Bramwell v Chief Executive, Department of Natural Resources [2000] QLC 47

LAND COURT, BRISBANE 31 July 2000 Re: Appeal against valuation - Valuation of Land Act 1944 - City of Ipswich. (V98-858). Mark Sidney Bramwell and Donna Louise Bramwell v. Chief Executive, Department of Natural Resources D E C I S I O N This is an appeal by Mr and Mrs Bramwell against the valuation of part of their property as a separate valuation by the Chief Executive, Department of Natural Resources. Mr and Mrs Bramwell are the owners of land described as Lot 173 on Plan S151839, Parish of Ipswich, County of Stanley, containing an area of 17.3 hectares. The land is situated at 156 Fischer Road, Ripley. At all relevant times, it was zoned "Non Urban" under the Town Planning Scheme for the City of Ipswich. Their residence is situated on the land which is also used for the cultivation of fruit trees. In early 1998, the owners received a valuation notice advising them that the respondent had valued Lot 173 at $102,000, as at 1 October 1997. The owners objected against that valuation. Subsequently, in about July 1998, the owners received a separate valuation notice valuing 4000 square metres of that land at $40,000, also as at 1 October 1997. The owners objected against that valuation on 13 July 1998, pointing out that although a manager's residence had recently been constructed on the property in addition to the owner's residence, the land had not been subdivided and Lot 173 remained as one parcel. They asserted that the valuation for the 4,000 square metres of land was not in respect of a separate rateable parcel of land and should not have been made. The owners received a letter dated 24 August 1998, from Mr B McDonald, a Senior Valuer in the respondent's Ipswich office, acknowledging their objection and informing them that the valuation had been made under section 34(2) of the Valuation of Land Act 1944 which stated that parcels of land shall be valued separately if [2000] QLC 47 -- 1 of 8 -- 2 buildings are erected on them which are obviously adapted to separate occupation and which may be lawfully held under separate ownerships. The letter went on to advise that the area of 4,000 square metres was derived from Plan 911431 prepared over their property and that there were similar subdivisions in their locality. I was not advised whether further discussions or conferences were held regarding their objection, but on 1 October 1998, the respondent issued a decision disallowing their objection. The owners then appealed to the Land Court on the grounds that the respondent had erred in directing that the land be valued as a separate parcel. Evidence in this matter was given by Mr MS Bramwell on behalf of the appellants and by Mr B McDonald, Senior Valuer of the Department of Natural Resources, on behalf of the respondent. The sequence of events which led to the issuing of the contested valuation was explained by the two witnesses. Mr Bramwell's work commitments meant that he was frequently absent from the property. The owners therefore decided to construct another dwelling on the property for Mrs Bramwell's mother, Mrs Robyn Klibbe and her husband, so that they could act as caretakers and tend to the maintenance of the property and the fruit trees. In April 1997, the owners applied to the Ipswich City Council for town planning consent for the construction of a private dwelling on the property as a "relative's flat" (subsequently changed to "country dwelling"). They were then advised by the development assessment manager of the Council in a letter dated 28 April 1997, that uses for a "relative's flat" or a "rural worker's dwelling" were not permitted. The only possibility in the circumstances would be for a family subdivision, which would require that a family subdivision application be lodged. On 14 May 1997, the owners lodged an application for a family subdivision. The Council advised them by letter dated 23 June 1997 that the application for a two- lot family subdivision had been approved, subject to a number of conditions. One of those conditions was the submission of a plan of survey to conform with the proposal. That approval would lapse after two years if the conditions were not complied with. The owners were not able to satisfy all the conditions and the approval was never finalised. However, in attempting to comply with the conditions they had a plan of survey prepared (Plan 911431) which the surveyor lodged with the Registrar of Titles. However, the plan was never registered. -- 2 of 8 -- 3 The owners had also placed a public notice advertising their proposed use, in the "Queensland Times" newspaper on 18 July 1997, as required by the Local Government (Planning and Environment) Act 1990. However, on 29 July 1997, the Council informed them that the notice was incorrect and the proposal would have to be re-advertised. As the owners were not able to comply with all the conditions, the Council advised them to withdraw their application for a country