Allan v Chief Executive, Department of Natural Resources [1997] QLC 372

-~ Re: Determination of unimproved value - Local Authority: Douglas V97-71 John S and E Allan v. LAND COURT BRISBANE 15 OCTOBER 1997 Chief Executive. Department of Natural Resources (Hearing at Mossman) DECISION John Sutherland Allan and Elaine Allen have appealed against the determination by the respondent Chief Executive of an unimproved value of $130,000 for land described as Lot 162 on Plan SR 180, Parish of Whyanbeel, County of Solander, containing an area of 2.175 ha. Lot 162 is a "Residential" zoned site situated on the Mossman-Daintree Road about 2 km south of the village of Wonga Beach and about 10 km north from the Township of Mossman. The respondent Chief Executive has valued the land as a rural residential homesite as at the relevant date of 1 January 1996. The appellants contend within the notice of appeal for an unimproved value of $30,000. Mr Allan furnished evidence in the matter. The principal thrust to the appellants' case is that the land should not have been valued as a rural residential homesite, but should have been valued under the provisions of s.17 of the Valuation of Land Act 1944 as land being used for the purposes of farming. In this respect, Ground 4 as contained within the notice of appeal reads: "The valuation has failed to take into account that the fact that the land is dominantly used for the purpose of farming which is to say apiculture - section 17 of the Valuation of Land Act." Now before considering the evidence in the case, I should say that the appellants, Allans, also appealed to this Court against the valuation of their land in the sum of $121,000 as at the earlier relevant date of 1 January 1995. Included in their grounds of appeal was a claim then that the land should have been valued on a concessional basis as land used for farming under s.17 of the Act. This case was heard by the learned President of this Court, and his decision is dated 10 September 1996, and for the reasons stated therein, the appeal was dismissed on the basis that the use of the land for apiculture was not at the relevant time the dominant use of the land (vide [1997] QLC 372 -- 1 of 4 -- 2 s.17(2) - definition of fanning). It was found by the President that the dominant use of the land was for rural residential purposes. Much of the appellants' evidence in this case was of a similar nature to that presented to the President. But Mr Allan claims to have an additional submission when he refers to a decision of this Court in Re: Rankin & Co v. The Valuer General (Ref: V77-93). More about that decision later. Mr Allan tendered to the Court his current Certificate of Registration as an apiary (Registered No. A220) which, he says, is issued in accordance with the Apiaries Act 1982. He also presented a receipt from the Department of Primary Industries dated 11 September 1997 for $30 which is for honey testing. Mr Allan told us that he has carried out bee-keeping in an apiary on the subject land for the last 30 years, and that his only source of income is from bee-keeping. He outlined the operation of his apiculture business, and it seems it varies but little from how it was described before and commented upon by the President. He keeps his working hives on land not owned by him in the Mt Molloy district. He uses a shed on the subject property for breeding queen bees in about 20 hives. The appellants' home is on the land, and apart from breeding queen bees, he does maintenance to hives, etc. on the site. Honey is extracted and sealed at Mt Molloy and brought to the subject land for storage before its sale - mainly in bulk to local customers. Mr Allan considers the apiculture business conducted on the subject land and in the Mt Molloy district would provide a net income of about $4,000 to $5,000 per annum, but he did not bring along to the Court any financial records to support this estimate. This is perhaps surprising as one of the tests to be applied when deciding whether land should be valued under s.17 of the Valuation of Land Act as land being used for the purpose of farming is that the business "has a significant and substantial purpose or character", and "is engaged in for the purpose of profit on a continuous and repetitive basis". Additionally, Ground 5 within the notice of appeal reads: "The valuation has failed to take account of the fact that the land has a significant and substantial commercial purpose that is, the conducting of the business of an apiary." Now without evidence as to the financial viability of the apiary, such as financial records over time, particularly during the relevant period around the date of valuation, it is difficult, if not impossible, for the appellants to carry the burden of proof placed upon them in accordance with s.56(2) of the Valuation of Land Act. Now the respondent Chief Executive called in evidence registered departmental valuer Ian Spencer Quirk-Anderson. The Chief Executive tendered a valuation document describing -- 2 of 4 -- 3 the nature of the subject land, its access, its zoning and basic sales evidence. It is not necessary for me to