Stanley v Department of Natural Resources and Water

[2010] QLC 68

LAND COURT OF QUEENSLAND

CITATION:

Stanley & Ors v Department of Natural Resources and Water [2010] QLC 0068

PARTIES:

Sheila Manning and Owsley Stanley & Isabelle and Robert Liddle
(appellants)

v.

Chief Executive, Department of Natural Resources and Water
(respondent)

FILE NO:

AV2008/0847
RV2008/0842

DIVISION:

Land Court

PROCEEDING:

Appeals against annual and rental valuations

DELIVERED ON:

12 April 2010

DELIVERED AT:

Brisbane

HEARD AT:

Atherton

MEMBER:

Mr PA Smith

ORDER:

The appeals are dismissed.

CATCHWORDS:

Valuations – appeal against unimproved value of land

Presumption of Correctness – Onus on appellant to rebut presumption

Permit to Occupy – validity

Conditions of Permit to Occupy – Can improvements be legally constructed on the subject land

APPEARANCES:

Mr Stanley, self representing, for the appellants

Mr G Smith, Principal Lawyer, for the Respondent

Background

1. These are two appeals against determinations of the Chief Executive’s decision on objection against the unimproved value of an area of land in the Walsh River area approximately 13 km south-west of Atherton. The description of the land in question is “Lot No. 1; Plan No: PER5540; Parish: Western; Area 17.9ha.[1] The evidence tendered in Court shows that the land described is subject to Permit to Occupy 9/5540.[2]

   [1]See:

   ·Originating application (Form 19) Notice of Appeal to the Land Court against a determination of the Chief Executive’s decision on objection against the unimproved value of the land.

   ·Exhibit 10, “Internal Current State Tenure Search” Department of Natural Resources and Water. Title reference 17685133. Date created 21/10/95. Date searched 13/03/2009. Tenure reference: PO 9/5540.

   ·Valuation Report by Mr Paton (Page 2, Exhibit 3).

   [2]Ibid.

2. The Permit to Occupy is held by Sheila Manning and Owsley Stanley & Isabelle and Robert Liddle (“the appellants”). The valuations by the respondent, pursuant to the Valuation of Land Act 1944 (“the VLA”) valued the appellants’ property situated at Walsh River Road, adjacent to the southern bank of the Walsh River, about 6 km north-west of the town of Herberton (“the subject land”) in the sum of $108,000 for both annual and rental valuations as at 1 October 2007. The appellants contend for a valuation of $54,000.

3. This case is unusual in that it is essentially not a valuation challenge at all, but in reality a challenge by the appellants to the legality of the tenure they currently hold. The VLA is merely a vehicle which gives them the opportunity to press this point.

The Hearing

1. The appellants self represented via Mr Stanley who also gave evidence at the hearing. Mr Stanley has no legal or valuation qualifications. The respondent was represented by Mr G Smith, a Principal Lawyer employed by the respondent, and relied on evidence of a registered valuer, Mr David Frank Paton. The appellants did not require Mr Paton to give evidence. As such, the valuation evidence in this matter is uncontested.

Relevant legislative provisions

1. Pursuant to s.13 of the VLA, the respondent is required to determine the unimproved value of the land.

2. Section 3(1) of the VLA says as follows:

   “3 (1) For the purposes of this Act –
   ‘unimproved value’ of land means –

   (a)     in relation to unimproved land – the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require; and

   (b)     in relation to improved land – the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require, assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist.”

1. I note that the subject land is improved. Accordingly, put simply, the task is to find the market value of the land on the assumption that none of the improvements are on the subject land. An assessment is then undertaken as to the highest and best use of that land.

2. As the then President Trickett said in Fairfax v Department of Natural Resources and Mines [2005] QLC 0011 at paragraphs 11 and 12:

   “The principles for determination of the 'market value' of land were established by the High Court in Spencer v The Commonwealth (1907) 5 CLR 418. In that case, the High Court found that the value of land is determined by the price that a willing but not over-anxious buyer would pay to a willing but not over-anxious seller, both of whom are aware of all the circumstances which might affect the value of the land, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding facilities, the then present demand for land and the likelihood of a rise or fall in the value of the property. (See Griffith CJ at 432 and Isaacs J at 441).

   It has been well established that the unimproved value of land is ascertained by reference to prices that have been paid for similar parcels of land.  In Waterhouse v The Valuer-General (1927) 8 LGR (NSW) 137 at 139, Pike J said that:

   'Land in my opinion differs in no way from any other commodity.  It certainly is more difficult to ascertain the market value of it but – as with other commodities – the best way to ascertain the market value is by finding what lands comparable to the subject land were bringing in the market on the relevant date – and that is evidenced by sales."”

I respectfully agree with these observations.

Presumption of correctness of valuation

1. I now turn to section 33 of the VLA, which states as follows:

   33      Status of valuation

   Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the chief executive shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered.

2. This section was considered by the High Court in the case of Brisbane City Council v The Valuer-General for the State of Queensland 1977-78 140 CLR 41 where Justice Gibbs (as he then was) made the following observation at page 56:

   “In my opinion once it is shown that in making the valuation the Valuer-General acted upon a wrong principle, or made a serious error of fact, the presumption created by s. 13(7) is rebutted.”

It should be noted that s. 33 of the VLA is in essentially the same terms as what was then s. 13(7) of the Act.

