Sturgess v Valuer-General
[2013] QLC 6
•22 February, 2013
LAND COURT OF QUEENSLAND
CITATION: Sturgess v Valuer-General [2013] QLC 6 ** PARTIES: John M and Christine M Sturgess
(appellants)v. Valuer-General
(respondent)FILE NOS: VLA608-10 and LVA777-11 DIVISION: General Division PROCEEDINGS: Appeals against annual valuation DELIVERED ON: 22 February, 2013 DELIVERED AT: Brisbane HEARD AT: Warwick PRESIDENT: CAC MacDonald ORDER: 1. Appeal VLA608-10 is allowed.
2. The unimproved value of Lot 2 on Registered Plan 88109 and Lot 5 on Registered Plan 900447 in the County of Merivale, Parish of Warwick, as at 1 October 2009, is determined at Two Hundred and Twenty Thousand Dollars ($220,000).
3. Appeal LVA777-11 is allowed.
4. The site value of Lot 2 on Registered Plan 88109 and Lot 5 on Registered Plan 900447 in the County of Merivale, Parish of Warwick, as at 1 October 2010, is determined at Two Hundred and Fifteen Thousand Dollars ($215,000).
CATCHWORDS: Valuation - unimproved value - Valuation of Land Act 1944 - s.17 - farming - the business or industry of grazing - substantial commercial purpose or character - average gross annual return - use in conjunction with other land - engaged in for the purpose of profit on a continuous or repetitive basis.
Valuation - site value - Land Valuation Act 2010 - s.48 - farming - the business or industry of grazing - business carried out for profit on a continuous or repetitive basis - substantial commercial purpose or character - average gross annual return - use in conjunction with other land.
APPEARANCES: Mr K Flehr, Solicitor, for the appellants.
Mr P Prasad, Senior Lawyer, Department of Natural Resources and Mines, for the respondent.
This decision deals with two appeals by John M and Christine M Sturgess (the appellants) against two annual valuations of their property situated at 187 Dragon Street, Warwick.
Appeal VLA608-10 concerns the valuation of the property as at 1 October 2009, issued under the provisions of the Valuation of Land Act 1944 (VLA). The Valuer-General (the respondent) determined the unimproved value of the land as at that date at $1,150,000.00.
Appeal LVA777-11 is concerned with the valuation issued by the respondent as at 1 October 2010 under the provisions of the Land Valuation Act 2010 (LVA). The respondent determined the site value of the land as at that date at $1,150,000.
The subject land is freehold land located in the City of Warwick and is described as Lot 2 on Registered Plan 88109 and Lot 5 on Registered Plan 900447 in the County of Merivale, Parish of Warwick. The land has a total area of 9.607 ha. Lot 2 has an area of 6.502 ha and Lot 5 an area of 3.105 ha. The respondent's evidence was that the two allotments were assessed on an individual basis less consideration for multiple allotments. However the details of the calculations were not in evidence and each valuation issued at a single amount.
At the hearing of the appeals, evidence was given on behalf of the appellants by Mr JM Sturgess, one of the appellants, and Mr A Matson, a registered valuer. Evidence was given for the respondent by Mr GL Morris, a registered valuer employed by the Department of Natural Resources and Mines. Mr Morris had made the valuations under appeal.
There were two major issues in the appeals -
1. Whether the appellants were entitled to the benefit of a concessional valuation (a farming concession) under the relevant provisions of the legislation (s.17 VLA and s.48 LVA).
2.If the appellants were not entitled to a concessional valuation, the unimproved value or the site value of the land as a vacant en globo property as at the relevant dates.
The parties are agreed that if a farming concession is available, the unimproved value of the subject land as at 1 October 2009 is $220,000 and the site value as at 1 October 2010 is $215,000.
If a farming concession is not available, the appellants contend for a value of $600,000 for each appeal and the respondent relied on the valuations as issued.
