Slatter v Minister for Land Management; Shepherd v Minister for Land Management
[1991] QLC 22
•9 July 1991
|
BRISBANE.
9th July, 1991.
Re: Appeals under the Mining Titles Freeholding
Act 1980-1990. Section 11.
Ref: M91-1/2.
Donald Spencer Slatter and Lyndel Joy Slatter
v.
Minister for Land Management
and
Graham and Heather Shepherd
v.
Minister for Land Management
D E C I S I O N
(Hearing at Gympie)
There are before the Court appeals (2) by the lessees of two adjoining Mining Homestead Perpetual Leases of land situated in Gympie, the relevant details of which are as follows:
MHPL 6068 - 9.345 ha - Donald S. and Lyndel Joy Slatter (M91-1); and
MHPL 6069 - 5.426 ha - Graham H. and Heather F. Shepherd (M91-2).
The appeals are against determinations of the Valuer-General of the unimproved values of the land which values have been applied for the purpose of the freeholding of the leases. In the certificates of valuation issued for the purpose MHPL 6068 is valued at $28,000 and MHPL 6069 at $24,000.
Mr D.S. Slatter appeared on behalf of himself and his wife. Mr and Mrs Shepherd did not appear but forwarded to the Court a statement of evidence which in substance is a duplicate of the statement of evidence tendered by Mr Slatter. On the matters being called for hearing, Mr R.M. Vize, Counsel for the Valuer-General, objected to the hearing of the matters on grounds that the Court had no jurisdiction to hear the appeals. His objection is that the valuations are not appealable in that they are covered by the provisions of S.8A(b) of the Mining Titles Freeholding Act 1980-1989 (the Act). This subsection provides that the unimproved value of the land shall be -
"(b)in any other case, the amount of the valuation of the unimproved value of the land made by the Valuer-General under the valuation of Land Act 1944 - 1980 which valuation last took effect prior to 31 December 1980 or, where no such valuation had been made, the amount of the valuation of the unimproved value of the land made under that Act that first takes or took effect (whether before or after the date of the application made under this Part) after 31 December 1980, ...."
Subsection (a) of the section deals with the case of land used exclusively for purposes of the business of primary production. In that instance a valuation for freeholding purposes is a valuation made by the Valuer-General on the assumption that S.11(1)(vii) of the Valuation of Land Act (exclusive use for primary production purposes) had not been enacted. Section 11 of the Act provides that an applicant who is dissatisfied with the valuation determined pursuant to S.8A(a) may appeal to the Court. No right of appeal is given in respect of matters falling under paragraph (b) of the section. It appears that the philosophy contained in these provisions is that with the exception of S.8A(a) the valuation for freeholding purposes shall be the valuation made by the Valuer-General under the Valuation of Land Act for rating purposes (which valuation can be challenged under provisions of the Valuation of Land Act). In 1989 S.8B was inserted in the Act. This section provides for the making of a fresh valuation for freeholding purposes in respect of the unimproved value of land which cannot be ascertained under paragraph (a) or (b) of S.8A by reason of the fact that the land the subject of the application has not been separately valued but has been included with other land in the one valuation for rating purposes. In that case the land is valued "as at the date at which that land and the other land included in the one valuation are valued." This section provides that such fresh valuation can be subject to a determination of the Court under S.11. However the section has no relevance in the subject cases as it was inserted in the Act in March 1989 (almost a year subsequent to the application to freehold the subject leases which was made on 12th April, 1988) and possesses no clear statutory intention that it was to have retrospective effect - see Fullagar J. in Fisher v. Hebburn Ltd (1960) 105 CLR 188 at P194. It follows that the answer to the question posed by Mr Vize must be found in the provisions of S.8A(b).
Mr D.R. Gaedtke registered valuer in the employ of the Department of Lands gave evidence in respect of the valuations and in respect of circumstances which led to those valuations. The history of the matter appears on the evidence to be that for the purposes of the general revaluation of the area as at 31st December, 1975, effective as from 30th June, 1978, these parcels were in the one ownership and were valued with five other parcels at $7,250 as land exclusively used for the purpose of the business of primary production. The two subject parcels were in the one ownership when the application to freehold the land was made on 12th April, 1988. Subsequent to that date it would appear that MHPL 6069 was sold to the second appellants and an area adjustment made for the inclusion of part of the land contained in MHPL 6069 in the land of MHPL 6068. The survey was completed on 17th May, 1990. In each case, a certificate of valuation for the purposes of the application to freehold was issued on 16th January, 1991, in the sums of $28,000 and $24,000 respectively which as stated in the certificate was "the first effective valuation of the unimproved value of the above described land after 31st December, 1980, and took effect on 17th May, 1990 (Ss. 8(A)(b))". It is clear that the Valuer-General is relying on the area adjustment as grounds for the "fresh" valuations and not the partition of the land by sale or what may have been the case had S.8B been applicable in the circumstances. The appellants submission is that had the application for freeholding been dealt with theoretically on the day following the application, the valuations would have come out at the sums they are contending to and are not in dispute save for the valuation in respect of Shepherds' land - that is $2,000 for MHPL 6068 and $1,117 for MHPL 6069 which Mr Gaedtke says should be valued at $1,750. It appears to me that the latter part of S.8A(b) is operative where for example land is subdivided and sold and the subdivided parcels are valued for the first time under the Valuation of Land Act for rating purposes. Under the section a valuation for freeholding purposes would be that valuation and the applicant would have no right of appeal. In the subject case however the resurvey is put forward as the reason for the fresh valuation. But what concerns me is that if the land had remained in the one ownership and had been included in the one valuation for rating purposes which would appear to be the situation at the date the application for freeholding was made, a fresh valuation would not appear to be necessary under S.13 of the Valuation of Land Act for rating purposes. Consequently the freeholding valuation would follow the provisions of the first part of S.8A(b). This seems to be the argument advanced by Mr Slatter; that is that the freeholding application made by the owner of both lots preceded the survey and accordingly the application should have been dealt with without regard to subsequent events. I note that where the Minister directs a resurvey under S.10 of the Act S.14 provides that the jurisdiction of the Court (where it has jurisdiction) shall not be affected. If that philosophy is applied on the premise that the date of application has relevance the valuation for freeholding purposes would be governed by the first part of S.8A(b). The Court of course would have no jurisdiction in the matter.
On the limited evidence of the history of the matter before the Court, I have little confidence in making a finding. The conclusion I lean to is that the valuations applied for the purpose are void accepting that the resurvey (without partition by sale) is the reason calling for the valuation.
Accordingly I find that I have no jurisdiction to entertain the appeals and I recommend that the matters be considered by the Valuer-General de novo and fresh certificates of valuation issued for the purpose.
D.M. White
Member of the Land Court
0