van Amstel v Chief Executive, Department of Lands

[1997] QLC 1

[1997] QLC 1

 

LAND COURT COOLANGATTA

31 JANUARY 1997

In the matters of appeals against valuations ValuationofLandAct1944

Valuation Roll No.:    13717

Local Government:    Gold Coast City Council-Albert (V95-169 and AV95-170)

Rudo and Frouwke A van Amstel v.

Chief Executive, Department of Lands

(Hearing at Coolangatta and Brisbane) D E C I S I O N

Appeal V95-169 relates to a valuation of $2,300,000 placed on land owned by the appellants pursuant to the general valuation provisions of the Valuation of Land Act 1944 (the Act) by the Chief Executive as at a relevant date of 30 June 1993. Appeal AV95-170 is concerned with the same property, but with an annual valuation in the same amount as at a relevant date of 1 January 1995. In each case the appellants objected and, having failed to convince the Chief Executive to reduce the valuations, appealed to this Court contending in each matter for a valuation of $121,995. With the consent of both parties the appeals were heard together.

The bulk of evidence in these matters was heard at Coolangatta. Following the hearing there, I reviewed the evidence, and, finding it to be incomplete in certain regards, asked that the parties provide evidence and submissions in relation to three issues:

·the residential usage of the subject lands;

·where the appellants reside;

·the value of the subject land as a single unit residential parcel.

The grounds of appeal were expressed in the same terms in each matter as follows:

“The Valuation is out of relativity with other properties in the area, including adjoining properties.

The property is being used for primary production.”

These grounds of appeal were supported by Mr Rudo van Amstel who appeared and gave evidence in these matters. Mr Dominic Thomas Treston gave evidence in support of the valuation of the Chief Executive. Mr Treston is a registered valuer employed by the Department of Natural Resources which includes the former Department of Lands. He was not the valuer who originally valued the subject property as at the two relevant dates, however, led evidence in support of the valuations determined by the Chief Executive. Whilst Mr Treston did not seek to vary the original valuations, he expressed the view in respect of the 1995 valuation that the

evidence indicated to him that the value ought to be higher than the $2,300,000 determined by the Chief Executive to the extent of approximately 10%.

The subject land has an area of 81.33 ha and is described as Lot 4 on Registered Plan 172331 in the Parish of Albert. The land is situated at Eggersdorf Road, Ormeau, approximately 36 km north of the Bundall Post Office and 48 km south of Brisbane. Mr Treston said in his written valuations that the land is situated “within the developing Albert corridor”.

The subject land has a narrow frontage of 14.679 metres to Eggersdorf Road, which is a two-lane bitumen sealed carriageway with earth formed shoulders and channelling. Access to the Pacific Highway is approximately 900 metres from the subject property. Both parties are of the view that the narrow frontage to Eggersdorf Road is a detrimental feature of the land in that it constitutes a development constraint on further subdivision of the land.

Electricity and telephone are available and connected to the subject property, whilst town water is available about 600 metres away. Sewerage is not presently available to the land and the absence of this service is a feature considered important by both parties in valuing the subject land for the purposes of residential subdivision.

Mr Treston provided a description of the nature of the subject land with which Mr van Amstel offered no objection:-

“The subject property is described as a ‘ bottle shaped’ parcel of land with a very

narrow neck and frontage to Eggersdorf Road.

The land consists predominantly of easy sloping forest ridges with a general slope downwards from Eggersdorf Road to some flooded narrow flats on the rear or eastern boundary. The higher ridges are timbered with a medium density forest of Ironbark, Spotted gum, Wattle and Oak. The subject property along the eastern boundary has been cleared and improved with pastures.  This lower land is subject to waterlogging problems after prolonged rainfall. The cleared area would comprise of approximately 25% of the property or 20.0 hectares. The property adjoins sugar cane land on the rear boundary.”

The subject land is improved with some clearing as indicated above, fencing, a number of earth dams and two houses. Cattle grazed the property at each relevant date.

The subject land is zoned “Future Urban” under the Albert Shire Town Planning scheme effective at each relevant date. The Albert Shire Council had approved an application for rezoning of the subject land to “Special Residential” zoning on 26 November 1991, subject to some 36 conditions.  An appeal was lodged in the Planning and Environment Court with respect to a number of the conditions, however, the appeal was not proceeded with and in due course the rezoning was gazetted on 9 February 1996. The application for rezoning arose out of a contract entered into by the appellants on 7 March 1991 with the “Mur Group” in the amount of

$5,290,000. The period between March 1991 and February 1996 was, in respect of this contract, an eventful one according to Mr van Amstel’s evidence, however, in the result the contract was terminated on 7 March 1994. That contract had operated in tandem with a contract and an application for rezoning over adjoining land (Lot 2 on RP 125047) referred to as the Sleep land.

The Mur Group’s intention was to use the Sleep land to enlarge the access from Eggersdorf Road to the subject land, sufficient to allow for development.

My recitation of the evidence concerning the Mur Group contract is included first because it provides a useful summary of the position concerning the local authority zoning of the subject land and, second, because Mr van Amstel wished to address during this matter the question of a later valuation by the Chief Executive which he suggests takes into account the fact of the gazettal of the rezoning. I informed Mr van Amstel, and I confirm here, that the later valuation is not before me and I have not directed my mind to the question of what impact the rezoning might have on the value of the subject land, as that rezoning took place at a time quite outside the period of my jurisdiction in these matters. Just as I set aside for my consideration the fact of the rezoning, I also exclude from consideration the actual conditions finally imposed by Council to the rezoning. Having said this, I should make the point that it would be inappropriate to totally put out of my mind all of the evidence concerning the process of rezoning outlined above. I consider, for example, that it would be appropriate for me to have regard to the fact that the local authority evidenced an attitude in favour of rezoning the subject land to a “Special Residential” zone; and also to the fact that such rezoning would be conditional with such conditions being formulated to address certain characteristics of the subject land and its environment, in particular those relating to sewerage, access and the need for a buffer between proposed residential land and the cane lands adjoining the subject land to its east. Such conditions would be evident from the Local Authority approval provided by the local authority to the Mur Group application and also would be easily ascertained, either by discussions with relevant Council officers or with an intelligent observation of the characteristics of the subject land. Additional conditions would be contemplated to deal with usual local authority requirements relating to parkland contributions, headworks charges and so on. I understand the approach that I have outlined to be consistent with the decision of the Full Court in Stubberfield

1. The Valuer-General (1988-89) 12 QLCR 328 and I refer in particular to the following quotation taken from the judgment of Connolly J at p.343:

   “The central question is not whether prospective recognition can be given to the

   new Town Plan. It is whether, at the relevant date, which was 31st March, 1987, the value of the appellants’ land on the open market would have been affected by knowledge of the proposed town planning changes. If a valuer with experience of these matters had given evidence that the hypothetical purchaser would have been prepared to pay less for the appellants’ land as a homesite for a single dwelling once he became aware of the plans of the local authority, that would have been a relevant factor. It would have derived not from the coming into force of the new Town Plan but from public notice given by Redland Shire of its proposals.”

Apart from his complaint about the valuation which is later and apparently higher than the two valuations which are the subject of these appeals, Mr van Amstel raised certain other matters of a nature peripheral to these proceedings, but which he apparently saw as being significant.  The first of these arose out of the fact that the original valuations in these matters

have been carried out by an officer other than Mr Treston and that his written valuations differed from material that Mr van Amstel had been provided with pursuant to an application lodged by him under the provisions of the Freedom of Information Act 1992. Mr van Amstel objected against the Chief Executive relying upon evidence during the hearing of the subject appeals which differed from that revealed to him pursuant to his application, however, I did not allow the objection. Whilst parties to a matter before this Court may decide to utilise the processes available under the Freedom of Information Act as part of the process for preparing for trial, there is nothing in that legislation which precludes the tendering of evidence in place of or supplementary to any documents provided pursuant to that Act. Indeed, the procedures available under that Act exist quite independently of any substantive legal action. As things currently stand, the procedures of this Court, including interlocutory procedures, are governed by the provisions of the Land Act 1962 and by the Rules of Court and in particular I refer to s.41B of that Act as providing an appropriate course to follow where a party wishes to discover the basis of the other side’s valuation. In particular, I refer to ss.(7) and now set out s.41B (1) to (7):

“         41B. Mutual exchange of valuations.   (1) A party in a matter pending

before the Court, at any time after receipt by him of the notice of hearing but not later than 14 days before the date appointed for the hearing, may make application to the Court for an order directing that the parties make mutual exchange of the valuations that the parties intend to put in evidence at the hearing and all data in the possession of the parties in support of those valuations.