Statutory provisions
For each appeal, Mr Morris valued the subject property by direct comparison with relevant sales, relying on the same sales for both appeals. The valuations were made on the basis that the highest and best use of the subject land at the relevant dates was for englobo residential use. Although the appellants had applied for a farming concession it had not been granted, Mr Morris said, because the requirements of s.17 VLA and s.48 LVA had not been met.
Section 17 VLA relevantly provides that -
"17.(1) In making a valuation of the unimproved value of land exclusively used for purposes of a single dwelling house or for purposes of farming, any enhancement in value because the land has been subdivided by survey or has a potential use for industrial, subdivisional or any other purposes shall be disregarded irrespective of whether or not, in case of potential use as aforesaid, that potential use is lawful when the valuation is made.
(2) In subsection (1) -
'farm improvements' includes appropriate sheds, other structures, facilities, farm plant and land development for the particular farming business but does not include a dwelling or car accommodation.
'farming' means –
(a)the business or industry of grazing, dairying, pig farming, poultry farming, viticulture, orcharding, apiculture, horticulture, aquaculture, vegetable growing, the growing of crops of any kind, forestry; or
(b)any other business or industry involving the cultivation of soils, the gathering in of crops or the rearing of livestock;
if the business or industry represents the dominant use of the land, and -
(c) has a substantial commercial purpose or character by -
(i) having an average gross annual return, calculated over a 3 year period, of at least $5000; or
(ii)if the business is the establishment and harvesting of native or non-native forests – having an average anticipated gross annual return, calculated over the period from establishment to harvesting, that is usual for the particular species of tree, of at least $5000; or
(iii)if the business is the maintenance and harvesting of native forests – having an average anticipated gross annual return, calculated over the period from the start of maintenance to harvesting of the particular species of tree – of at least $5000; or
(iv)having -
(A) a minimum value of farm improvements or plantings of forest or orchard trees of $50000; and
(B)the appearance of being maintained for farming or expenditure on crops, forest trees, maintenance of farm improvements, livestock or orchard trees; and
(d) is engaged in for the purpose of profit on a continuous or repetitive basis.
…"
Section 45(1) LVA provides that subdivision 2 of division 5 of Part 2 of Chapter 2 of the Act applies for deciding the value of land used, inter alia, only for farming. Section 46 provides -
"46 Particular enhancements must be disregarded
(1)In deciding the value, any enhancement in its value because of any of the following for the land must be disregarded -
(a) a subdivision by survey;
(b) a potential use for industrial, subdivisional or any other purposes.
(2)Subsection (1)(b) applies whether or not the potential use is lawful on the valuation day."
Section 48 provides -
"48 What is farming
(1) Farming is the use of land for a farming business if -
(a) the use is the land’s dominant use; and
(b) the conditions under subsections (2) and (3) are complied with.
(2)The business must be carried out for profit on a continuous or repetitive basis.
(3)The business must have a substantial commercial purpose or character shown by at least one of the following -
(a) having an average gross annual return, worked out over a 3-year period, of at least $5000;
(b) if the business is establishing and harvesting native or non-native forests—having an average anticipated gross annual return, worked out over the period from establishment to harvesting that is usual for the particular species of tree, of at least $5000;
(c) if the business is maintaining and harvesting native forests—having an average anticipated gross annual return, worked out over the period from the start of maintenance to harvesting of the particular species of tree, of at least $5000;
(d) having both of the following -
(i) a minimum value of farm improvements or planting of forest or orchard trees of $50000;
(ii) the appearance of being kept for farming or expenditure on crops, forest trees, maintenance of farm improvements, livestock or orchard trees.
(4) In this section -
farm improvements includes appropriate sheds, other structures, facilities, farm plant and land development for the particular farming business but does not include a dwelling or car accommodation.
farming business means -
(a) the business or industry of grazing, dairying, pig farming, poultry farming, viticulture, orcharding, apiculture, horticulture, aquaculture, vegetable growing, the growing of crops of any kind or forestry; or
(b) another business or industry involving the cultivation of soils, the harvesting of crops or the rearing of livestock."
