense verb, the future tense is ‘might’. Therefore the use of ‘may’ indicates a power or ability that is in the present (not in the future).[11] The ability or power can be expressed in two forms – as a possibility or as permission. Here it is used in the context of permission.
[10] Analysed with reference to A.J. Thomson, A.V.Martinet, A Practical English Grammar, Fourth Edition.
[11] Note that, consistent with this, President Trickett in Bramwell substitutes modal verb “can/cannot” for “may/may not” in respect of s34(2), this is grammatically accurate as “can” is the modern form of “may”.
I now turn to examine the use of the word ‘may’ in context with its use in s.34(2). The clause in question is a passive clause. The tense of the clause is more easily understood if it is reduced to the verbs, subject and object as follows:
…buildings (object)…may (modal verb) be (infinitive) held (past simple) lawfully under separate ownerships
In its active form the clause should read as follows:
(The landholder) (invisible subject) may (modal verb) hold (infinitive) buildings (object) lawfully under separate ownerships
Here ‘may’ could be expressing either permission, or possibility. When the entire clause is reconstructed into its active conditional form, the meaning becomes clearer:
IF (the landholder) (invisible subject) may (can) (modal verb) hold (infinitive) buildings (object) lawfully under separate ownerships THEN any such parcels of land shall be valued separately.
When the clause is reconstructed in its active conditional form it is clear that the word ‘may’ is used to convey permission. That is, if the landholder has legal permission to hold the buildings under separate ownerships at the time of valuation then any such parcels of land shall be valued separately. Clearly, as at the valuation date, the subject land was one lot only, and different parts or parcels of that lot could not be held under separate ownerships.
Conclusion
In summary, any future possibilities as to what may happen as regards the subject block are irrelevant. The parcels were not capable of being held under separate legal ownership in accordance with the VLA at the time of valuation. The result therefore is that the parcels of land could not be valued separately at the time of valuation. It follows that the appeals are allowed, the valuations of the separate parcels are set aside, and the value of the subject lot, as at 1 October 2007, is set at $250,000.
Order
The appeals are allowed, the valuations of the separate parcels are set aside, the subject lot is to be valued as one lot only, and the value of the subject lot, as at 1 October 2007, is set at $250,000.
PA SMITH
MEMBER OF THE LAND COURT