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Robinson v Minister for Lands

Robinson v Minister for Lands

Case [1995] QLC 91 31 August 1995

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[1995] QLC 91

LAND COURT

BRISBANE
31 August 1995
Re:     Determination of Rent - Third Rental Period
  Special Lease No 35/36708.
  Lessee: Colleen Mary Robinson.

(Hearing at Rockhampton)

D E C I S I O N

For the third period of the lease of Special Lease No 35/36708, Rockhampton District, which commenced on 3 July 1992, the Crown determined the rent at $270 per annum. The rent for the second period of the lease was $50 per annum. The lessee has requested that this matter be referred to the Land Court for hearing and determination and has advised that her estimate of the rent which should be charged is $60 per annum.
           Special Lease No 35/36708, Rockhampton District, is in respect of the land described as Lots 175 and 176 on Plan DS252, Parish of San Jose, containing an area of 6.574 hectares. This Special Lease was granted for a term of 30 years from 3 July 1972, for residential or business purposes. The land is located approximately 400 metres north-west of the township of Marmor which is approximately 40 kms south-east of Rockhampton. All weather access is available to within 160 metres of the subject land, then by unformed surveyed road.
           Mr HJ Ambrose appeared and gave evidence on behalf of the lessee, while Mr GG Kelsey, Senior Valuer employed by the Department of Lands, appeared and gave evidence on behalf of the Crown.
           There was little disagreement between the parties as to the description of the land which consists of sloping softwood scrub country, rising to a steeply sloping, stony, softwood ridge in the centre. There is no natural water and it is watered by two small earth dams which, Mr Ambrose said, last for only one or two months. The scrub on the property has been pulled and grassed and it is used for the purpose of grazing in conjunction with adjoining lands.

Mr Ambrose who knows the land well said that the lessee's concern was that the rental had been assessed on the basis of the value of the land as a rural residential site. He said that it should not be so valued for a number of reasons. First, it would be expensive to establish a building site on the land. Because of the topography, a paved or sealed road would have to be constructed at a cost in excess of $4,000. The only possible building site would have to be levelled and landscaped at a cost in excess of $2,000. There is no permanent water supply. Two tanks for water storage would cost in excess of $3,600. Therefore total costs to establish a house site would be in excess of $12,600.
Second, while Mr Ambrose admitted that it is possible to establish a house site, the major factor preventing residential use is that the land adjoins an operating quarry. The quarry is used for the mining of limestone and a crusher and kiln are situated on the adjoining land. The prevailing winds blow dust…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Robinson v Minister for Lands

Details

AGLC: Robinson v Minister for Lands [1995] QLC 91
Case: [1995] QLC 91
Decision Date: 31 August 1995

CaseChat Overview and Summary

Colleen Mary Robinson, the lessee, contested the Crown's determination of the annual rent for the third period of the lease of Special Lease No 35/36708, which had been set at $270 per annum. The lease pertains to land in the Rockhampton District, described as Lots 175 and 176 on Plan DS252, Parish of San Jose, covering an area of 6.574 hectares. The lease, granted for a term of 30 years from 3 July 1972, was intended for residential or business purposes. The land, located approximately 400 metres north-west of the town of Marmor, consists of sloping softwood scrub country and is used for grazing in conjunction with adjoining lands. The lessee contested the Crown's determination of the rent for the third rental period, asserting that the appropriate annual rent should be $60.

The court was required to decide on the appropriate annual rent for the lease during the third rental period, considering the highest and best use of the land. The legal issue was whether the land's highest and best use was for grazing or if it retained some residential potential, as this would affect the calculation of the rent. The court needed to determine whether the previous assessment had correctly excluded any residential value from the valuation of the land. The court also needed to consider the appropriate method for determining the fair rent based on the land's highest and best use, given the absence of evidence of market rents in the area.

The court determined that the land was unsuitable for residential use due to the proximity to an operating quarry, the associated dust and fumes, and the risk of ground vibrations from blasting. The court concluded that the highest and best use of the land was as a small parcel of good grazing land. The court adopted the method of calculating the annual rent as 3% of the unimproved value of the land for grazing purposes. However, the court was not fully convinced that the valuation of $9,000 entirely excluded the potential for rural residential use. To address this, the court reduced the valuation to $7,500, which, when applied at 3%, resulted in an annual rent of $225. This amount was considered appropriate given the circumstances and the land's highest and best use.

The court determined the annual rent for the third rental period of Special Lease No 35/36708, Rockhampton District, to be Two hundred and twenty-five dollars ($225) per annum. This decision took into account the land's suitability for grazing, the absence of residential potential, and the appropriate method for determining the fair rent based on the land's highest and best use.

Orders