Although there are differences in the wording of s.17 VLA and s.48 LVA, the appeals were conducted on the basis that no significance attached to the differences, for the purposes of these appeals, and that the criteria to be applied for the purposes of ascertaining whether the concession was available were the same in each case. I have adopted that approach for the purpose of this decision.
The subject property
Mr Matson described the subject property as gently sloping, predominantly cleared sandy forest country with native and other grasses. Electricity, sewerage and telephone are available to the property but not connected. There was some dispute as to whether water is connected but, in any event, it is agreed it is available. The property was designated Residential at both relevant dates, under the provisions of the Southern Downs Regional Council (Warwick Precinct) Planning Scheme.
The property is improved with boundary fencing in varying states of repair. There is a disused steel bore on the property and an old dam which, Mr Morris said, contained no water.
The subject land is located about two kms south of the Warwick Post Office. The land immediately to the north of the subject is rural residential, and the land immediately north of that is used for residential purposes. Part of the land to the west of the subject land is an englobo site that is valued as residential land and part is within the flood country and is designated rural. To the immediate south of the subject is a newly established residential area and a large parcel of land developed with 86 retirement village units. To the east is the Warwick TAFE College and to the north-east are two large rural residential parcels.
Whether farming concession available
In order to qualify for the concessionary valuation available under s.17(1) VLA, the appellants must show that the subject land is exclusively used for purposes of farming (s.17(1)). To come within the definition of farming, all of the following[1] must be established -
[1]Chief Executive, Department of Lands v Whackett (1994-1995) 15 QLCR 311; Mreef Project Company No 15 Pty Ltd v Department of Natural Resources and Water [2006] QLC 13; Wild v Department of Natural Resources and Mines [2004] QLC 104.
· that the appellants are engaged in the business or industry of grazing on the subject land (s.17(2)(a)); and
· the business or industry represents the dominant use of the land (definition of "farming", first paragraph); and
· the business or industry has a substantial commercial purpose or character by having an average gross annual return, calculated over a 3 year period, of at least $5,000 (s.17(2)(c)); and
· the business or industry is engaged in for the purpose of profit on a continuous or repetitive basis (s.17(2)(d)).
The relevant criteria in s.48 LVA are to the same effect.
Evidence about farming concession
Mr Morris
Mr Morris said that the evidence provided by the appellants and the investigations undertaken by the Valuer-General had revealed that the land was primarily vacant in the period 2007-2010 and too poorly maintained to conduct any cattle grazing on the subject.
Mr Morris approached the question of whether s.17 applied in two ways - (1) by considering whether the s.17 criteria were met when the subject property was considered in its own right and (2) whether the criteria were fulfilled when the activities on the subject were considered in conjunction with the activities on the appellants' other properties.
In Mr Morris' opinion, when considered in its own right the subject property did not meet the criteria in s.17 VLA. In particular, the grazing carried out on the land did not have a substantial commercial purpose or character as it did not produce an average gross annual return, calculated over a 3 year period, of at least $5,000. Nor did the farm improvements reach the value of $50,000 - Mr Morris valued the improvements at $15,000. In addition, the property did not have the appearance of being maintained for farming or livestock, Mr Morris said. The fence was not stock proof, and there was insufficient water for the cattle. Although Mr Sturgess had said that there was a trough on the western side of the property which he filled from a neighbour's property, Mr Morris had not seen the trough when he inspected the property in 2011.
Further, the grazing was not engaged in for the purpose of profit on a continuous or repetitive basis, Mr Morris said. The presence of cattle on the property was very ad hoc. He had driven past the subject regularly since 2006 and had only seen cattle there once, in 2010. He had seen a tractor continually slashing the land, which would not be necessary, if the property were properly grazed. His enquiries at the Council revealed that notices to clear vegetation had been issued in 2001, 2002, 2004 and 2011. A prickly pear eradication notice and a pest eradication notice were issued in 2010. Mr Morris noted that if the land were used for cattle grazing, the land would have a carrying capacity of 1:4 ha Adult Equivalent beasts or 2.4 total head.
