Welsby v Minister for Lands

[1994] QLC 12

[1994] QLC 12

 

  LAND COURT

BRISBANE

6TH MAY 1994.

Re:     Determination of the Unimproved Value
  for Conversion Purposes - Special Lease
  No. 44/42836, Townsville District -

Lessees:      Ernest William Welsby and
  John Archibald Burns

(Hearing at Ayr)

D E C I S I O N
           Messrs Welsby and Burns are the lessees of Special Lease No. 44/42836, Townsville District, who, in accordance with the provisions of Section 207 of the Land Act 1962, applied to have the tenure of this land converted to freehold.  The parties agree that the relevant date in this matter is 4th October, 1990, which I am told is the date that the application for conversion of tenure was received by the Minister for Lands.
The Minister determined the unimproved value of this land at $6,500 and, in accordance with the provisions of Section 207(4)of the Land Act, the lessees requested that this matter be referred to the Court for hearing and determination.
           Special Lease No. 44/42836 is in respect of land described as Lot 17 on Plan GS 800822, Parish of Selkirk.  The land, containing an area of 684 sq. metres, is situated in the town of Jerona, a small township situated near the mouth of Barratta Creek, approximately 42 kilometres north-west of Ayr and about 74 kilometres south-easterly of Townsville.  From the bitumen sealed Bruce Highway there are about 16 kilometres of gravel road between the highway and the town of Jerona, which deteriorates during wet weather.
           The report and valuation tendered on behalf of the Crown describes the land as a flat internal lot with grey clay soils, openly timbered with Moreton Bay ash and tea-tree.  There is a possibility that minor flooding will occur in very high tides.  There are no services available to the subject land, although the report indicates that the Burdekin Shire Council has resolved to arrange for the supply of electricity to the town of Jerona and will require that the land owners contribute to the cost. 
           The land is zoned "Special Rural" under the town planning scheme for the Shire of Burdekin.  There is a low-set dwelling situated on the land, which is used as a seaside weekend residence.
           Mr Ernest William Welsby appeared and gave evidence on behalf of the lessees.  Mr Welsby explained the history of the township of Jerona which over the years has turned into a fishing township.  He said there were no capital works of any kind in the town and until five years ago there was no electricity.  They now have electricity, but it cost each of the land owners $1,000 to have it connected.  He explained that a house was erected on the subject land in 1947 and is used as a weekender fishing cottage.
           Mr Welsby went on to say that the road is not all-weather and in flood times the township is isolated.  He also said the Barratta Creek bank is eroding quite fast.  The subject land experiences some flooding from Barratta Creek in flood time when the tide is exceptionally high.  In 1990, he said, the land was badly flooded, although water did not enter the house.
           There are no formed roads in the township, only access tracks to individual properties.  Mr Welsby explained that the esplanade between the house and the creek is some 75 metres wide and, while there is no erosion on the subject property, the creek bank is gradually eroding.
           Mr Welsby submitted that the subject land should have an unimproved value of $4,000 for conversion purposes.  He seemed to base this figure on the fact that an owner of the adjoining property, Mr John Sutherland, had told him that he had freeholded his property three years ago for $4,000.  However, Mr Welsby was unable to substantiate this.
           Mr John Archibald Burns, the other lessee, also gave evidence.  Mr Burns said that he had been told that a Mr Collins, the lessee of a property to the north of the subject land, was able to convert his property fronting Wakefield Avenue for $3,500 in about 1990.  This is not a riverfront allotment.
           Mr Michael Stephensen, registered valuer employed by the Department of Lands, gave evidence on behalf of the Crown.  Mr Stephensen was not the valuer originally responsible for this conversion valuation, but had inspected the subject land and had also satisfied himself that the basis of valuation was fair and reasonable. 
           The land had been valued at $6,500 on the basis of acceptances of conversion values by lessees of nearby leases.  In addition, Mr Stephensen relied upon the sale of a special lease which occurred in August 1988.  This property of 600 sq. metres sold for $6,000 and Mr Stephensen said that the improvements on the land added no value to it.  He said that apart from being 80 sq. metres larger, the sale was otherwise almost identical to the subject land.
           Mr Stephensen also introduced details of the sale of freehold land subsequent to the relevant date.  This property, comprising an area of 807 sq. metres, sold in September 1992 for $11,000 with very limited improvements.  It is situated facing Wakefield Avenue at the rear of the allotments on the esplanade fronting Barratta Creek.  It is slightly larger than the subject land but otherwise similar.
           Mr Stephensen was not aware of a conversion of the neighbouring allotment, Lot 13, by Mr Sutherland.  Therefore, I have only the hearsay evidence of Mr Welsby on this and, in the circumstances, I am not able to accept it.
           The only recent conversions that Mr Stephensen was aware of were those shown on his schedule and map.  These five conversions were all special leases, with areas varying from 608 sq. metres to 741 sq. metres.  None of them were riverfront allotments, three of them well removed from the river.  In each case the accepted conversion value is $6,000, with relevant dates ranging from 31 October 1990 to 28 May 1991.
           In this case the evidence of unimproved values is far from ideal, being based on acceptances of conversion valuations rather than sales.  What sales are available are not particularly helpful, one of a special lease and the other some two years after the relevant date.
           It is somewhat unusual that all five allotments submitted as a basis of valuation were for conversion valuations of $6,000 in each case, no matter where situated in the town of Jerona.  Mr Stephensen says that the subject land is better situated as it fronts the esplanade to Barratta Creek.  Mr Welsby argues that such situation is of no advantage, as there is no real outlook and besides the creek is slowly eroding.
           After considering the evidence, I have come to the conclusion that since the Crown is relying on conversion values of $6,000 in each case, I should resolve any doubts in favour of the lessees and determine the unimproved value for the subject land at $6,000 also.
           Accordingly, the unimproved value of Special Lease No. 44/42836, Townsville District, for the purpose of conversion of tenure is determined at Six Thousand Dollars ($6,000).

J J TRICKETT
  MEMBER OF THE LAND COURT