(2)        An application pursuant to subsection (1)-

(a)shall be in the prescribed form;

(b)shall be lodged with the Registrar together with a copy of the valuation and all supporting data filed or to be filed in the Court.

(c)shall be served on the other party.

(3)        The party on whom the application is served, within 7 days after the receipt by him thereof, shall furnish to the Registrar his comments thereon and advice as to whether or not he will consent to the making of the order together with a copy of the valuation that he intends to put in evidence at the hearing and all supporting data.

(4)        The Registrar shall submit to the Court the application together with valuations and all supporting data lodged and such comments and advice as the other party furnishes in accordance with subsection (3).

Where the other party does not furnish within the time specified, the comments, advice, valuations and supporting data that he is required to furnish, the Registrar shall submit to the Court with the application a statement to that effect.

(5)        The Court shall hear and determine the application and may make an order granting the application upon such terms as to costs or otherwise and conditions as the Court thinks fit or may refuse it.

An order made under this subsection may provide for the mutual exchange of the valuations and supporting data as filed in the Court with the application or subsequently or of so much thereof as in the opinion of the Court is fair, having regard to those valuations and data.

(6)        Notwithstanding subsection (1), the Court, on the date of the hearing -

(a)upon the application of a party in the matter pending or of its own motion; and

(b)upon hearing the views of the parties in the matter,

may make an order for mutual exchange of valuations and all supporting data in the possession of the parties and grant any necessary adjournment.

(7)        A party shall not at the hearing of the matter make any amendment of, alteration to or substitution for a valuation or any other document mutually exchanged pursuant to an order made under this section unless he adduces evidence or makes submissions satisfactory to the Court in explanation and support of that amendment, alteration or substitution.”

Turning to another matter: Mr van Amstel expressed the view that the Chief Executive was “selective” in increasing the valuation for the subject land from that which applied previously and in putting this proposition he explained that other properties in the area of the subject land had not been the subject of increased valuations. Whilst comprehensive evidence was not adduced in support of this suggestion, it can be disposed of by mentioning three important points. First, Mr Treston said that cane farm valuations had not been increased owing to an absence of sales evidence indicating that an increase was warranted. A number of the properties near the subject land are cane farms. Second, the previous valuation of the subject land as at a date of 31 March 1992 was based on the application of s.11(9) and (10) of the Valuation of Land Act (now s.17)to the land, given that there was no argument between the parties at that time that the land was not used exclusively for the purposes of farming. In the instant case it is the view of the Chief Executive that the subject land should be valued as land with a potential for development in subdivision. Third, it is the evidence that is adduced with respect to the use and valuation of the subject land at each relevant date to which I must direct my attention. Whether nearby lands have been properly valued or correctly classified according to the provisions of s.17 of the Act, are not matters which are apposite to the appeal before me. Certainly, issues of relativity can be addressed by an appellant, however, only in circumstances where the relativities relied upon are properly based and where the comparisons being made are between like properties.

The last matter which I need to dispose of, before considering the substantive matters

raised before me, is the suggestion made by Mr van Amstel that the Mur Group contract involving the subject land had played a part in inducing the Chief Executive to increase the valuation on the subject land. This suggestion arose from the discovery by Mr van Amstel, pursuant to the Freedom of Valuation Act process, of a photocopy of a press clipping held on a file of the Chief Executive’s Department referring to the Mur Group contract. Whilst Mr Crowley, for the Chief Executive, suggested in address that some reference may be made to that contract, it was clearly the case that Mr Treston’s valuation was based on sales other than that incomplete transaction involving the subject land.

I need to turn now to the question of whether the subject land qualifies for consideration as “farming” land pursuant to the protective provision of s.17 of the Valuation of Land Act. I should, for convenience, set out now the period of jurisdiction in these matters; that is, the period during which evidence of usage may be considered. This period commences with the date of valuation in each case and concludes with the date of issue of the valuation. For the 30 June 1993 valuation, the date of issue was 12 September 1994 and for the 1 January 1995 valuation the date of issue was 13 February 1995. The van Amstel’s acquired the subject land in about October 1967 and in 1968 commenced to improve the property by fencing it and clearing groundsel, swamp oak, wattle and regrowth. The total area at that time comprised about 223 ha, however, part was subsequently sold off, reducing the land to its current size. Initially the appellants tried to upgrade a Charolais herd then, unsuccessfully, tried to obtain a sugarcane assignment and in 1982 purchased a Belmont Red bull and 14 cows in calf to run with the existing Charolais stock. Further Belmont Red cows were purchased in 1983 and in 1988 and in due course the appellants concentrated on the Belmont Red breed. Mr van Amstel said that at its full size the subject land ran about 120 to 150 head of cattle, however, with the reduction in area of the land to its current size and the loss of some overland flow which supported winter feed, the herd was reduced to about 80 or 90 head, as best as I can understand it, during the mid-1970s. In 1990 a combination of drought and fires forced a further reduction in the herd down to a nucleus of the breeding herd of 18 head, however, this has increased in recent times to 35 head. The property has been affected by fires in August to September 1994 and in December of that year, in addition to the 1990 fire which affected about 80% of the property and destroyed all of the subdivisional fencing.

Evidence concerning the turn-off from the subject land was scant and inconclusive, Mr van Amstel saying at one stage that the property has been turning off between 20 and 30 head per year. I imagine that this would have been when the herd was larger and certainly would not have been the case for the relevant periods applicable in these appeals when the herd comprised between 18 and 35 head.

There was no evidence of a business plan concerning the Belmont Red herd, nor of any past profitability or, indeed, of levels of income.  Under cross-examination Mr van Amstel said at one stage that his approximate income since 1990 may have been about $3,000 to $4,000 per annum, however, later said that he did not think that he had made money from the venture but

that “I most likely broke even”.

The provisions of s.17 of the Valuation of Land Act differ in important respects from those in the formulation found in the previous s.11(1)(vii) of the Act. A useful discussion of the history of this protective provision may be found in the judgment of the Land Court in Taylor v. Chief Executive, Department of Lands (1993) 14 QLCR 477, however, it should be sufficient for me to say here that s.17 imposes a higher standard than that expressed previously. In particular, the definition of “farming” found in s.17 provides in clause (c) that the business being carried out on the land must have “a significant and substantial commercial purpose or character”. This requirement was discussed at length by the Land Appeal Court in Chief Executive, Department of Lands v. KW Whackett (unreported 3 March 1995) and in Allan Raymond Thomason v. Chief Executive, Department of Lands (unreported Land Appeal Court 3 March 1995). I do not intend discussing those decisions in detail, but suffice it to say that on the evidence I heard concerning the use of the subject land, the enterprise does not have a “significant and substantial commercial purpose or character”. The evidence from Mr van Amstel is that he has in mind building the herd to a point where a profitable enterprise would operate on the land, however, it is not clear to me how and whether such an outcome might be achieved. Whilst Mr van Amstel appears to devote a substantial amount of time and energy to the care and management of his livestock it is not input alone that gives a venture the characteristic of being commercial. The Land Appeal Court dealt with this issue in MacAdam & Anor. V. The Valuer-General (unreported 18 September 1981) and said this:

“We  stress  that  intentions,  hopes  and  aspirations,  however  sincere,  are  not

sufficient to constitute a business of primary production. They must be supported and affirmed by substantial and positive actions of a type and magnitude which are approaching or may be reasonably certain to reach commercial viability.”

Accordingly, I find that the use of the subject land did not at either relevant date satisfy the definition of “farming” provided by s.17 of the Act and should not therefore be valued as farming land for the purposes of the Act.

In addition to providing protection to land used for farming, s.17 of the Act contains protective provisions where land is “exclusively used for purposes of a single dwelling house”. It may be useful if I set out the relevant part of s.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 that value for that 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.”