include here the details within his statement as consideration of it is not relevant to the outcome of this appeal. But Mr Quirk-Anderson does describe the use of the subject land as being for a rural residential homesite, with the appellants carrying out a small-scale apiculture operation on the property. However, Mr Quirk-Anderson concludes that the dominant use of the land is for a single-unit residence, as he says that the apiary activity is not of sufficient scale, and not possessed with a significant or substantial commercial purpose or character to warrant a concessional valuation under s.17(1) of the Act. Mr Quirk-Anderson does concede the land is being used for the industry of apiculture as the appellant is a registered bee-keeper, and also that the activities associated with the maintenance of beehives and collection of honey are being carried out on the property. Mr Quirk-Anderson says that the appellant has advised him that he is keeping 120 beehives in various locations in the Mt Molloy area, producing 1,000 litres of honey per annum, and as well is breeding queen bees for his own hives on the subject property. The advised gross income from this operation is $8,000 per annum retuning a confirmed net income of $4,000 per annum. In short, Mr Quirk-Anderson does not believe the apiary activity is significant or substantial enough to be considered for a concessional valuation under s.17 of the Act, but concedes that the apiary operation carried out on the property is engaged in profit, even though it is minor, on a repetitive basis. I have read the written decision by the former learned President of the Land Court, Mr Barry (he was then a Member), dated 18 November 1977 in Re: Rankin & Co v. The Valuer- General. In that case, the appellant company members were long-established cane farmers on a property situated in the Town of Newell to the north of the mouth of the Mossman River. The Court had before it for consideration and decision whether the use of a 1.047 ha parcel of land, which was severed by a road from the balance of the appellant's cane land, should have been valued as a rural homesite, or as land used for the business of primary production. No cane was grown on the parcel, but it was developed with two dwelling-houses (occupied by the owners) and had a large machinery shed which stored machinery used for the farming operations across the road. The learned Member took the view that the use of the land, in conjunction with the use of the land across the road, was such as to warrant it to be valued as being used for the business of primary production under what was then s.1 l(l)(vii) of the Valuation of Land Act since it was occupied and used by the operators of the farm as a whole. -- 3 of 4 -- 4 Now in the Rankin case, there was no mention in the decision about the viability of the cane farm as such. It was agreed that if it was to be found that s.11 (1 )(vii) applied, then the valuation of the land should be $30 - not a value of $25,000 as a site. In other words, the financial viability of the Rankin farm was not called into question nor apparently was it an issue in the case. Since the Rankin case, we have had new provisions in the Valuation of Land Act which include the test of the dominant use of the land. Should they have been in the Act at the time of Rankin, then the outcome may well have been different. But in any event, in this case, the subject land is not simply separated from the balance of a farm by a road - the appellants do not own other land in the area and conduct the business of apiculture mainly upon land owned by others. Now the evidence in this case is not sufficiently persuasive to convince me that I should depart from the finding of the learned President and his decision dated 10 September 1996, nor that I should find the provisions of s.17 of the Valuation of Land Act should apply to the valuation under appeal. Clearly the dominant use of the land is for rural residential purposes. Having come to this conclusion, it remains for me to consider the remaining grounds of appeal which read: "1. The valuation is excessive. 2. The valuation has been determined without reference to all proper valuation principles. 3. The valuation has failed to take account of the specific peculiarities of the subject property." Now apart from his criticism that the subject property does not have a telephone connected (Mr Quirk-Anderson says he should have said -in his valuation report that the telephone was available for connection), and some question of Mr Quirk-Anderson about what I consider a non-relevant issue about beach erosion (the subject land does not front the beach), no real attack was made on the respondent Chief Executive's method of valuation as a rural homesite, nor on the basis for it. Accordingly, I cannot find Grounds 1, 2 and 3 are proven. In the end result then, the appeal is disallowed, and the unimproved value of Lot 162 on Plan SR 180, Parish ofWhyanbeel, as determined by the respondent Chief Executive in the sum of One Hundred and Thirty Thousand Dollars ($130,000) is affirmed. CH CARTER MEMBER OF THE LAND COURT -- 4 of 4 --