Re Lewis

[1994] QLC 43

[1994] QLC 43

 

  LAND COURT

BRISBANE

12 August, 1994

Re:     Appeal against categorisation for rental
  purposes - Land Act 1962.
  Valuation Roll No:  15894
  Special Lease 31/43697.

Lessee:  Sheila Lewis

D E C I S I O N

The lessee has appealed against the decision of the Chief Executive, Department of Lands, to include Special Lease 31/43697 within Category 3 (Residential or Rural Residential) for rental purposes on grounds that the lease should be included in a rural only category.
           Criteria governing categorisation of leases are found in the Land Regulations 1988.
           The subject lease was issued for Business (Rural Activities) purposes.  The term of the lease is for 20 years from 1 June, 1981.  The area of the lease is about 82.5 hectares described as Lot 112 on Plan CK 3559, parish Walsh.  The land is zoned Rural "A" and at present is vacant.  The leased land is divided by the Hervey Bay-Burrum Heads Road, comprising an area in the south which is suitable for rural residential purposes (see application for conversion purposes - SL31/43697 dealt with at these sittings) and an area in the north which is principally low lying salt pan and mud flats.  Some pine trees have been planted on the land in the past but have not been maintained.  The land in the opinion of the lessee would not be viable for any form of primary production.
           As I peruse the categories relevant in the exercise, I find that Category 1 leases cover those leases which may have or have use for grazing or broadacre agriculture.  Clearly the subject lease could not satisfy this criteria.  A Category 2 lease is a lease that is not a Category 1 lease or a Category 3 lease "but may be used, and is used for intensive farming or primary production".

A Category 3 lease may be -

"12A.(1)  A lease that may be used, and is used, solely for residential purposes is a category 3 lease.

(2)A lease that would otherwise be a category 1 lease or a category 2 lease is a category 3 lease if -

(a)it is located close to a city, township or closer settled area; and

(b)      a dwelling house is, or under the lease, could be, erected on it;   and

(c)its market value would be based on its value as land able to be used for residential purposes.

(3)  A special lease for grazing purposes is a category 3 lease if -

(a)a dwelling house is, or under the lease could be, erected on the land; and

(b)the lease is not otherwise a category 1 lease.  "

In this case there exists an area of land which was leased for Business (Rural Activities) purposes.  The land is zoned Rural "A".  According to Mr Gaedtke, registered valuer in the Department of Lands there are no restrictions under the lease preventing the construction of a dwelling on the land.  Secondly, he says that under the Rural "A" zoning, a home could be constructed on the land as of right.  It is agreed (refer conversion application) that the land has rural residential subdivision and use in the neighbourhood, the land is close to Toogoom and it is agreed that the highest and best use of the area is for rural residential use.  In these circumstances, Mr Gaedtke submits and I agree that the lease amply satisfies the requirements of paragraph (2) of 12A.  The lease accordingly could not satisfy the criteria covering Category 2 leases which may be seen apart from any question of the exclusion of Category 3 leases refers to land which may be used and is used for intensive farming or primary production purposes.
           Accordingly, the appeal is dismissed and the decision of the Chief Executive is affirmed.

President of the Land Court