dwelling and lodge an application for a town planning consent permit for a "manager's residence". The owners lodged such an application on or about 12 August 1997. Then on 10 October 1997, the Council informed them of its intention to approve the issue of a town planning consent permit, subject to certain terms and conditions. This time, the owners were able to comply with all the conditions. Finally, on 27 October 1997, the Council issued a town planning consent permit for the construction of a manager's residence. The manager's residence was duly constructed and occupied by Mrs Klibbe and her husband. So after a long process involving three separate applications, preparation and lodgment of a survey plan, etc., the owners were able to achieve what they had intended to achieve in the first place. However, their troubles did not end there. Mr McDonald explained that when investigating objections in the area he noted that there were two houses on Lot 173. At that time he discussed the matter with Mrs Bramwell and Mrs Klibbe. Later, he caused further investigations to be made. Those investigations enabled Mr McDonald to discover the circumstances which led to the construction of the second dwelling. However, he said that there was some confusion by the Council staff as to the sequence of events leading up to the issue of the town planning consent permit. Mr McDonald's investigations also produced the plan of survey and a site plan for the construction of the residence. From those plans he ascertained that the curtilage of the residence was to have been 4,000 square metres. Under the town planning scheme at that time a family subdivision of 4,000 square metres was permitted. As a Senior Valuer, Mr McDonald had been delegated many of the powers of the respondent under the Valuation of Land Act, including the powers relevant in this case. He reasoned that in the present circumstances, section 34(2) of the Act required that he declare the 4,000 square metres of land surrounding the manager's residence to -- 3 of 8 -- 4 be a separate parcel and to value that area as a separate valuation from the valuation of the balance of Lot 173. From sales of comparable lands in the area he concluded that the 4,000 square metre parcel should be valued at $40,000. The owners concede that, providing the valuation was correctly made, the valuation of $40,000 is appropriate. The relevant provisions in this case are contained in section 2 and section 34 of the Valuation of Land Act. Section 2 contains the definition of "parcel of land" which is defined to mean "…every part of an area of land which is separately held by any owner, or any part of an area of land which the chief executive directs should be valued as a separate parcel". Although there is no provision expressly giving the Chief Executive the power to declare a parcel of land, it has been held that the definition contains an implication that the Chief Executive has that power. Section 34 of the Act reads as follows: "(1) Unless the chief executive otherwise directs, there shall be included in 1 valuation - (a) several parcels of land which adjoin, and are owned by the same person, and where either no part is leased or all the parcels are let to 1 person; (b) several parcels of land in the same area which do not adjoin but are worked as 1 holding and used exclusively for the purposes of farming, and are owned by the same person and which, if let, are all let to 1 person. (2) However, any such parcels of land shall be valued separately if buildings are erected thereon which are obviously adapted to separate occupation and which may respectively be lawfully held under separate ownerships." Sub-sections (3) and (4) are not relevant in this case. Mr McDonald felt that the provisions of section 34(2) applied in the present circumstances. As he had stated in his letter to the appellants, he reasoned that all the requirements of that sub-section were present and that he should declare the 4,000 square metres surrounding the manager's residence to be a separate parcel. Once that separate parcel was declared, in the present circumstances, as there were buildings erected on the separate parcels which were obviously adapted to separate occupation, two of the requirements were satisfied. However, could it be said that those parcels may be lawfully held under separate ownerships? -- 4 of 8 -- 5 Mr McDonald concluded that they could. The owners had obtained Council approval for a family subdivision. As part of that process, a plan of survey had been prepared surveying 4,000 square metres of land from Lot 173. Mr McDonald was aware that the family subdivision was not proceeded with and that the owners ultimately obtained town planning consent permission for the construction of a manager's residence. However, he reasoned that the owners had constructed a second dwelling on their property; they had Council approval for a family subdivision excising 4,000 square metres from the property; therefore, regardless