With respect to the appellants' combined operation, Mr Morris said he had no comparisons in the local government area of operations similar to the appellants' combined operation.
Mr Sturgess had annexed a number of documents to his written statement to verify his evidence as to the use of the subject in conjunction with the other properties, including -
· a Property Identifying Code (PIC) application which listed a number of properties, including the subject;
· livestock trading accounts, for the financial years ending 2007-2011.
Mr Morris said that the PIC application was completed by the owner and there was no regulatory control as to what properties are included in the list. Further, the document does not establish how one property on the list is used in conjunction with the others nor show any movement of cattle between the various properties. Mr Morris also said that the livestock trading accounts only showed Mr Sturgess' business, they did not show how the business related to the subject parcel.
Mr Sturgess
Mr Sturgess' evidence was that he and his wife had purchased some blocks of land at Emu Vale in 1989, the subject blocks at Warwick in 1996 and a block of land at Marburg in 2004. Mr Sturgess said that the appellants used those blocks in conjunction to run a grazing business. It was extremely useful to have land in different climatic areas as this enabled the appellants to rotate cattle from block to block depending on seasonal conditions and rainfall in each of the areas.
Mr Sturgess annexed a copy of the appellants' registration under the Agricultural Property System showing all of the parcels registered together as one enterprise. He also annexed a letter from the appellants' accountant dated 22 December 2010 which confirmed that the appellants operate a primary production business of cattle breeding and that the subject land was included as part of the operation of that business. Mr Sturgess also annexed a copy of the livestock trading account records submitted as part of the appellants' tax returns for each year from 2006 to 2011. These were the last six years' figures available, although the cattle grazing business has been conducted since 1989. Mr Sturgess said that these accounts demonstrated an average gross annual return over those six years of $6,973 per annum and over the last three years an average of $9,029 per annum.
Mr Sturgess said the appellants had been obliged to spell the Warwick property in 2008 and 2009 because of a major drought. There have also been other reasons, such as a prickly pear eradication program and, in 2012, a rabbit board fumigation program, which had affected their use of the Warwick property. In Mr Sturgess' opinion, it was entirely consistent with good animal husbandry that numbers and trading results fluctuate with the seasons and also with specific events in relation to specific sections of the overall property.
In his application for a farming concession, Mr Sturgess included a table setting out information as to the use of the subject property since its purchase in 1996. Relevantly, the table shows that during 2007, the appellants ran cattle on the property and a way bill number is quoted, but not produced. In 2008 and 2009, the property was spelled because of drought. In 2010, eight cattle were agisted there for 15 weeks, which is verified by the owner of the cattle. The property was also spelled for part of the year for noxious weed control.
Mr Sturgess denied that the subject property was not of good quality for grazing purposes. He said that there is an area of better scrub soil in most of Lot 2 which can be seen from the existence of quinine bush and Currajong trees. Mr Sturgess said that it is the appellants' grazing practice to allow Lot 2 to build up a body of grass and then to graze it fairly intensely, in rotation with their other blocks. This practice enables land on each block to recover fully and avoids degradation.
Mr Sturgess conceded that some of the western and northern fences on the subject property were not of good quality but, he said, they are supplemented by electric fencing [which has been put up by the neighbour] which is effective to keep the cattle within the property. The cattle loading ramp is old but fully serviceable and adequate for the purpose, Mr Sturgess said. The cattle yards are demountable and more than adequate to undertake cattle treatment procedures on the block and to load the cattle on and off the property.
Mr Sturgess said that the subject property is used for no other purpose than grazing cattle and it has been used for that purpose on a continuous and repetitive basis in conjunction with the appellants' other lots ever since it was purchased. The subject property is an integral part of the grazing business as a whole.
