Re Hartig

[1994] QLC 48

[1994] QLC 48

 

LAND COURT BRISBANE

24 August, 1994

Re: Liability of a lease to forfeiture - Special Lease 13/48816 - Cloncurry District.

Lessee: A.G. Hartig.

D E C I S I O N

SL 13/48816 containing an area of about 162 hectares issued on 1 April, 1987, to Alfred George Hartig for a term of 30 years. The stated purpose of the lease is for Primary Industry (Market Garden). Included in the conditions of the lease are the following:

"The lessee shall use the leased land for Market Garden purposes only

and for no other purpose whatsoever.

The lessee shall within two (2) years from the commencement of the lease, establish a market garden on the leased land to the satisfaction of the Minister and shall thereafter maintain and work the area as a market garden in a good and husbandlike manner to the satisfaction of the Minister. "

The Honourable the Minister, under the provisions of Section 297(1) of the Land Act of 1962, has referred to the Land Court for hearing and determination the question as to whether the lease should be forfeited since it is alleged by the Crown that the above quoted conditions of the lease have not been complied with.

Called in evidence by the Chief Executive, Department of Lands, was Mark Francis Cranitch, who is the District Manager (Cloncurry) with the Department of Lands. Mr Cranitch outlined the history of the events surrounding the subject lease.  He said that in 1956 an area was surrendered out of Carandotta Pastoral Holding for the purpose of granting to a B. Nathan, a special lease to establish a market garden. Special Lease No 13/21810 subsequently issued for a term of 30 years commencing 1 December, 1956, subject to conditions of no access being provided by the Crown and a market garden being established within the first two years.  The lease was transferred to PJ Fennell in 1974 and in 1977 a request for conversion (in conjunction with the proposal to establish a meatworks by an aboriginal group) was refused, primarily due to an objection from the then Department of Aboriginal and Islanders Advancement.  In 1978, the aboriginal group applied for consent to transfer the lease in its favour,

however, this application was refused. A request in 1979 to change the purpose of the lease to Grazing (Cattle) was also refused and in 1985 the lease was transferred to AG Hartig. The lease expired on 30 November, 1986, and the Land Commissioner's dealing report recommended that the lease not be renewed for many reasons, including:

(a)The subject lease is landlocked within Carandotta Pastoral Holding and the

lessees of the holding have sought to have the area reincluded in the holding.

(b)The leased land is not suitable for agricultural purposes. (Previous cultivation was not on the lease area but on part of the holding adjoining the Georgina River).

(c)There is no permanent water. Previous supply was by pipeline across part of Carandotta Holding.

(d)A change in purpose to allow grazing would not be in the best interests of land use management.

In 1987, after initially refusing to renew the lease, and after representations by Mr AG Hartig, the then Minister for Lands directed that a fresh lease offer be made on the strict understanding that no grazing be allowed and that the area be used for a market garden. It was then that the Special Lease No 13/48816 issued. Since 1988 a number of requests for consent to transfer to the Waluwarra Aboriginal Corporation have been made by that group or the Honourable G.L. Hand, MHR, in his capacity as the then Minister for Aboriginal Affairs. A request for consent to transfer to Jimberella Co-Operative Society Limited was refused on 31 March, 1993. On 25 May, 1993, Mr Cranitch had an on-site meeting with members of the corporation at which all matters of concern were discussed and clarified. On 4 June, 1993, Mr Cranitch had a meeting with AG Hartig to discuss the possible forfeiture of the lease.

Mr Hartig told the Court about his reasons for not being able to work the lease. He says that before it could be worked it had to be fenced to keep out feral pigs, etc., and before it could be fenced he wanted to make sure of its position regarding stock routes and roads. Mr Hartig says the area which was fenced and worked by the first lessee, on good soils, is said to be outside the lease. There are three areas that are fenced - two with netting and one with plain wire. Mr Hartig is at a loss to understand that if the lease was to be for a market garden, then why is its location now shown as taking up dolomite ridges?

Mr Hartig contacted the Manager of Carandotta Station (then a Mr Kevin Servin) to arrange a meeting with him regarding the situation of the lease. This was held on the river.  He also contacted an officer from the Lands Department in Cloncurry to make

arrangements for him to come down to try and sort the matter out. That meeting also took place. Mr Byron Nathan, the original owner, used the country from the Black Gate Fence through to the Roxborough boundary on the western side of the dog netting for cattle breeding. Having that extra country it was not all that necessary to fence. The second owner, at times, also used the same country for grazing purposes. Mr Hartig says that the area in which the lease is situated has been fenced off by Carandotta and not used due to gidyea poison. There is a lot of country of the same nature on Carandotta which is held and not worked year after year.

Mr Hartig told us that he has bought a lot of material for his market gardening venture. Some of it comprises 2-3 standing steel sheds, fencing material, pumps, polythene and galvanised pipe, a cold room, a trailer and a 16 ft D Pattern Windmill (costing $12,000) which he erected on the original site on the river.

Mr Hartig says that he has been approached to purchase the lease for the sum of $65,000. He decided to sell subject to Lands Department approval but this was refused. One of the reasons given was that the lease had to go back to Carandotta. Mr Hartig does not know how a story originated that apparently he agreed to give the lease back to Carandotta if he no longer desired it. He denies ever having made this agreement. Mr Hartig is anxious that the matter should be tidied up so that he could work the lease and know the direction in which he is heading. Failing this he would like to offer the lease for sale.

Now, the subject lease is situated close to the east bank of the Georgina River within Carandotta Holding. Tendered in evidence by the Crown was a map which clearly shows that between the subject lease and the Georgina River is the area which has been formerly cultivated. It is Mr Hartig's belief that the subject land incorporated this old cultivation area but the evidence leads me to find otherwise. In reality the lease is over rocky limestone ridges which would not be suitable for market gardening in any event.

While there is obviously an unresolved dispute between Mr Hartig and the Crown as to the situation of SL 13/48816, the matter of its precise location is really not an issue in the case. But it is clear that, for whatever reason, the special conditions requiring the use of the leased land for a market garden within two years from the commencement of the lease (1 April, 1987) have not been complied with. This, then, is a clear case where the Crown application should succeed.

All of the requirements as contained within Section 297 of the Land Act of 1962 appear to have been fulfilled. Accordingly, SL 13/48816, Cloncurry District, is recommended for forfeiture for the reason that the lessee has not complied with the conditions of the lease.

Member of the Land Court