When the van Amstels moved onto the subject land, they occupied a small three- bedroom bungalow on a temporary basis, then in 1981 purchased a transportable dwelling which they placed on the subject land and then moved into. In 1980, as I understand it, the appellants demolished the old bungalow and commenced the construction of a brick veneer house.  Whilst

that house is as yet not totally complete, it is clearly habitable and the van Amstel’s moved into it in the later part of the 1980s, as I understand the evidence. During 1984-85 they constructed a “week-ender” at Coomera Shores, designed to enable them to get away from the subject land and the work involved there in maintaining the property and in managing the livestock. A farm worker was housed in the transportable dwelling for a period from the late 1980s, then in 1990 the Bonnett family moved into that dwelling, paid a nominal rent and provided caretaking and other assistance on the property. This dwelling was vacated on 16 December 1994, has remained vacant since that time and has been used by the appellants for the storage of hay in the carport and on the verandah. Mr van Amstel said in evidence that he did not intend renting the property again, certainly if this would mean an increase in the payment of land tax or other Government charges.

The history of the occupation of the brick veneer house on the subject land is not as easily set out. It appears that the van Amstels made this their home until May 1994 when Mrs van Amstel was diagnosed with a medical condition requiring a number of major surgical procedures. Mrs van Amstel had, prior to the surgery, suffered pain for some time, however, the cause was not diagnosed until 1994. As a result of her condition, the appellants distributed their occupation on a “roughly half and half” basis between the Coomera Shores house and the brick veneer house on the subject land for the relevant periods of jurisdiction applying to each of these appeals. Mr van Amstel explained that his wife preferred to stay at the Coomera Shores property when he was away from the subject house out of calling distance for substantial periods as she felt more secure there, given the close proximity of neighbours who might be called upon for assistance when required. The subject house is, understandably, somewhat isolated with the nearest house being about one kilometre away.  He also mentioned that the track into the subject land is rough and bumpy and that it was often painful for his wife to travel over the track in a vehicle.

The van Amstels maintain the address of the subject land as their mail address; are recorded on the electoral roll as living on the subject land; and otherwise consider that the brick veneer house on the subject land as their main residence. Mr van Amstel provided recently taken photographs indicating continued occupation of the brick veneer house and he also tendered copies of an electricity account and an insurance statement for “house and contents” relating to the house. Whilst much of this evidence did not directly relate to the relevant periods of jurisdiction, I understood that such evidence was intended to indicate residential occupation of an ongoing nature.

The description of the Coomera Shores house provided by Mr van Amstel was of a modest structure which could readily be classified as a “week-ender”.  Nevertheless, Mr van Amstel has located his “office” there in the corner of one of the bedrooms and he has a telephone with an answering machine and a fax machine located there. He said that the electricity there is more reliable than at the subject property, though he also has a telephone with answering machine there.

At the threshold in such matters lies the question as to whether the Court has jurisdiction (Hazeldell Limited v. Commonwealth (1924) 34 CLR 442). Given that the appellants had, through Mr van Amstel, submitted with some vigour that the land was used for farming, though the term used was “primary production”, I sought the views from the Chief Executive’s side on the question of my jurisdiction concerning a possible “residential usage” under s.17 of the Act. It was submitted on the authority of Brisbane City Council v. The Valuer-General (1978) 5 QLCR 283 that if the Chief Executive was shown to be wrong on the question of residential usage then jurisdiction would lie. I was referred to Anthes v. The Valuer-General(1980-81) 7 QLCR 82 for purposes which are discussed later in this decision, however, the following extract in this case appears to express the Chief Executive’s submission on the matter of jurisdiction:

“If the evidence shows that this land is being exclusively used for the purposes of

a single dwelling house, then the Valuer-General has acted upon a vital error of fact and this error may be rectified.

Section 13(7) of the Valuation of Land Act provides:-

‘Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the Valuer- General shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered pursuant to a provision of this Section.’

In Brisbane City Council v. The Valuer-General, Shire of Esk, Somerset Dam Lands, (1978) 5 Q.L.C.R. 283, at page 303, Gibbs J, said:-

‘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 is true that the Valuer-General might by coincidence reach the right result by a wrong process of reasoning, but I cannot attribute to the legislature the capricious intention that a valuation shown to have been erroneously made should be presumed correct simply because by mere chance the Valuer-General may have hit on the right figure. If, for example, lands were valued as suitable for high rise city buildings although the law forbad them to be put to that use, or as rich agricultural land when in fact they had been rendered useless by excessive salinity, it would be absurd to hold that the valuation, although shown to be radically wrong, still must be deemed correct. In my opinion once it is shown that a valuation was made by a method fundamentally erroneous the presumption is rebutted. In the present case the presumption of correctness was rebutted once it was held that the submerged land should be valued in its actual state and not in the notional state in which the Valuer-General had valued it.’” (pp.85-86. Note: S.13(7) now appears as s.33 of the Act.)

I have some misgivings about the reasoning discussed in Anthes and will therefore further consider the question of jurisdiction.

Act:-

s.66:

Appeals brought before this Court are governed in particular by s.45(3) and (4) of the

1. An appeal shall be instituted by filing a notice of appeal in the Land Court registry.

1. Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner.” (S.56(1) and (2) which govern general valuations are expressed in similar terms.

The general jurisdiction of the Court with respect to appeals under the Act is found in “       Upon an appeal under section 55 the Land Court or, upon the rehearing of

any such appeal, the Land Appeal Court may -

(a)affirm the valuation appealed against; or

(b)reduce or increase the amount of that valuation to the extent necessary in its opinion to determine the same correctly under, subject to, and in accordance with this Act;

and, subject to section 70, make such order as it deems fit with respect to the payment of costs.”

This provision is extended to apply to appeals against annual valuations by s.29(3). The word “appeal” is not defined in the Act but would generally refer to a process to rectify a claimed erroneous decision either of a Court or of an executive authority. An appeal under the Valuation of Land Act is an appeal against a decision of the Chief Executive, that is against an executive authority, but is not an appeal (perhaps better termed as an “application”) which, when lodged, is at large for the Act in the form of s.45(3) and (4) or s.56 (1) and (2), expressly provides for grounds of appeal and imposes a burden of proof. The function of the Court in the circumstances of such an appeal is therefore judicial in the form of exercising an original jurisdiction and not executive and may be contrasted with the situation encountered in ex parte Australian Sporting Club Limited (1947) 47 SRNSW 283.

It seems to me to be quite clear that section 45(4) imposes a “legal burden” of proof on an appellant, that is a burden which remains with the appellant throughout the case. See, for example, Fitzpatrick v. Walter E Cooper Pty Ltd 1935 54 CLR 200 at 218 and the discussion on this topic in “Cross on Evidence” Fourth Australian Edition, pp.185-187 from which text these quotes are taken:

“ The legal burden of proof is the obligation  of  a  party  to  meet  the requirement of a rule of law that a fact in issue be proved (or disproved) either by a preponderance of the evidence or beyond reasonable doubt, as the case may be.” ...

“      The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non- existence of a fact in issue, due regard being had to the standard of proof demanded of the party under such obligation.”

The text discusses the topic by referring to a criminal law example:

“Depending on what follows, it is up to the accused to produce or elicit this evidence, although it will be sufficient if the evidence might raise a reasonable doubt in the minds of the jury as to whether his conduct was provoked or unprovoked. Secondly, it must not be supposed that the production of evidence always involves the giving of testimony or the tendering of documents. This will be necessary in the vast majority of cases in which an evidential burden has to be discharged, but there are rare instances in which the evidence called on the other side is such that it discloses facts which might give rise to a defence.”

An example may be found in the case R v. Bonnick (1976) 66 Cr App R 266 (CA). The following quotation taken from State Government Insurance Office (Qld) v The Valuer-General (1980-81) 7 QLCR 171 at 193 provides guidance in this jurisdiction:

“The Valuer-General joined issue with the appellant and in so doing revealed omissions and weaknesses inherent in the process of his valuation. Consequently, in my opinion, he cannot claim the protection of section 13(7). The judgment of Gibbs J., as he then was, in Brisbane City Council v The Valuer- General for the State of Queensland, (1977-78) 140 CLR 41 at p.57 gives support to this opinion.”