of what process had been involved in the construction of the residence, there was (1) a separate building on the land which was (2) obviously adapted to separate occupation and (3) which could be lawfully held under separate occupation, if the owners had availed themselves of the family subdivision. He had satisfied himself that all the requirements of section 34(2) were present and that he was obliged to value the 4,000 square metre parcel separately from the balance of Lot 173. Mr Bramwell strongly contested that interpretation. On 18 November 1998, he wrote to the Council requesting information on the possibility of subdividing the existing manager's residence from the property. On 19 November 1998, the Assistant Planning Officer informed him that the caretaker's flat (manager's residence) was considered an ancillary use to the existing dwelling on the property and that there are no subdivision options available. The letter went on to state that the current town planning scheme requires a minimum subdivision area of 16 hectares and the property does not meet the minimum requirements for subdivision in the "Non-Urban" zone. Counsel for the respondent, Mr Vize, made the following submissions: It is well established that the Chief Executive has the legal power to create a separate parcel: Colonial Sugar Refining Co Ltd v. The Valuer-General (1970) 37 CLLR 176; Raynbird v. The Valuer-General (1980) 7 QLCR 99. Mr McDonald, as the delegate for the Chief Executive, had considered the facts applicable to this case before coming to the conclusion that he should create a separate parcel and value it separately. In accordance with the provisions of section 34, the matters that he considered were these: Lot 173 had two substantial dwellings located thereon; the dwellings were capable of being occupied separately and were in fact occupied separately; they could lawfully be held under separate ownership by virtue of the family subdivision by- laws, and had actually received such approval, although that was not proceeded with. However, Mr McDonald had reasoned that it could have been. If a house had been -- 5 of 8 -- 6 built as the result of a family subdivision, that area would have been transferred and there would have been separate ownerships which required separate valuations. The fact that the house had been built as a manager's residence did not put it in a different legal situation as it was still capable of being held separately under the family subdivision by-laws. The declared parcel did not contravene those by-laws because the parcel was larger than the minimum area of 1500 square metres. The solicitor for the appellants, Mr Ryan, did not challenge the power of the Chief Executive to declare a separate parcel. However, he submitted that Mr McDonald as the delegate of the Chief Executive could not act capriciously or unreasonably, but had to satisfy himself that all the requirements of section 34(2) were complied with before he could value the parcel separately. On the facts of this case, he argued, the parcels cannot be lawfully held under separate ownership. The owners applied for a family subdivision and tried to comply with the various conditions, but were unable to do so. That approval was conditional. The conditions were not satisfied. The conditional approval has now lapsed because it had a 2-year limit and that period has expired. One of the conditions required that a survey plan be prepared, but that survey plan was never registered, so that condition was not complied with. It is not sufficient for the respondent to say that family subdivision could have been undertaken when it was not. There is evidence that the minimum subdivision area is 16 hectares and the option of family subdivision may no longer be available, even if the owners wanted to avail themselves of it. Therefore, the respondent has not properly exercised his discretion to create a separate parcel in accordance with the authorities on the matter. It seems to be common ground that in appropriate circumstances the respondent has the power to create a separate parcel. It has long been established that section 5 impliedly gave the Chief Executive the power to create parcels of land in appropriate circumstances. However, if the Chief Executive acted capriciously or unreasonably in creating a parcel, then this Court has the jurisdiction to find the resulting valuation ultra vires the Valuation of Land Act: Raynbird v. The Valuer- General (1980) 7 QLCR 99; Callow v. The Valuer-General (1983) 9 QLCR 38. A useful discussion of what is involved in this process appears in the decision of the Land Court in Colonial Sugar Refining Co Ltd v. The Valuer-General (1970) 37 CLLR 176. In that case, the following passage appears at 186/187: -- 6 of 8 -- 7 "There is, however, something further which needs to be said, involving a further consideration of some of the words in this controversial branch of the definition. These words are the remaining operative words of the definition