Tibby v Minister for Natural Resources

[1999] QLC 62

[1999] QLC 62

 

LAND COURT

BRISBANE

3 JUNE 1999

Re:     Application for Forfeiture –

Section 238(1) Land Act 1994 –
  Special Lease:           15/53217 –
  Lessee:  KJ Tibby

(Hearing at Cunnamulla)

D E C I S I O N

Pursuant to s.238(1) of the Land Act 1994 (the Act), the Minister, on 30 December 1998, referred to the Court the matter of deciding whether Special Lease 15/53217 may be forfeited.
           At the time of the reference, the Court was provided with a copy of a notice dated 2 December 1998, addressed to the lessee, advising him of the Minister's intention to refer the matter to the Court and the grounds on which the Minister considered the lease may be forfeited.  As a consequence, there has been compliance with the requirements of sub-ss.(2), (3) and (4) of s.238 of the Act.
           The lease is for a term of 20 years which commenced on 1 July 1994, over land described as Lot 5 CP 841119, Parish of Yowah, County of Wellington.  The land containing an area of 1,475 m² and is  situated in Boobialla Street, Yowah.
           At the hearing, the lessee's father Mr EJ Maguire, who lives in Yowah, appeared on his behalf.  Mr M McManus appeared for the Minister and evidence was called through Mr MP McCosker, a registered valuer employed by the Department of Natural Resources.
           In his tendered report, Mr McCosker provided the history of non-compliance by the lessee with the Development Condition in the lease which is as follows:

"M76The lessee shall within two (2) years from the commencement of the term of the lease and to the satisfaction of the Minister administering the Land Act 1962 effect structural improvements on the leased land in accordance with plans and specifications approved by the Paroo Shire Council of a value of not less than $15,000.00; construction of such improvements shall be commenced within one (1) year from the commencement of the term of the lease and shall thereafter proceed at a rate of progress satisfactory to the Minister administering the Land Act 1962."

When an inspection of the lease had been conducted on 22 January 1997, the inspecting officer noted that a very small cottage had been relocated to the site temporarily supported on drums and not permanently fixed to foundations.  The lease had been enclosed with fencing and some very basic landscaping established.  The lessee was formally advised of the default in the lease condition relative to improvements and an application was made for an extension of the period within which the necessary improvements were to be completed.  The period was extended to 7 July 1998.  An inspection in August 1998 revealed that no further work had been commenced.
           The evidence is that by letter dated 26 October 1998, the lessee requested a further extension of six months to comply with the improvement condition  That request was not granted and the subsequent forfeiture procedure was commenced by the Minister.
           Mr McCosker had inspected the lease shortly before the hearing and reported that the improvement status of the land had not altered since the original inspection in 1997.  The Paroo Shire Council had advised on 29 April 1999, that there was no record of a building application having been made for this land.  In Mr McCosker's opinion the cottage (with floor area of about 19 m²) even if it had been set on permanent foundations, would add value of about $5,000-$6,000.  However it was worth about $2,000 for relocation.  Fencing was assessed as adding value of a further $800.
           Mr Maguire gave evidence under oath.  He said that he had assisted his son, Mr Tibby, in the acquisition of the lease in the first instance.  His son had hoped to live permanently on the lease and had drawn plans for its development, incorporating the permanent fixture of the cottage which had been moved to the site and temporarily placed on the drum supports.  Mr Tibby had been in employment in Western Queensland, until his grandmother had died in New Zealand and he returned there to support his mother and his grandfather who was in poor health.  In 1998 Mr Tibby had visited Yowah with his fiancee when the building proposals were then current.  The marriage planned for July 1998 in New Zealand did not proceed and Mr Tibby had remained in New Zealand but with insufficient funds then available to have the improvement condition met.  The further extension was requested in October 1998 but denied. 
           Mr Maguire had been loath to interfere with his son's proposals but after the forfeiture action commenced he had, through his son, sought to have the lease transferred to him when he said he would have undertaken to comply with the improvement conditions.  He indicated his confidence that it was Mr Tibby's intention to return to Yowah when personal and family commitments permitted and Mr Maguire wished to ensure that he had a home there in which to reside.  However, the application for transfer of the lease to Mr Maguire, which was made on 17 May 1999, had been denied the following day on 18 May.
           It was Mr Maguire's evidence that if the lease could not be transferred to him, he would personally undertake to fulfil the lease conditions within a period of one year because he had the financial capacity to do that and be reimbursed if necessary by Mr Tibby who was currently working from a New Zealand base.
           Mr Maguire held the belief that rather than allow the land to revert to vacant Crown land, when its development potential would be clouded by Native Title implications, it would be reasonable for the Minister to allow him to complete the lease conditions.
           It is clear that Mr Maguire genuinely wishes to assist his son Mr Tibby in fulfilling the original proposal.  That may be a matter which the Minister is prepared to consider, bearing in mind the provisions of s.239 of the Act.  It is understandable at least that no real recent action was taken by the lessee since the October 1998 request for the further extension was refused. 
           However, it is patently clear that the lessee has not complied with the improvement conditions of the lease, despite having been granted in 1997 an extended period within which to meet that obligation. 
           The decision of the Court is that the lease may be forfeited, if the Governor in Council, after consideration of the particular background to this matter, decides to take that action.

RE WENCK
MEMBER OF THE LAND COURT