I gained some further assistance in this matter from Appeals against Determinations of the Valuer-General, Shire of Cloncurry (1971) 38 CLLR 1 where Mr Dodds said at pp.3 and 4:

“No doubt if the Valuer-General elects to give evidence the appellant is entitled to seize on any revealed weakness in his evidence in relation to any ground of appeal,” ...

“But when all the evidence is in, then at the end of the day if the balances are not tipped in favour of the appellant in relation to any or all of his grounds of appeal, even if the balances are then level as between the two parties, then in my view the decision must go against the appellant. The Land Court has wide powers in its decisions under the equity and good conscience provisions of the Land Acts, in s. 41(5)(a), but these cannot save the appellant in the circumstances outlined immediately above.”

What these authorities acknowledge and Brisbane City Council v. The Valuer-General confirms is that s.45(3) and (4) and s.56(1) and (2) deal with a legal burden of proof which I emphasise remains with the appellants throughout and not with an evidential burden. Were it otherwise, the inclusion of these provisions in the Act would serve no useful purpose.

It is therefore not sufficient for an appellant to rely on a defect in the Chief Executive’s case of the type described by Gibbs CJ, where that defect is not encompassed by the grounds of appeal.  It follows that my jurisdiction on the question of residential usage of the subject land

could not be based on a simple finding that the Chief Executive was wrong in fact in not deciding at either relevant date that the subject land was used “exclusively for the purposes of a single dwelling house”. This reasoning would appear to be consistent with the decision of the Land Appeal Court in Franklin v. The Valuer-General (1978) 5 QLCR 181:

“         It seems to us that it is not competent for an appellant before us to add to

his grounds of appeal as initially contained in his Notice of Appeal to the Land Court. If he were permitted to do so he would be flouting the mandatory provisions of the Valuation of Land Act previously enumerated. In simple terms in the conduct of his appeal before us an appellant remains limited to the grounds of his original Notice of Appeal to the Land Court.

On the other hand, the Valuer-General is not limited as to the nature of the reply he makes to an appellant’s appeal. He may decide to restrict his case to the specified grounds of appeal or, as more often happens, he places before the Court the whole basis of the valuation appealed against and in so doing endeavours to answer the specific grounds of appeal. The latter procedure is more conducive to satisfying an appellant’s dissatisfaction, and if in so doing matters other than those raised in the appellant’s grounds of appeal emerge, it would seem unfair if the Court denied cross-examination on them. At the same time, as the Act is presently drawn, the Court is not an investigating tribunal and we do not see how it could uphold or dismiss an appeal on grounds other than those specified in the appellant’s Notice of Appeal.” (at 184 to 185)

I should also mention that Franklin is supported by Jayar Pty Ltd v. The Valuer-General (1984) 10 QLCR 132 where it was held that where evidence is not covered by the grounds of appeal, it is not strictly admissible if tendered by the appellant.

In applying the above reasoning to the issue of jurisdiction, I have directed my mind to the actual grounds of appeal and find that the first mentioned ground is drawn in sufficiently wide terms to constitute a ground of appeal which would invite consideration of whether the subject land is used as “a single dwelling house” as is provided for in s.17 of the Act. That

ground reads:

“The Valuation is out of relativity with other properties in the area, including adjoining properties”;

and the evidence which I heard revealed that other properties in the area, including adjoining properties, comprised both those treated by the Chief Executive as farming properties and those valued on the basis of their use as a single dwelling house. I hold, therefore, that I have jurisdiction to consider the question as to whether the use of the subject land in either appeal attracts the “single dwelling house” protection of s.17.

For the appellant to gain the benefit of the protection of s.17 of the Act on the basis of the land being used “exclusively” for the purpose of a dwelling house, as the provision requires, such use must not be one of a dual or multiple use. In a “belts and braces” approach, the legislature went on in s.17(2) of the Act to define “a single dwelling house” and included the word “solely” as a qualifier to such usage:

“(a)     a dwelling used solely for habitation by not more than 1 family; or

(b)a dwelling occupied by the resident owner and used solely for habitation -

(i)part of which stands converted for use as a flat; or

(ii)part of which is used or for use as a furnished room or furnished rooms;

By a person or persons other than the owner’s family; or

(c)a building used solely for habitation and that consists of 2 flats, one of which is occupied by the resident owner;”

In Council of the Municipality of Randwick v. Rutledge (1959) 102 CLR 54 the following words appear at pp.93-94:

“The words ‘exclusively’ and ‘solely’ are familiar in fiscal and rating law.

Where an exemption from rating depends upon the use of land exclusively for a particular stated purpose, then the use must be for that purpose only (Nunawading Shire v. Adult Deaf and Dumb Society of Victoria (1921) 29 C.L.R. 98). The question arises, for example, when part of the subject land is used for the relevant purpose and another part for a different purpose (Sisters of Mercy Property Association v. Newtown and Chilwell Corporation (1944) 69 C.L.R. 369). The presence of ‘exclusively’, ‘solely’, or ‘only’ always adds emphasis; and is not to be disregarded (Reg. v. Cockburn (1852) 16 Q.B. 480, at p.491 [117

E.R. 962, at p.967]). When such words are present, it is a question of fact whether the land is being used for any purpose outside the stipulated purpose (cf. Trustees of Victorian Rifle Association v. Mayor of Williamstown (1890) 16

V.L.R. 251; Down v. Attorney-General of Queensland (1905) 2 C.L.R. 639). As Kitto J. said in Lloyd v. Federal Commissioner of Taxation (1955) 93 C.L.R. 645, at p.671, such words confine the use of the property to the purpose stipulated and prevent any use of it for any purpose, however minor in importance, which is collateral or independent, as distinguished from incidental to the stipulated use.” (Per Windeyer J).

I note that this authority has been referred to on this point on a number of occasions, most recently by the Land Appeal Court in AR Thomason v. Chief Executive, Department of Lands (cited above).

The following quotation taken from Rogers v. Lewisham Borough Council and Another

CA (1951) 2 pp.718-724 is expressed in terms consistent to those of Windeyer J:

“ ‘Used for the purposes of a place of public religious worship’ is clearly a description which admits of more latitude of interpretation than ‘exclusively appropriated to public religious worship’ which is the description to be construed in this case.”

Similarly, in Federal Commissioner of Taxation v. Manchester Unity IOOF (1992) 113 ALR at 126 the Court said:

“The word ‘exclusively’ connotes a degree of absoluteness.   It is an adverb

meaning ‘in an exclusive sense or manner; solely’.  Exclusive means ‘excluding

all but what is specified’, generally see the Shorter Oxford English Dictionary. The Macquarie Dictionary is even more emphatic; thus ‘not admitting of something else’; ‘incompatible’; ‘limited to the object or objects designated’; ‘shutting out all other activities’”

In Ryde Municipal Council v. Macquarie University (1978) 23 ALR 41 the High Court had to consider the question of whether certain land was used “solely” for the purposes of the University. Amongst obvious University uses was a building constructed by the University Union which contained a number of shops and banks used mainly by students, but also available to members of the public. The following quotation is taken from the judgment of Gibbs ACJ, one of the majority:

“Was it used ‘solely’ for those purposes?  The question must be considered from

the point of view of the University - was the use, by the University, solely for its purposes? The fact that the University derives some subsidiary and incidental benefit from using the land for its purposes does not mean that the land is not used exclusively for University purposes: Salvation Army (Victoria) Property Trust v Fern Tree Gully Corporation, supra, at p.170. In Randwick Corporation v Rutledge, Windeyer J said (102 CLR at 94): ‘When such words [as ‘exclusively’ or ‘solely’] are present, it is a question of fact whether the land is being used for any purpose outside the stipulated purpose ... As Kitto J said in Lloyd v Federal Commissioner of Taxation [(1955) 93 CLR 645 at 671], such words confine the use of the property to the purpose stipulated and prevent any use of it for any purpose, however minor in importance, which is collateral or independent, as distinguished from incidental to the stipulated use.”

Whilst the senses of “exclusive” and “solely” are quite clear and are explained in consistent terms throughout the authorities, consideration of the question of fact as to whether land is being used exclusively for a particular purpose turns on the evidence in each case. Nevertheless the cases do offer some guidance from the viewpoint not so much of what an exclusive or sole usage is, but from the perspective of what a residential usage is. I consider it appropriate to first of all consider the question from this perspective and to then ask whether the appellants make some use of the subject land that is not residential in nature. I should make clear that I use the term “residential” and its derivations for grammatical convenience throughout this decision, but it should be understood that by so doing I have in mind the “single dwelling house” mentioned in s.17 of the Act.

