Queensland Grain Handling Authority v Minister for Lands
[1993] QLAC 12
•4 June 1993
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BRISBANE. 4 June, 1993.
Re:Appeal by the Crown against decision of the Land Court Special Lease 16/48152
Jurisdiction as to Determination of Rent.
Lessee: Queensland Grain Handling Authority.
J U D G M E N T
This matter comes before the Court by way of an appeal by the Crown against a finding of the Land Court that it had no jurisdiction to determine a rent for the second rental period of Special Lease No 16/48152, Dalby District. The rental period purportedly began on 24th January, 1991. The essence of the finding is that there is no provision for rental periods in the instrument of lease. The consequence of such finding, assuming that it is correct, is that the rental payable by the lessee on taking up the lease would continue for the term of the lease of 30 years from 24th January, 1986.
The lease is of Lot 28 on Plan RG 671, Town Glenmorgan, containing an area of
11.3 hectares. The lease was granted for Business (Grain Handling Facilities). It was granted under the provisions of the Land Act 1962 (the Act). Part VIII, Division 1, of the Act contains the authority for the grant of special leases. Such leases may be granted to the highest bidder by auction (s.198) or in priority (s.203). The subject lease was issued in priority under the provisions of section 203 of the Act. The section, so far as is relevant, provides -
"203 Issue of special leases without notification (1910, s.179) The Minister, with the approval of the Governor in Council, may, without notification published in the Gazette, issue to any person a special lease of -
(a) any Crown Land; .................
...... subject to such conditions as to rent or otherwise as the Minister thinks fit."
The subject lease, after reciting the authority for the grant (s.203(a)), proceeds to state, among other things which are not relevant to the question before the Court, that the lease is for a term of years as set forth "in Schedule II hereto" and that rent is payable "in accordance with the Land Act 1962-1986". Further it is provided that the grant of the lease is "SUBJECT TO the Reservations hereinafter specified and to the Conditions specified in Schedule IV hereto and such other Reservations and Conditions and may be contained in and declared by the Land Act 1962 - 1986 and the other Laws of Our said State". Schedule II states that the term is 30 years commencing on 24th January, 1986. The lease is silent as to whether the term is divided into rental periods. In August 1991, the Minister at the request of the Lessee (the Lessee being dissatisfied with the rent determined by the Minister) referred to the Court the matter of the determination of the rent for the "second period" of the lease commencing on 24th January, 1991. The learned Member in the Court below found that the proceedings (the reference) was a nullity as the lease document did not provide for rental periods. His reasoning is found on page 4 of the decision -
"That the instrument of lease does not provide for rental periods is not in doubt. It follows that there can only be rental periods for the lease if it can be concluded that the Minister has determined that there be rental periods (Section 204 (3) of the Act). Now as I read the letter from the Secretary of the Land Administration Commission to the lessee Authority, there was a proposal for the lease to provide for rental periods, but this proposal in reality was not formalised since no provision was made for rental periods in the instrument of lease. It is noted that the instrument of lease document in evidence in this case varies in format from the instruments of lease issued in past years, which were normally endorsed with the specified rental periods and the opening rent. Now as I see the matter, it can only be concluded that the lease has rental periods if the letter of proposal from the Land Administration Commission can be read as one with the instrument of lease. I cannot see this as being the case as the instrument of lease really stands alone."
The proposal referred to by the learned Member is on the record. It comprises a letter dated 7th August, 1986 with an attachment headed "Terms and Conditions of
Proposed Special Lease." The letter reads as follows - " Dear Sir/Madam,
I desire to inform you that approval is being obtained for the issue of a new Special Lease in the Tara Shire and the Dalby Land Agent's District as follows:-
Section: 203(a) of the Land Act 1962-1985
Special Lease No: 16/48152
Lessee: QUEENSLAND GRAIN HANDLING AUTHORITYDescription: Lot 28 on Plan RG671 Parish: Erringibba County: Rogers Town:
Area: 11.3 ha
Term: thirty (30) years from 24.1.1986 Annual Rent: $60.00 (1st 5 yrs)
Rental Period: five (5) years.