Mr Sturgess said that he and his wife had experience in running a farming and grazing business since at least 1978. He is a senior research scientist in all aspects of field cropping and agriculture and he has qualifications in rural systems management, extension and applied science. He now works primarily in plant science but he was directly involved in grazing between 1976 and 1982. He said that with his knowledge and experience of soil types and herbage he had purchased the various parcels of land because of their surprisingly high carrying capacity and their utility in rotating cattle to cover varying conditions.
Conclusions about farming concession
The meaning of the various criteria in s.17 VLA has been considered by the Land Appeal Court and Land Court on a number of occasions. Although there have been amendments to s.17, and now the enactment of s.48 LVA, I consider that the aspects of the authorities discussed below remain relevant to the sections as they applied at the date of each of the valuations under appeal.
Section 17(1) requires that the subject land must be exclusively used for purposes of farming. Section 48(1)(a) LVA provides that "farming" is the use of land for a farming business if the use is the land's dominant use. The respondent says the subject is not so used, but is vacant. Nor did the land have the appearance of being maintained for livestock grazing.
In Thomason v Chief Executive, Department of Lands[2], the Land Appeal Court said that -
"The land must be "used", that is, it must be applied to, employed for some purpose, put into service, turned to account. … For land to be "used" it must be actually used, not be contemplated or intended to be used nor be suitable for use. … That does not mean that there must be activity on all the land. An owner can use land by keeping land in its unimproved state where retaining it in that state is relevant to a particular purpose. …" (Citations omitted).
[2] (1994-95) 15 QLCR 286 at 293.
Having heard Mr Sturgess' oral evidence and considered his written statement and the other information supplied, I have come to the conclusion that Mr Sturgess gave evidence honestly. Mr Sturgess is experienced in the business of cattle grazing and I have accepted his evidence that cattle are grazed on the property for limited periods of time and that there was a period of up to two years when no cattle were there, because of drought conditions. Such use is consistent with the role of the subject property as part of the appellants' business holdings.
Although Mr Morris' evidence was that he had only seen cattle on the property once in the past six years, the material supplied by Mr Sturgess has persuaded me otherwise. Similarly, although there was little independent verification of the movement of cattle on and off the subject property, I find that the letter from the appellants' accountants, the appellants' business trading accounts and the PIC details all consistently support Mr Sturgess' evidence. When all this evidence is considered as a whole, it leads to the conclusion that the subject property is used in conjunction with the appellants' other holdings for the purpose of cattle grazing.
I have also come to the conclusion that although cattle are only grazed on the subject for limited periods of time, that use is sufficient to qualify as a "use" in light of the Land Appeal Court's discussion of the meaning of the word "used" in Thomason. Although the use is intermittent, the carrying capacity of the property is limited and Mr Sturgess' explanation that cattle are only put on the property while there is sufficient feed there, appears to me to be quite reasonable.
The next question to be addressed is whether the appellants' use of the property constitutes "farming" as defined in s.17(2) VLA and s.48 LVA.
To qualify as farming, the appellants' activities must meet the criteria set out at [16] above. In the first place, those activities must amount to the business or industry of grazing.
The Court in Thomason discussed at some length the meaning of the phrase "business or industry" used in s.17, and the relevant authorities. The Court said [3] that -
[3] At 295.
"The words "business" and "industry" have a range of meanings. The Australian Concise Oxford Dictionary includes among the definitions of "business", "habitual occupation, profession, trade" and "buying and selling trade". The Macquarie Dictionary includes:
'n. 1. one's occupation, profession or trade. 2. Econ. The purchase and sale of goods in an attempt to make a profit. 3. … an established or going enterprise or concern: to be in business. 4. volume of trade, patronage. … 6. that with which one is principally and seriously concerned'."