In considering the question of what a residential usage is, I see some benefit in referring to the judgment of Stephen J, as he then was, in Pioneer Concrete (Qld) Pty Ltd v. Brisbane City Council (1980) 54 ALJR 153 at 161:

“In Shire of Perth v. O’Keefe (1964), 110 C.L.R. 529, at p.535, his Honour,

speaking of the lawful continuation of non-conforming prior uses, denied that there was involved any ‘meticulous examination of the details’ of activities or any precise cataloguing of them but, rather, an inquiry as to what ‘according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date’. His Honour called in aid the criterion of that which would appeal ‘to practical minds as appropriate in the

application of town-planning legislation’.”

His Honour referred to provisions in the relevant Ordinances then went on to say:

“ Ordinarily these requirements will be met by a simple description which accords with common usage. For example ‘Drive-in Theatre’  will  suffice without any reference to the usual associated snack-bars and toilets. ‘Service station’ will be enough without specific reference to the usual small repair shop, to the provision of toilet facilities, or to the sale of accessories, tobacco and sweets. ‘Milk Bar’ is nowadays an acceptable description of small mixed businesses which sell few milk shakes but large quantities of sweets, tobacco, groceries, bread and so forth.”

Now let me say immediately concerning this quotation that, whilst it was concerned with the question of the description  of intended land uses for town planning purposes, it  also expresses a general principle that, in a question of land use, which is the question that I have before me, it is appropriate to ask what, to a practical mind, the use of a property as a place of residence includes.

In considering whether an activity falls within a residential usage, it will be useful to analyse the class of activity to see whether it is narrowly residential in nature, whether it is incidental, whether it falls within the compass of being an expected or reasonable use of residential premises, or whether it is clearly non-residential, or collateral, in nature.  I have distilled these four classes from the cases, with some refinement of my own.

Examples of the narrow residential class might be found in Oldham Election Petition, Baxter’s Case (1869) 20 LT 302 at 308, where Blackburn J said:

“We must consider the residence to be where the voter sleeps habitually.”

In Stoke-on-Trent Borough Council v. Cheshire County Council [1913] 3 KB 699 at 706, Ridley J said:

“The place of residence of a person is the place where he eats, drinks, and

sleeps.”

Now these two authorities were not concerned with the question of what is contemplated in a residential usage as such, but do serve to indicate, if indeed such is needed, that a narrow view of what is residential includes such things as eating, drinking, sleeping, washing and such like.

In turning to incidental uses, I find assistance in Rogers v. Lewisham Borough Council

cited above where at p.722 these words appear:

“          Counsel for the appellant argued and counsel for the respondent agreed that, although s.1 of the Act, in terms only exempts premises or parts of premises exclusively appropriated to public religious worship, it cannot reasonably be construed so strictly as to make the use for purposes incidental to such appropriation a disqualifying factor. Examples were given, such as the boiler rooms, vestries, cloak rooms, and store rooms for cleaning materials and so forth, commonly included in the premises of a church or chapel; and it was agreed on both sides that the exemption would not be lost merely on account of the use of

such ancillary conveniences for purposes in themselves secular. This, indeed, is no more than is demanded by common sense in order to give practical effect to the section.”

In that case the Court was considering whether premises were exclusively appropriated to public religious worship. In WH Bowden against determination of Valuer-General, Shire of Pine Rivers, (1980-81) 7 QLCR, the Land Appeal Court had to consider the question of whether land was “exclusively used ... for purposes of the business of primary production ...”. The following quotation is taken from pp.142-143:

“         Mr Jones submits that whilst much of Mr Bowden’s business activities on

‘Warner Hill’ fall within the definition of the business of primary production, (namely the business of the rearing of livestock) such business does not include the preparation of the training of horses for, and taking part in, competitive events or sport. He maintains such activities are collateral to the business of a stud. He emphasises the trend for Appaloosas and Quarter Horses in Australia to take part in racing.

On the evidence as a whole we find that Mr Bowden’s activities on ‘Warner Hill’ constitute a business of primary production in that he is in the course of establishing a viable horse stud - a business of rearing of livestock. We note according to the Concise Oxford Dictionary (3rd edition) that the meaning of the word ‘rear’ is ‘raise, bring up, breed, foster, nourish, educate, cultivate, grow (cattle, game, children, crops, etc.)’

We consider that the activities subsequent to breeding namely handling, training, showing and competing in competitions are essentially an integral part of such business and are undertaken to enhance the reputation or credentials of the stud - a necessary part of the processing of the animals for market. If their qualities are so demonstrated, a higher price may be commanded when they are sold.

On the evidence before us, we regard all these subsequent activities in the subject case  as incidental  to the business of  the stud  and not  collateral or independent thereof.”

I should note that the Land Appeal Court’s use of language in this last paragraph is taken from Council of the Municipality of Randwick quoted from above. Following consideration of these authorities, I have concluded that uses which would be considered to be residential in nature as being incidental to a narrow residential usage would include such matters as painting and cleaning a house, or the carrying out of repairs and such like, that is, matters which contribute to the enjoyment of the narrow residential usage. The term incidental has been used in Rogers v. Lewisham Borough Council to also include those activities that I have put into a separate class, that is activities that might be within the compass of being reasonably associated with a residential usage. An example may be that of after hours work in the case of a residence, or an occasional organ recital in the case of a place of public religious worship. I see a distinction in type between that class of activity which I have termed incidental and the class

which I have termed expected or reasonable and will maintain this throughout this judgment, however, there is benefit in referring further to Rogers v. Lewisham Borough Council where the Court decided that both classes (referred to therein as incidental only), constituted valid uses for the purpose of that decision:

“The range of uses which can properly be regarded as incidental is thus much

narrower, and, generally speaking, we do not think any use (not in itself public religious worship) can properly be so regarded unless it is either reasonably necessary to enable the premises to be used for public religious worship or an activity of a kind customarily regarded as appropriate to be carried on in a place of public religious worship, though not in itself a religious service. The question whether a particular activity passes the second of these tests is necessarily one of fact and degree, but we hardly think that (for instance) an occasional oratorio, organ recital, carol concert, or mystery play could be regarded as disqualifying a church or chapel from the exemption.” (p.722)

The final class of usage on my analysis includes those matters that are collateral or clearly non-residential in nature. A clear example of this might be where part of the premises is used as a shop to which the public has general access.

I now come to consider the question of fact in the instant case; that is “at each relevant date was the subject land being used for the purpose of a single dwelling house” and, if so, “was that use exclusive?”. The evidence reveals that at the first relevant date in 1993 the transportable dwelling was occupied by the Bonnett family who paid a nominal rent and performed certain caretaking and other duties on the subject land. If I were to find that the brick veneer house was occupied by the appellants at that date in a manner sufficient to satisfy s.17, then the use of neither house could be held to satisfy the “exclusive” requirements of s.17 (which refers to a “single dwelling house” generally occupied by “not more than 1 family”. The exceptions to this mentioned in s.17(2) have no application to the present facts.). This would be so even if I were to put aside for the moment the use of the land for grazing purposes. It is appropriate then that I concentrate at this stage of this decision on the use of the brick veneer house at each relevant date. It was submitted on behalf of the Chief Executive that the nature of the use of the brick veneer house by the appellants was insufficient to satisfy the definition of “a single dwelling house” provided by s.17(2) of the Act. In particular, it was submitted that the term “habitation” contained in that provision indicated a use of a more permanent or ongoing nature than that revealed by the evidence.