The Permit to Occupy

1. I now turn to consider the Permit to Occupy itself. By way of background, the appellants, it would seem, have complied with the conditions of the Permit to Occupy over and above what was required. In relation to pests, the Land Act 1994 only requires leases, licences and permits to keep noxious plants under control (see s.200), however, Mr Stanley, a well-known conservationist, artist and musician, gave evidence that he has not only kept noxious plants under control such as lantana, but has controlled the toad breeding in the area, removing 3,803 toads between 2004-2007, resulting in increased populations of native wildlife including endangered species such as the platypus and spotted quoll.[3]

   [3]See affidavit of Appellants (exhibit 5).

2. Despite the good intentions of the appellants towards the land in question, the application appears to be a misconceived attempt at judicial review of a decision not to convert the Permit to Occupy to leasehold tenure. The appellants allege that the Department breached a promise that if they fulfilled the Department’s “policy criteria”, those with a dwelling in excess of $4500 could be granted an initial Permit to Occupy and a special lease if the conditions of the Permit to Occupy were fulfilled EMS29.[4] Even supposing the Land Court had jurisdiction to conduct a review of such a decision (and I specifically make no finding in this regard as the issue was not argued before me), any such review would be the subject of a separate application.[5]

   [4]See paragraph 26 of the Applicant’s submissions.

   [5]See ss.327- 431 Land Act and schedule 2 of the Act.

3. The appellants contended that the permittee cannot legally build a residence under the Permit to Occupy and therefore any special condition to allow the building of a residence is invalid. They contend, on that basis, that the valuation of the Chief Executive should be lower because the tenure can no longer be classed as rural residential, and the Department should convert the licence to leasehold as was allegedly promised if they wish to value the land as rural residential.

Conditions on the Permit to Occupy – can the Permittee legally build a residence under the Permit to Occupy 9/5540?

1. The relevant conditions specified in the Permit to Occupy are as follows:

   M76: The permittees shall use the land for rural residential purposes and for no other purpose…

   M76 The permittees shall within one year from the commencement of the term of the lease and to the satisfaction of the Minister, effect structural improvements on the land of a value of not less than $10,000.00 in accordance with plans and specifications approved by the Council of the Shire of Mareeba…

   M181 Failure to comply with the abovementioned conditions shall render this Permit to Occupy liable to cancellation as from a date determined by the Minster and may render the permittees liable to the provisions of Sections 372/3 of the Land Act 1962.”[6]

   [6]     Exhibit 10, “Internal Current State Tenure Search” Department of Natural Resources and Water. Title reference 17685133. Date created 21/10/95. Date searched 13/03/2009. Tenure reference: PO 9/5540, page 2.

Law at the date the Permit to Occupy was granted

1. The conditions in the Permit to Occupy refer to s.372/3 of the Land Act 1962, a provision which provides for penalties for erecting improvements on land where those improvements have not been authorised in writing or under the Act.

2. The Minister may under that division grant a Permit to Occupy crown land “for such purpose and upon such terms and conditions as the Minister deems fit” (s.371A)[7]. S.372 only applies where the person is a trespasser and has no lawful right to occupy. In this case the lawful right to occupy is established under s.371A.

   [7]The Land Act 1962 as at 1988 stated the following:

   s.371A

   “Permissive Occupancy

   The Minister may grant permission to occupy any Crown land or any land comprised in a reserve or road for such purpose and upon such terms and conditions as the Minister deems fit. Any such permission shall be terminable at will by the Minister… ”

3. It is clear in this case that the Minister has granted the Permit to Occupy on the express written condition that structural improvements be effected (condition M76) and that in fact, a breach of that condition may render the permittee liable to cancellation under s.372/3 of the Land Act 1962.

4. Furthermore, condition M181 explicitly states that s.372 will not apply unless the Permit to Occupy is first cancelled. This is consistent with the legislation, as s.372 does not apply where a person has a lawful right to occupy under the Act. In this case there is a lawful Permit to Occupy under s.371A with a wide discretion for conditions to be imposed on that occupancy. It is only where that lawful right is cancelled that s.372 comes into effect and the erecting of improvements under that section becomes an offence. Therefore if the Permit to Occupy is in force, both the legislation and the conditions of the permit allow for the construction of improvements and there is no invalidity.

Current law governing the Permit to Occupy

1. This background into the law governing the original Permit to Occupy, while historically relevant is superseded by the current Land Act 1994 which states:

Division 1A Permits

483 Existing permits continue

An existing permit issued under the repealed Act, part 13,

division 1 is taken to be a permit issued under this Act.

1. This makes no practical difference as the law regarding erecting improvements on land subject to a Permit to Occupy under the current Act is similar to the repealed Act. Under the current law the Chief Executive may issue a Permit to Occupy Unallocated State Land, a reserve or a road for the purpose, and on the terms, the Chief Executive decides are appropriate to the land and the purpose of the permit (s.177). This indicates that the condition in the Permit to Occupy is subject to a wide discretion of the Minister and is likely to be valid.[8]

   [8]     See s.180 for when a permit may be cancelled.

2. Furthermore, it should be noted that the land was described as rural residential in the original Permit to Occupy.

Application of s. 14(1) of the VLA

1. Section 14(1) of the VLA is clearly relevant to the final resolution of this matter. It provides as follows:

   “For the purpose of deciding the unimproved value of land that is not granted in fee simple, the land is taken to be land granted in fee simple”

2. It would appear to be beyond question that Mr Paton has properly valued the subject land, correctly utilising s 14(1) of the VLA.

Conclusion

1. The Appellants’ submissions were based on the alleged invalidity of the Permit to Occupy. As they have been unsuccessful in establishing this, they have not rebutted the statutory presumption contained in s.33 of the VLA. In these circumstances, the Chief Executive’s valuations stand, and the appeals must be dismissed.

Order:

The appeals are dismissed

P A SMITH

MEMBER OF THE LAND COURT