The Court concluded[4] that -
"A broad reading of "business" is sensible and appropriate in the context of the definition of "farming" because paragraphs (c) and (d) of the definition provide the qualifications that the business must have a significant and substantial commercial purpose or character and that the business must be engaged in for the purpose of profit on a continuous or repetitive basis. The net result is that, although a wide meaning is to be given to the word "business" in paragraph (a), the type of business which comes within the definition of "farming" is circumscribed by other parts of the definition. Read together, the indices of "farming" for the purposes of section 17(1) of the Act will have the effect of excluding such things as activities which are really not in the nature of commercial enterprises.
A similar conclusion is reached in interpreting the word "industry" in this context. Dictionary definitions include such meanings as "habitual employment in useful work" (Australian Concise Oxford Dictionary) and "5. systematic work or labour. 6. assiduous activity at any work or task" (Macquarie Dictionary). Such meanings are appropriate in this definition of "farming"."
[4] At 295, 296.
In this case, the cattle are grazed on the subject land for the purpose of sale and agisted in return for payment of an agistment fee. My conclusion is that the land is used for the business or industry of grazing.
The second requirement in the definition of farming is that the business or industry must represent the dominant use of the land.
The subject land is used for no purpose other than farming.
The third requirement is that the business or industry must have a substantial commercial purpose or character shown, in this case, by having an average gross annual return, calculated over a 3 year period, of at least $5,000.
The appellants do not assert that, if the subject property is considered in isolation, it would qualify for the farming concession. The appellants' contention is that the subject land forms an integral part of a grazing business carried on over several parcels of land and that the average gross annual return of the whole business, calculated over a 3 year period, exceeds $5,000.
It is necessary to determine therefore whether, in considering s.17(2)(c)(i), it is legitimate to take into account the gross returns from the business as a whole.
In Thomason's case, most of the appellant's land was used for growing pastures and grazing dairy cattle under an agistment agreement with a third party. The appellant was paid an agistment fee and the milk produced by the cattle was sold as part of the third party's dairy enterprise. The Land Appeal Court said[5] -
"The issue is whether the subject land used in conjunction with other land owned by another person as part of a business or industry with a significant and substantial commercial character, can be valued in accordance with section 17(1) of the Act. In our view, it can.
Section 17(1) applies to "land" exclusively used for specified purposes and it is the potential of "the land" which shall be disregarded. The relevant business or industry must be the dominant use of the land. It is implicit that the commercial purpose should be intended to be met, or the commercial character of the enterprise should be evident, from the use of the subject land, either on its own or in conjunction with other land."
[5]At 307. See also Higbie v Chief Executive, Department of Lands (1994-95) 15 QLCR 277 at 280; Allan v Chief Executive, Department of Natural Resources (1998) 19 QLCR 182 at 185.
It is noted that s.17(2) was amended in 2000 to provide, in s.17(2)(c), specific criteria in accordance with which a "substantial commercial purpose or character" was to be judged.[6] Those provisions were not in place when Thomason was decided. However I do not consider that the addition of the specific criteria affects the application of the reasoning in Thomason to the issue here, namely whether the gross return from the whole of the appellants' business may be taken into account in determining whether the criteria in s.17(2)(c)(i) VLA or s.48(3)(a) LVA have been fulfilled.
[6] Valuation of Land Amendment Act 2000 (No 32) s.5(3).
It is also to be noted that in this case, unlike Thomason, the business in issue is conducted by the appellants, not a third party. That can make no difference to the reasoning in Thomason. The effect of the decision in that case is that, if the appellants establish that the subject land is used in conjunction with other lands as part of a business or industry with a significant or substantial commercial character, as shown by an average gross annual return of $5,000, calculated over a 3 year period, this criterion will be fulfilled.
I have already found that the subject land is used for the purpose of grazing cattle. I have also found that the subject land is used in conjunction with the appellants' other parcels of land as part of an integrated grazing enterprise. Consistently with the decision in Thomason, I consider that it is legitimate to take into account the gross income from the whole enterprise, not just that part of the income attributable to the subject land. The appellants' unchallenged evidence was that the average gross annual returns from the whole enterprise were $6,973 per annum for the six years, from 2006 to 2011, and $9,029 per annum for the last 3 years.