I have referred to dictionary definitions of “habitation”:

“ a place of above; dwelling. The act of inhabiting; occupancy by inhabitants.” (The Macquarie Dictionary 1982)

and

“1. The action of dwelling in or inhabiting; occupancy by inhabitants. 2. A place of abode or residence. 3. The name adopted for local branches of the ‘Primrose League’ in 1883. 4. A settlement.” (The Shorter Oxford English Dictionary 3rd 1990)

Having regard to these definitions in the context of s.17 of the Act, I agree with the Chief Executive’s submission to the extent that I find that legislature intended that the residential limb of s.17 be concerned with the use of a dwelling house that is something more than a casual occupation. I do not accept, however, that in the statutory provision Parliament had something more in mind by way of occupation of a dwelling than that evidenced in this case. The period of use and the other indicia of occupation appear to me to be sufficient to satisfy the requirement of s.17, putting aside for the moment whether that use is exclusive. There is evidence here of both physical occupation and an intention to treat the brick veneer house as home: elements held as satisfying the phrase “usual place of residence” in Hafza v. Director-General of Social Security (1985) 6 FCR 444, a phrase which would seem to be somewhat more demanding than the residential formulation found in s.17.

I do not see that the conclusion that I have just drawn is eroded at all by the substantial use that the appellants make of the Coomera Shores house. Section 17 does not require that the use of the subject land as a dwelling house be the sole residence of the appellants, noting in passing that s.17 does not require that it be the appellants who live on the subject land. If Parliament required that the subject land be the sole place of residence of the appellants, then clear words could have been included in the section to provide for this. In dealing with the question of whether the appellant was a “resident” for the purposes of the Income Tax Assessment Act 1936 in Koitaki Para Rubber Estates Ltd v. Federal Commissioner of Taxation (1941) 64 CLR 241 Williams J provided this explanation:

“         The place of residence of an individual is determined, not by the situation

of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode: See Halsbury’s Laws of England, 2nd ed., vol. 17, pp.376, 377.”

This quotation indicates quite clearly that one may reside in one or more places as long as physical presence and intention are present. His Honour’s words were referred to with approval by Wilcox J in Hafza (cited above) where he said at 450:

“It is important to observe firstly, that a person may simultaneously be a resident

in more than one place - see the facts of Lysaght (supra) and the reference by Williams J to a ‘home or homes’ - and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as ‘home’, a change of intention may be decisive of the question whether residence in a particular place has been maintained.”

I therefore hold that as at each relevant date in these appeals the appellants used the brick

veneer house on the subject land for the purposes of a single dwelling house in accordance with

s.17 of the Act. Given this conclusion, it also follows that at the relevant date of the first appeal such use was not exclusive as the Bonnett family were at that time in occupation of the transportable dwelling. The subject land, for the purposes of that appeal, therefore falls to be valued in accordance with its highest and best use.

At the 1995 relevant date the appellants were in sole occupation of the land, however, between 18 and 35 head of cattle grazed the property. The question is whether the activity of grazing cattle on the subject land renders the residential usage non-exclusive. Before dealing with this question, however, I must dispose of a submission made by the Chief Executive that as at 1 January 1995 there was a likelihood that the transportable dwelling could be reoccupied and that therefore use of the brick veneer house by the van Amstels could not be considered exclusive. This submission is based on the proposition that the house had become vacant only two months previously, by that services were still available to the house and that in all respects it was habitable. I accept that a temporary break in occupation, for example, between tenancies would not be sufficient to change the use, however, the evidence that I heard did not bring the use of the transportable dwelling into that category. Here we have evidence of the house remaining vacant prior to and for the whole period of jurisdiction; evidence of hay being stored in the carport and on the verandah of the house; and evidence from Mr van Amstel that the appellants did not intend letting the house again, given his understanding of the taxation implications. I conclude, therefore, that the potential for the transportable house to be reoccupied was not such at the relevant date as to impact upon the exclusivity of the use by the van Amstels of the subject land as a single dwelling house.

The grazing of the cattle on the subject land is not as simple a matter to dispose of. Between 18 and 35 head were grazing there in January 1995 and it was submitted on behalf of the Chief Executive that the grazing use of the subject land was not sufficient to satisfy the definition of “farming” provided by s.17 of the Act and that therefore the land fell to be valued at its highest and best use as the grazing of cattle on the land meant that the land could not be held to be exclusively used as a single dwelling house. I think the logic which is said to support this conclusion bears closer analysis. Does the presence of such an activity of grazing mean that a residence and the land upon which it is located is not being “exclusively used for the purposes of a single dwelling house”? The answer lies in considering whether the grazing of this number of cattle in connection with a residential usage is narrowly residential, incidental, expected or  reasonable or collateral in nature in the manner that I have explained these terms earlier in this decision.

Quite clearly, the grazing of cattle is not narrowly residential as I have used this term, nor is it incidental in the way that I have explained this above. There are many cases where a residential use has been expressly or impliedly held to be incidental to a farming use, however, such authorities cannot apply here. The real question in the instant case is whether the grazing activity on the subject land was expected or reasonable or collateral.  Whilst this is essentially a

question of fact, I have referred to a number of cases which provide assistance.

In John v. The Valuer-General (1988-89) 12 QLCR 219 the Court had before it a question, under s.11(1)(vii) of the Valuation of Land Act as to whether the land was used exclusively as a single dwelling-house. The facts of that case were that the land had a dwelling upon it occupied by the appellants as their home, but with a small area used to conduct a real estate business. At p.221 of the decision the Court said, “Here it is agreed that a real estate business is carried on in a part of a residence and in no way can it be suggested that this use is incidental to a residential use.” The Court found on the facts that the usage was strictly non- residential in nature. Unfortunately, the judgment provides no further facts as to what was involved in the carrying on of the real estate business on the land. However, it appears to have been the sole location of the business though no doubt the landholders would have attended at a variety of locations as part of the conduct of that business.

A similar issue was considered in the matter, Appeal Against Determination of Valuer- General - Beaudesert Shire (Curtis) (1979) 6 QLCR 83 where the appellant sought the protection of s.11(1)(vii) of the Act in that she claimed to conduct a grazing business exclusively on the land. Evidence revealed, however, that her husband conducted his practice as an accountant also in the house on the property and the question for the Court was whether the exclusive use requirements of the provision were satisfied. The judgment of the Court includes this summary of the relevant facts at p.86:

“         Mr and Mrs Curtis with their family reside in the brick residence on the

property. In addition to assisting in running the grazing activities Mr Curtis has continued to practise his profession as an accountant. He maintains an office in the house where he has his telephone, typewriter, adding machine, accounting machine, filing cabinet and storage space. He has ceased to do taxation work and specialises in auditing, mainly local authority audits and some private companies. He could not be really precise as to the extent of these activities but it would seem, dealing in averages as far as possible, that he is occupied on an average up to two and a half days per week with his accounting business. It is the main source of family income. He visits his clients’ premises and works in space made available by them. As to the use of his office at home he can be no more precise than saying its use would not amount, on an average, to more than 1 day per fortnight except for phone calls.”

This case is of particular interest in that first the Court rejected the landowner’s argument that the use of part of the property for his accountancy practice did not detract from classification of the land as being used exclusively for the business of primary production and in so doing said this about that argument:

“In A.P.M. Forests Proprietary Limited v. The Valuer-General (1975) 2 Q.L.C.R.

30 at p 37 I said ‘On present advice the degree of “exclusiveness” invoking the sub-section must be absolute’. In the intervening period I have heard  no argument to change my mind. In the subject case it was submitted that the amount of work performed by Mr Curtis in the office in the house was no more than that which would be performed by an accountant who had his office in town and who occasionally took surplus work home to attend to at night.  I do not

think that this is the test or a reasonable interpretation of the facts. The real point is that the only office or base for Mr Curtis’ accounting business is the office in the house on the subject property. It is akin to a registered office, if registration of a fixed address of a firm, was required. It is his point of telephonic and other communication. No doubt his accounts emanate from this office and it would be the address for payment. It is in effect, an integral and important part of his accounting business equally as much as if it were an office maintained in a town or city.” (p.87)

Now it will be noted that the word “exclusively” applied, under the provision then operating, to both “the business of primary production” and the use of the land “for purposes of a single dwelling-house”, yet at p.87 of the judgment the Court concluded that the land should be valued for its highest and best use for residential purposes, that is a single rural homesite. The Court also held that any enhancement in value from further subdivision must be excluded as is required when a parcel of land is brought under the protective provision of s.11(1)(vii) whether used for the business of primary production or for residential usages. The learned President in his judgment did not expressly refer to the question as to whether the use of part of the property as an accountant’s office had any impact on the issue as to whether the land was exclusively used for residential purposes. I can only conclude that whilst the President saw such usage as taking the property outside an exclusive use of the business of primary production, it did not impact upon a classification of the usage of the property as being exclusively residential perhaps because it was expected or reasonable.