Action is proceeding towards preparation and issue of the Instrument of Lease and you will be further advised. "
That part of the attachment which is relevant for the purpose provides -
"Terms and Conditions or proposed special lease under para (a) of section 203 of the Land Act 1962 - 1985
Land Agent's District: Dalby
Purpose of Lease: Business (Grain Handling Facilities) Description of Land: Lot 28 on Plan RG 671, parish of Erringibba. Area: 11.3 hectares
Rent:To be paid yearly in advance and for the first period of five years to be at the rate of $60.00 per annum.
Term: To be thirty (30) years. Re-appraisement of
Rent:The rent for the five remaining periods of five years each shall be determined by the Minister. "
Mr O'Connor, Principal Legal Officer in the Department of Lands, put before this Court further correspondence consisting of an offer made to the lessee on 6th December, 1984, in which the second paragraph reads -
"I advise that it has been approved in principle to seek Executive Authority for the excision of the area edged yellow on the attached sketch from Reserve for Camping and Water Purposes R138, parish of Erringibba and for the grant of a priority Special Lease over such area in favour of The Queensland Grain Handling Authority upon the terms and conditions set out on the attached schedule."
The letter went on to say that a survey was necessary and that the lessee may occupy the land "prior to completion of legal formalities" and that upon survey of the land "a formal offer of the proposed Special Lease will be made." The schedule attached to the letter is to the effect of the schedule stated previously.
Formal offer of a lease was conveyed by letter of 4th June, 1985 under the hand of the Secretary Land Administration Commission of a priority special lease over the area "subject to the terms and conditions as outlined in my letter to you of 6th
December, 1984". The following paragraph of the letter reads as follows -
"If the offer is to be accepted it will be necessary for the attached surrender document to be completed and returned to this Office together with the relative Permit to Occupy No. 3246 and the sum of $83.00 as apportioned hereunder:-"
Reference is then made to the need on acceptance of the offer to determine the permit to occupy and to excise the relevant area from Reserve for Camping and Water Purposes R138.
The correspondence of 7th August, 1986 followed in which it may be seen that the lease commenced as from 24th January of that year. We were informed by Mr O'Connor that the annual rent was paid in July. Although we have no direct evidence to the effect, we assume, that the date of commencement of the term of the lease followed the date of registration of the surrender of the occupancy by the lessee under the permit to occupy. As from that date it seems clear to us that the terms and conditions of the occupancy were governed by the grant of the lease. It would be incongruous and seemingly contrary to the obvious intentions of the parties to construe the grant of the lease as not incorporating the agreed conditions unless it could be established that their
validity was dependent upon their inclusion in the lease. On our perusal of the Act an endorsement of such matters in the form of lease is not required save for the exception mentioned later herein. This is the substance of the submission made by Mr O'Connor. In our opinion the submission is correct. In perusing the provisions of Part VIII of the Act we see that there is a parallel in this respect between special leases issued following public competition (s.198) where terms and conditions (including rental periods) are specified in the sale notification published in the Government Gazette and leases issued in priority where terms and conditions (including rental periods) are determined by the Minister. These parallels are particularly evident in sub. ss. (3) and
(4) of Section 204. Sub. s.(3) provides:
"(3) The term may be divided into rental periods of such duration as may be specified in the sale notification or as determined by the Minister."
We observe that under sub. s.(6) of the Section it is provided -
"(6) The lease shall be subject to all the conditions specified in the sale notification or, in the case of a special lease issued other than pursuant to the provisions of section one hundred and ninety-eight of this Act, to such conditions as the Minister deems fit to impose.
Every lease shall be subject to a condition that the land comprised in the lease shall be used for the purpose for which the lease was granted and the instrument of lease issued in respect of that land shall be endorsed accordingly."