Particularly relevant are the returns pertaining to the years 2007 - 2009 and 2008 - 2010 because s.17(2)(c)(i) provides that "a substantial commercial purpose or character" is shown by having an average gross annual return, calculated over a 3 year period, of at least $5,000. For the purposes of the 2009 valuation the relevant period is 2007, 2008 and 2009. For the 2010 appeal, the period is 2008, 2009 and 2010.
I have formed the view that the words "gross annual return" in s.17(2)(c)(i) VLA refer to the annual gross income from the business, not the annual gross profit which appears to be the appellants' interpretation of the phrase. Gross income is defined as follows in Words and Phrases Judicially Defined[7]
"The 'income' of a business is, in its ordinary and proper meaning, the gain resulting from the business; the income of an estate is the annual return from the estate. The term 'gross income' is the antithesis of 'net income'. It means in ordinary language in reference to a business, the gross result of the terminal trading as distinguished the net result …"[8]
[7] Volume II, Butterworths, 1943, p 432.
[8] Citing Yates v Yates (1913) 33 NZLR 281 at 284-286.
Similarly, in a partnership context,
"The expression 'gross return' is not defined in the partnership legislation but carries its ordinary meaning as referring to the receipts of a business concern. Gross return is distinguished from 'profit or gain' on the basis that the latter can only be ascertained by deducting from the receipts of a business the expenditure or obligations to which they have given rise."[9]
[9]Halsbury's Laws of Australia Vol 19, [305-55], citing Gresham Life Assurance Society v Styles [1892] AC 309 at 323.
The livestock trading accounts appended to Mr Sturgess' statement show the gross return for the relevant years to be -
2007$13,776
2008$ 3,032
2009$ 6,081
Average gross return per annum - $7,630
2008$ 3,032
2009$ 6,081
2010$21,067
Average gross return per annum - $10,060
I have accepted the appellants' evidence as to the returns from the business. Accordingly I have concluded that the appellant has established that the business has a substantial commercial purpose or character by having an average gross annual return calculated over a 3 year period, of at least $5,000.
The final condition to be fulfilled is that the business must be engaged in for the purpose of profit on a continuous or repetitive basis. The issue to be determined is whether the grazing business carried on by the appellants, that is, in this case, the whole grazing enterprise, is engaged in for the purpose of profit on a continuous or repetitive basis. The respondent's evidence on this issue related to the use of the subject property itself. Once Mr Sturgess' evidence as to the use of the subject property and the connection between that use and the use of the appellants' other properties is accepted, there was no evidence to challenge the appellants' evidence that the business as a whole is carried on for the purpose of profit on a continuous or repetitive basis. Accordingly I have accepted that evidence.
My final conclusion is that the appellants have proved, to my satisfaction, that the criteria in s.17 VLA and s.48 LVA have been fulfilled and, therefore, the subject land is to be valued on the basis that its potential for englobo residential use is to be disregarded.
Accordingly, the unimproved value of the subject land as at 1 October 2009 is determined at $220,000 and the site value of the subject land as at 1 October 2010 is determined at $215,000.
In view of my decision that a farming concession is available for each of the valuations under appeal, it is unnecessary for me to determine the values applicable if no such concessions were available.
ORDERS
1.Appeal VLA608-10 is allowed.
2.The unimproved value of Lot 2 on Registered Plan 88109 and Lot 5 on Registered Plan 900447 in the County of Merivale, Parish of Warwick, as at 1 October 2009, is determined at Two Hundred and Twenty Thousand Dollars ($220,000).
3.Appeal LVA777-11 is allowed.
4.The site value of Lot 2 on Registered Plan 88109 and Lot 5 on Registered Plan 900447 in the County of Merivale, Parish of Warwick, as at 1 October 2010, is determined at Two Hundred and Fifteen Thousand Dollars ($215,000).
CAC MacDonald
PRESIDENT OF THE LAND COURT
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