In Benson and Hudlow v. The Valuer-General (1990-91) 13 QLCR 102, the Land Appeal Court had a fact situation where the appellants resided on the land which was also used for farming purposes by another person. The appellants wished to have the land valued as farming land pursuant to the then s.11(1)(vii) of the Act: a proposition with which the Court did not agree, deciding that the residential use was not incidental to the farming use, and as such there was a dual use. Similar reasoning had been applied by the Land Appeal Court in Hitzke v. The Valuer-General (1990-91) 13 QLCR 109.

The Court had before it in Taylor v. Chief Executive, Department of Lands (1992-93) 14 QLCR 477 facts which were materially similar to the matter before me. The appellant agisted horses on the land, but failed in convincing the Court that this use was of sufficient substantiality to satisfy the s.17 definition of “farming”. Having disposed of this question, the learned Member accepted the submission of the Chief Executive that the land which was in two lots should be valued as a rural homesite as the appellant resided on the land. Taylor may be contrasted with Anthes (cited above) where the Court found that the land did not satisfy the requirements of s.11(1)(vii) to be classified as “farming” land and therefore should be valued for its highest and best use for subdivisional purposes. In this case the appellant resided on the land, a use which is described in the decision as “incidental to the actual use to which the land has been put over the years” (p.86). The decision continues:

“         In the subject case, the evidence from Mr Anthes is that this land was,

and still is, used for primary production.  In years gone past, it was used for the

business of primary production in that it was used as a dairy farm with sales of cream to a butter factory and sales of livestock. In recent years, there have been activities of rearing of livestock and bee keeping, but the extent of the activities falls far short of the standard stated in the Walker Case as the proper tests to be applied in looking for the viability to constitute a business of primary production. If the present activities were enlarged substantially, then the landholder would be at liberty to apply to the Valuer-General to reconsider the matter, but on the evidence I must find that the period over which I have jurisdiction, the activities of primary production being carried on on the land fell short of the activities necessary to qualify for protection under section 11(1)(vii) of the Act:”

For completeness, I should say that I have considered Whackett (cited above) where, having rejected the lessee’s submission based on a “farming” use, the Land Appeal Court held that the land should be valued for a highest and best use of two rural residential sites.  This case is of not assistance on this point, however, as there was no dwelling on the land at the relevant date of valuation and therefore no residential usage.

Now the grazing of cattle on the subject land could not be considered to be in the same category as the real estate agency use in Johns because it is not commercial in character. Indeed, the grazing on the subject land would exhibit fewer commercial features than the accounting business in Curtis. The instant case can be distinguished from Benson and Hudlow and from Hitzke but is quite similar, in factual terms, to Taylor and Anthes, two cases which I have some difficulty in reconciling, except perhaps to point out that Taylor was directly concerned with the consideration of s.17 of the Act as it now is and was cited with approval in Whackett, whilst Anthes was brought before the Court under the previous s.11(1)(vii) of the Act.

I will elect to proceed in the same way that the Court did in Taylor. It seems to me that where land is put to the use of cattle grazing in the manner of the subject land, and that land is held not to be used for “farming” as defined in s.17 of the Act, then the use must be classified as being an expected or reasonable use of land used as a single dwelling house; that is, as long as the occupation of the dwelling house is by the same party who grazes the cattle. To hold otherwise would be to place the van Amstels in a most peculiar position. Let me suggest for the moment that it would be an expected or reasonable use of residential land for, say, a few house cows to graze the land or for some pet animals to be cared for there. In other words, if the van Amstels had fewer cattle then it would probably be readily accepted by the Chief Executive’s side that the grazing was not distinct from and collateral to the residential occupation of the land. On the other hand, if the grazing herd was larger and there was evidence of a business which would satisfy the “farming” definition of s.17, then the residential usage would be seen as incidental to the grazing use. I do not accept the logic, however, that says that because the grazing use falls into neither of these factual scenarios that there is therefore a use which is separate from the residential use and thus the land must be valued for its highest and best use. What is this use that is said to be separate from the residential use? Quite clearly, the use is a hobby or a recreation albeit in Mr van Amstel’s case one which is demanding in time and effort and one which he hopes will emerge as something more in the fullness of time with the support

of good seasons and a suitable market.

I am therefore of the view that the grazing of cattle on the subject land is incidental to or, in my language, is an expected and reasonable use of the land used for the purpose of a single dwelling house and that as at 1 January 1995 the land must, accordingly, be valued for residential purposes.

I will deal now with the question of the 1993 valuation of the land for its highest and best use. For this appeal Mr van Amstel did not produce evidence of the value of the subject land, excepting for the purposes of “farming”.  The Chief Executive, however, referred to three sales of residential in globo land and submitted that the rezoning of the subject land and its application to residential subdivision was such a live prospect at the relevant date that a prudent purchaser would have paid substantially for that potential. In addition to the direct comparison of the sales included by Mr Treston, he explained that he had employed a check method whereby he had placed a value on the land as if zoned for development with water, sewerage and suitable access in place, then made a deduction for each of the requirements necessary to bring the land to that condition. Though he explained the method in evidence, no further evidence was tendered showing the actual calculations.

The first question in considering the 1993 valuation for residential development must be concerned with ascertaining the likelihood or the prospect of rezoning. Having regard to the evidence that I have outlined earlier in this decision concerning the rezoning history of the subject land, I am left with no doubt that the local authority would positively entertain an application for rezoning of the land to a “Residential A” or a “Special Residential” zone which would allow urban residential development. That far from disposes of the matter, however, as a potential purchaser of the subject land would then need to direct his mind to the possible cost associated with dealing with certain development limitations affecting the subject land, which I will discuss further below, and with the possible conditions of rezoning to be imposed by the local authority.

Mr van Amstel pointed out, for example, that a substantial buffer strip would be required between the developed lots on the subject land and the cane lands to the east. Mr Treston agreed with this suggestion but said that the area of land in question was low lying and relatively flat and the area required for the buffer strip would also constitute the park contribution required as a condition of subdivision.   I accept Mr Treston’s view which is consistent with usual practice.

Another issue raised was that of the cost of water connection, however, it was conceded by Mr van Amstel that the allowance made by Mr Treston was adequate. I have already mentioned that the frontage of the subject land to Eggersdorf Road is quite narrow and that any subdivisional development of the land would be dependent upon the provision of wider access. At least four suitable properties adjoin the subject land and offer the potential for acquisition of suitable access. Mr Treston said that he had allowed a figure of $600,000 for the purchase of one of these lots and when I consider the sales and relativity evidence mentioned later in this decision, it seems to me that that provision is adequate, if not generous.  I certainly do not agree

with the submission of Mr van Amstel that there would not be a potential purchaser of the subject land who would have rezoning in mind, given the present narrow frontage to Eggersdorf Road.

The present unavailability of sewerage connected to the subject land was debated at length during the evidence. Mr Treston said that a sewerage system consisting of a main pipe running to the Beenleigh sewerage treatment plant is expected to be operational in the near future, however, that the Beenleigh plant is at capacity and needs to be upgraded. The preferred option of the local authority is to construct an additional facility in the Pimpama/Jacobs Well locality to service the expanding Albert corridor, however, the residents in the area have expressed resistance to the proposal. In the meantime, some developments such as “Camelot Estate “allow sewage to lie in the pipes for a period, then pump it out and transport it to Beenleigh for treatment. Given the limited capacity of the Beenleigh plant, it would be uncertain at the relevant date in 1993 whether the Camelot interim solution would be available to the subject land the consequence being that a package plant may need to be utilised for a period, or sewerage may need to be constructed to Behms Creek which is apparently some distance away. Mr Treston agreed that the package plant or Behms Creek options would be very expensive, but he argued that the risk of substantial expense to provide for sewerage connection to the subject land or, alternatively, the delay in development of the subject land featured adequately in the manner in which he had compared the subject land with the sales. It is therefore to the sales included by Mr Treston to which I must refer.