and are, I think, the key words to the proper construction of this part of the definition. The words are, which the Valuer-General 'directs should be valued'. The verb 'should be valued' here is not an imperative and must not be interpreted as such. The tense is conditional and the words must be so read. This, to my mind, shows that the Legislature never intended to give the Valuer-General an absolute, arbitrary, or capricious power to direct as to the valuation of parts of an area of land in separate pieces or parcels, but to give him such power only after he has directed himself, as it were, on the facts applicable to any piece of land. The duties conferred on the Valuer-General by the Acts are essentially practical ones involving examination of all the facts relating to an area of land before deciding how it should be valued for the purposes of the Acts. If these facts satisfy him that part of such an area should be valued as a separate piece of land then he may so direct and that result follows. But if the facts do not support such a direction and the Valuer-General still values any part of an area of land as a separate piece of land then, in my view, his direction can be subjected to review and may be set aside. " I respectfully agree with the reasoning of the learned Member in that case. What that means is that before declaring a parcel in the present case, Mr McDonald, on behalf of the respondent, was required to examine the facts and circumstances in considering whether he should declare a separate parcel. In other words, he would not declare a separate parcel and then consider whether or not the requirements of section 34(2) had been fulfilled. He must, in my view, consider both sections concurrently. If all the requirements of section 34(2) have not been fulfilled, then he should not exercise his power to declare a separate parcel, because such a declaration will be without justification. There is no issue that two of the requirements of section 34(2) have been fulfilled. There are two houses on Lot 173. Both houses are capable of separate occupation. The contentious question is whether or not a 4,000 square metre block of land could be held in separate ownership to the balance of Lot 173. The argument for the respondent is that the evidence shows that the appellants could have obtained approval for a family subdivision if they had complied with all the conditions. A survey plan had been prepared indicating the area that could have been excised as a family subdivision. Later, a residence was constructed on that land. The respondent says it does not matter how the residence came to be constructed on that land, because that area could lawfully be held as a family subdivision. -- 7 of 8 -- 8 In my view, that argument must fail. There is no doubt that if the appellants had complied with the conditions for family subdivision, the family subdivision could have gone ahead and the land would have been transferred to Mrs Klibbe. A separate valuation would then have had to issue for the 4,000 square metre lot. However, that did not happen. It was only after that application had been withdrawn and further application made for a manager's residence that approval was given for construction of the residence. That residence exists because it is a lawful structure under the provisions of the Town Plan as a manager's residence. It does not exist as a lawful residence under the family subdivision provisions. Having constructed the residence, the appellants have since enquired as to whether they could lawfully subdivide a parcel of land containing the residence from the balance of Lot 173. The Council informed them that option is not available. The evidence did not establish whether that option is no longer available because of amendments to the Town Plan or whether the option is no longer available because the appellants have constructed a manager's residence. In my opinion, it does not matter either way. Under the provisions of the Town Plan, a manager's residence is considered to be ancillary to the principal use of the land. It would be contrary to town planning principles to consider that it could later be surveyed from the parent parcel and transferred so as to be held separately from the parent parcel. In my opinion, Mr McDonald has misdirected himself as to the true situation with regard to whether a parcel of 4,000 square metres could be held separately from the balance of Lot 173. In my view, it cannot be lawfully separately held. The residence exists there as a lawful manager's residence. The lawful manager's residence cannot be held separately from the parent parcel. Therefore, I am of the opinion that the respondent's action (through Mr McDonald) in declaring a separate parcel of land and valuing it separately, was ultra vires. The valuation appealed against is therefore a nullity. Accordingly, the appeal is allowed and the valuation appealed against is set aside. (JJ Trickett) President of the Land Court -- 8 of 8 --