We have observed that prior to the Land Act and Another Act Amendment Act of 1981 (No.21 of 1981) s.204. of the Act provided in respect of leases granted under S.203, that the Minister determine the rent for the first rental period and that where rental periods were determined the annual rent for the second and each subsequent rental period was to be determined by the Court. The form of lease then prescribed by the regulations (Form 18) in the second schedule was worded in a manner which made provision for the inclusion of the rent payable for the first rental period (if rental periods were determined) followed by a statement providing that the rent for the second and any subsequent rental period shall be determined by the Court. The amendment to the
section in 1981 provided that the Minister determine the rent, not only for the first rental period (if rental periods were determined) but also for any subsequent rental period of the lease. In circumstances in which S.204(5A) and 204(5B) applied (inserted by the Amendment Act), a lessee had the right to require that the rent for the second and each subsequent rental period be determined by the Court. In 1984 (Government Gazette 2/6/1984 p.894) the regulations were amended. Form 18 was replaced with an abbreviated form containing wording which in so far as is relevant specified that the grant was subject to "Paying unto Us on or before the first day of January in each year, the yearly rent payable in accordance with the Land Act 1962-19 ." The form went on to provide that the lease was "SUBJECT to the Reservations hereinafter specified and to the conditions specified in Schedule IV hereto and such other Reservations and conditions as may be contained in and declared by the Land Act 1962-....". There is no provision in the form for the insertion of the rent payable for the first rental period or in respect of the manner in which rent was to be determined for the second and any subsequent rental period unless it was intended that such matters should be specified in Schedule IV. However, it is clear in the wording of the form that Schedule IV was not intended to be exhaustive of conditions applying to the lease.
The lease of the subject land issued in the form of Form 18. Under sub(2) of
section 6 of the Act, it is provided that:
"(2) The grant or lease shall be made subject to such reservations and conditions as are authorised or prescribed by this Act or any other Act, and shall be made in the prescribed form, and being so made shall be valid and effectual to convey to and vest in the person therein named the land therein described for the estate or interest therein stated."
Subsection (6) of s.204 to which we have referred provides that the lease shall be subject to "such conditions as the Minister deems fit to impose". The authority for the grant s.203(a) provides that the lease may issue "subject to such conditions as to rent or otherwise as the Minister thinks fit." In our view on reading these provisions the
obligation to pay rent is as much a condition of a lease as a condition requiring say, the provision of development works save that the consequence of non-payment may differ from that which may follow non compliance with another condition: see s.s.249 and
297. It seems therefore that a condition as to rent could be included in Schedule IV but need not be included. Rather it seems that the Legislature in redrafting Form 18 by using the words "the yearly rent payable in accordance with the Land Act 1962-19.." intended that such details be not included in the lease.
In Plastic Enterprises Pty Ltd v The Southern Cross Assurance Company Limited (1968) Qld State Reports 401, the Full Court in considering an issue governed
by the provisions of s.279 of the Act said at p 405
"Looking to the subject matter we see an exceptional mode of dealing with a lease of Crown land embedded in an elaborate code for controlling and regulating all dealings with such holdings."
We find this statement of considerable import in the subject matter. It seems clear to us that the application for this particular lease, whether made direct to the local Land Commissioner or to the Secretary Land Administration Commission, was processed by the Commission and that the correspondence under the hand of the Secretary in June, 1985 and August, 1986 recorded the conditions upon which the Commission as delegate of the Minister (acting under a delegation made by instrument in writing in accordance with the provisions of s.23(4) which may be read with the provisions of s.24(8) under which authority is presumed until the contrary is proved) was prepared to take the steps necessary to have the lease granted under the hand of the Governor in Council in August, 1986. On formal acceptance of the offer Executive Authority for the grant of the lease subject to the conditions conveyed by the Secretary is sought by way of a Minute taken up by the Minister. It follows that the instrument of lease which issued under hand of the Governor in Council issued subject to all the conditions imposed in the formal notification to the lessee which preceded the issue of the formal instrument of lease. It may equally be said that both the rent payable under
the lease and the rental periods fixed were "determined by the Minister" under s.204(3) and s.204(4). We have concluded that with the changes made by regulation in 1984 such matters are not intended to be included in the instrument of lease. In the circumstances we find that it would be incorrect to construe the formal instrument of lease in this case as one would construe an ordinary lease not having its genesis under the Land Act in which of course both the rental payable and any rental period specified would be essential terms.
We accordingly find that the reference of the matter to the Court is a valid reference and that the Court has jurisdiction to hear and determine the rent for the rental period in question. The matter is therefore remitted to the Land Court for determination.
Justice of the Supreme Court
Member of the Land Court
Member of the Land Court
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