Mr Treston’s first sale took place in October 1994 with the sale property located adjacent to the Pacific Highway at Ormeau, having an area of 38.31 ha. The sale price was $4,000,000 which Mr Treston analysed to an unimproved figure of $3,940,000, after a deduction for clearing and then applied that at $3,500,000 or $91,360 per ha. The sale property is situated on the corner of Eggersdorf Road and the Pacific Highway about 48 km south of Brisbane and 36 km north of the Bundall Post Office. Town water, sewerage, telephone and electricity were available to the sale property, however, sewage is transported to Beenleigh treatment plant, as explained earlier. Mr Treston described the sale property as moderately undulating forest ridges with a variance in topography of about 20 metres from the highest ridges to the lowest point towards the eastern boundary. Approximately 4 ha on the eastern boundary adjoining the Beenleigh/Helensvale railway line is low and subject to flooding. The majority of the land is well elevated and flood free. The frontage to the Pacific Highway is about 493.55 metres, and whilst this exposure is an advantage for marketing purposes, some highway noise would impact upon the sale land; however, the natural slope of the land and the depth of the highway excavation would partially protect the property from that source of noise.  The land has, since the sale, been developed into a residential housing estate called “Camelot Estate”. Mr Treston said that the sale property is superior to the subject land, given its zoning as “Residential A”, “Residential B” and “Special Residential” at the time of sale, its exposure to the Pacific Highway, access to Eggersdorf Road and proximity to services.  In comparison with this sale, Mr Treston applied $28,280 per ha to

the subject land. It seems to me that each of the negative features of the subject land raised by Mr van Amstel were considered by Mr Treston in his comparison between the Camelot Estate sale and the subject property. In particular, Mr van Amstel raised the question of sewerage and the fact that the sale land was zoned at the time of purchase, two matters considered by Mr Treston.

Sale 2 took place in March 1994, the sale price being $3,150,000 for an area of 67.5 ha located off the Old Pacific Highway at Ormeau on the western side of the current Pacific Highway.  Mr Treston analysed the sale price to a figure of $3,050,000 after the deduction of

$100,000 for clearing, resulting in an applied unimproved value of $2,900,000 or $42,963 per ha. I will not detail this sale further as Mr Treston expressed the view that the sale appeared to be low, whilst Mr van Amstel said that he had information to the effect that about half the purchase price was loaned to the developer free of interest by the vendor. The Form 100 lodged with the Land Title Office as part of the conveyancing process records that the sale was a “cash” sale and I would not be inclined to hold that the transaction was on terms, unless I was presented with persuasive evidence to that effect. Nevertheless, in the circumstances of this case where I have before me two other reliable sales, I will take heed of the evidence I have outlined above concerning the question surrounding the sale price and treat the application of this sale with caution. I do not accept the submission from the Chief Executive’s side that, given Mr van Amstel’s evidence, the sale price was probably double the recorded figure as it seems to me that there are other possible conclusions that could be drawn on the evidence.

Mr Treston’s Sale 3 has an area of 28.25 ha and sold in September 1993 for $1,700,000. The sale was analysed to $1,670,000, then applied at $1,400,000 or $49,557 per ha, the only improvement being clearing. The sale land was zoned “Rural B” at the time of sale, however, was subsequently rezoned to “Residential A” and is presently being developed into a residential estate named “Heritage Gardens”. Whilst Mr van Amstel suggested that the sale property was in a well developed area, it was Mr Treston’s view, and one which is accepted by me, that the site is considered “a bit out of the way” being located adjoining a small residential village surrounded by predominantly “Rural A” subdivision and large grazing blocks. Some of the blocks to be developed in “Heritage Gardens” would have views of the Coomera River, however, the bulk of the land, according to Mr Treston, does not enjoy that outlook. Mr Treston saw the sale property as being superior to the subject land on a per hectare basis, given the development constraints of the subject property and said that it supported his figure of $28,280 per ha on the subject.

I should mention Mr van Amstel’s concern that the date of the sales transactions is somewhat after the relevant date and therefore the sales are of questionable value as bases for valuation. I do not agree that Sale 3, which occurred only some three months after the relevant date, could be said to have taken place in a different market from that which prevailed in June 1993. Sale 1 is a little further removed in time, however, it is Mr Treston’s appreciation of the market that Sale 1 is a suitable indicator of the general level of value for in globo land at the relevant date.   Mr Treston has, in my view, provided a well-supported valuation, that has

adequately taken into account the various development constraints of the subject land by way of making substantial adjustments in the application of the sales. I will determine the unimproved value of the subject land as at 30 June 1993 in the amount of $2,300,000.

In support of a residential valuation for the 1995 appeal Mr van Amstel tendered valuation evidence. He elected to provide information of 13 valuations of adjoining properties which were determined by the Chief Executive.   The Chief Executive’s valuations were at

$45,000,  $70,000,  $72,000,  $75,000  (five  properties),  $77,000  (two  properties),  $108,000,

$120,000 and $130,000. Mr van Amstel averaged the valuations of the properties fronting Goldmine Road in the above group at a figure of $86,285 per lot and those fronting Eggersdorf Road at $78,333 per lot. He said that the valuation which should apply to the subject land, if valued for residential purposes, should lie between these two average figures.  This evidence is of no assistance to me. In valuing land, it is appropriate to compare the subject land with other properties for which a value is known, and to make adjustment in accordance with material differences between the comparison property and the subject property. The process is sometimes referred to as comparing “like with like”. In addition to this, a process of averaging basic evidence is generally unacceptable and if one is to direct one’s mind to what takes place in the marketplace when land transactions occur, it would be clear that such an approach would be fallacious, as was observed to be so in Commonwealth of Australia v. Milledge (1952-53) 90 CLR 157.

Mr Treston tendered three sales in support of a residential valuation of $375,000. The sales took place at March 1993, June 1993 and August 1995 for prices of $78,000, $110,000 and

$110,000 respectively. In addition to these sales, Mr Treston referred to a Chief Executive determination of an adjoining property, being Lot 5 on RP 118983 in the amount of $108,000, the relativity property having an area of 18.292 ha. He also referred to a determination by the Chief Executive in the amount of $130,000 for a residential property in three lots adjoining the subject land at its Eggersdorf Road boundary on the north-western side. Under cross- examination Mr Treston also mentioned a Chief Executive determination of what he described as a “similar property” at Willowvale determined at $400,000 in either 1995 or 1996, there being no distinction between the value at these dates, in his opinion. No details of the Willowvale property were offered in evidence.

Mr van Amstel suggested that the relativity property adjoining the subject land at its road frontage had a superior frontage to the subject land and therefore ought to be valued higher. Given that the valuation that I am now considering is for residential purposes, and that I must observe the provisions of s.17(1) of the Act, I would express the view that such a feature would not be relevant in a residential usage, thought it is clearly of significance if the land were to be placed under subdivision. Mr van Amstel also commented that Mr Treston’s third sale had superior views to the subject land, however, Mr Treston pointed out that a number of house sites would be available on the subject land which could take advantage of a similar outlook to that available on the sale property. Perhaps more importantly Mr van Amstel suggested that the

subject property’s total area of 81.33 ha constituted a disadvantage compared with the comparable properties referred to by Mr Treston which had areas of 4,031 m², 3.908 ha, 4.653 ha, 18.2929 ha and 10.422 ha respectively. He expressed this disadvantage in terms of the additional maintenance which is required on the subject land compared with those smaller properties and, in particular, referred to the presence of fire weed on his land. I do not doubt that there will be potential purchasers in the marketplace who would be dissuaded from purchasing the subject land given its large size, however, I agree with Mr Treston that the large size of the subject land is a positive feature for which some individuals would be willing to pay substantially. In saying this, I am mindful of Mr Treston’s comment that the valuation provided by him is somewhat hypothetical, given that he doubted that such a property as the subject land would sell in the Albert Corridor as a rural homesite.  In conclusion, I accept Mr Treston’s view of the residential value of the subject land as at 1 January 1995.

Appeal AV95-170 is therefore allowed and I determine the valuation in the amount of Three Hundred and Seventy-five Thousand Dollars ($375,000).

Appeal V95-169 is dismissed and the valuation is determined at Two Million Three Hundred Thousand Dollars ($2,300,000).

RP SCOTT MEMBER OF THE LAND COURT