Brabon v Chief Executive, Department of Lands [1996] QLC 33

LAND COURT BRISBANE 22 MARCH 1996 Re: Appeals against unimproved valuations - Valuation of Land Act 1944 - AV95-385 and Others Local Authority: Thuringowa R.W. Brabon v. Chief Executive, Department of Lands (Hearing at Townsville) D E C I S I O N Mr Roger William Brabon, through his solicitors, lodged appeals against the separate valuations issued by the chief executive for 47 notional lots situated near the mouth of Black River and Halifax Bay. When the matters were called on for hearing Mr J Baulch, Barrister, instructed by Wilson Ryan & Grose, Solicitors, appeared on behalf of the appellant. Mr BR O'Connor, Barrister and Principal Legal Officer, Department of Lands (as it was then) appeared for the respondent. At the outset, Mr Baulch advised the Court that, of the more extensive grounds of appeal as contained in the notices, it was proposed only to argue the question whether the valuations appealed against were authorised valuations in terms of the Valuation of Land Act 1944 (the Act). If it was held that they were, then the appellant accepted that the amount of the valuation in each case was appropriate. A statement of facts as agreed between the parties was tendered, containing the following: " STATEMENT OF AGREED FACTS 1.The Appellant is the owner of Portion 318, County of Elphinstone, Parish of Bohle containing an area of 200 acres and 3 roods being all of the land described in Certificate of Title N1302-002. The land is zoned for rural use and subdivision of the land is a prohibited use in that zone. 2.There are erected on the land some 47 detached dwelling houses each: a) capable of separate occupation; b) separately occupied; c)occupied by persons other than the Appellant pursuant to written or oral licences granted to those persons by the Appellant. [1996] QLC 33 -- 1 of 6 -- 2 The land, with the exception of the areas actually occupied by the 47 dwellings, is used by the Appellant for grazing purposes and has been so used for many years. 3.Where written, the licences are substantially in the form hereunto attached and marked 'A'. Where oral, the terms are substantially in accordance with the terms of the written document. 4.No separate Title Deeds have issued in respect of any of the 47 detached dwelling houses, nor has any survey been conducted or any subdivision of land embarked upon in respect of any part of Portion 318. 5.Electricity supply is available to each dwelling but no town water supply is available. A formed bitumen road in poor condition has been constructed between the houses (by the occupiers of the houses) which houses are positioned in two rows on the land as show in the document marked 'B' and attached hereto. 6.A gazetted esplanade separates Lot 318 from the highwater marked (sic) of the Pacific Ocean. 7.There has been no direction given by the Chief Executive (Department of Lands) in respect of the land pursuant to s.2 or s.34 or s.35 of the Valuation of Land Act 1994. The agreements between the owner of the land and the various occupants as referred to in clause 2(c) of the agreed facts provide that "the Licence may be terminated at any time by notice in writing to the Licensee". The Owner has no interests or rights in and to fixtures erected or acquired by the Licensees but if within six months of the termination of any Licence, the fixtures are not removed, the Owner may cause those fixtures to be removed or destroyed at the cost of the Licensees. It is the submission of the appellant that the Act permits valuations of the sites separately only if they can be described as separate parcels of land within the meaning of that expression in the Act. In s.2 "parcel of land" means 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. (emphasis added) It is then submitted that, as agreed, there was no direction given by the chief executive in respect of the land pursuant to s.2 of the Act. Accordingly, it is submitted, it then becomes necessary to consider whether or not the sites can be described as "separately held by any owner." It is argued that the sites are not "separately held by any owner" because an "owner" as defined in the Act cannot include a licensee. Section 7 of the Act provides (as far as the meaning is relevant here): (1)An "owner" of land is the person who - (a)is entitled to receive the rent for the land. -- 2 of 6 -- 3 (2) However, an owner does not include the State, but includes - (a)a registered proprietor of freehold land. There is no argument here that the chief executive did not have the power to exercise a discretion to direct that parts of the land be valued separately. There is also no argument that because of the terms of the agreement, such a direction was not made. That aspect of the agreement will be discussed later. Nor did the chief executive otherwise direct that, in terms of the agreement and s.34(1)(a) of the Act, there shall not be included in 1 valuation: "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." Nor did the chief executive otherwise direct in this matter in terms of the agreement and s.35(1)(a) of the Act that: "several parcels of land which are owned by the same person, but which are separately let to different person, shall be separately valued." It is the argument of the respondent chief executive, that s.35(1)(a) is the key provision upon which the separate valuations of the 47 lots is based. The chief executive is of the opinion that the lots are "parcels of land" in the first limb of the definition in s.2. The submission is that the word "held" is not synonymous with "owned" but more referable to the use to which the owner is placing the land. In Australian Estates Co Ltd v. The Valuer-General (1980-81) 7 QLCR 199, a matter where the Valuer-General had created and valued a number of parcels used for workers' dwellings on the Kalamia Estate (sugar mill complex) near Ayr, Mr Smith, the President of the Land Court at the time, had this to say at p.206: " I find myself in further agreement with Mr Dodd's reasonings in the C.S.R. v. The Valuer General supra where at p.184 he expresses the opinion that 'the word "held" as appearing in the first part of the definition of "a parcel of land" is not synonymous with "owned" but is merely and simply related to a question of fact in the sense of what the owner is doing with it (the land) as the owner". If, in fact, an owner is holding (using) any part of an area of land separately from any other part, whether he has subdivided it or not, then the part separately held (used) is a parcel." Except for the reference to the Valuer-General (now the chief executive) s.5 of the Act (at that time) provided a similar meaning of the words "parcel of land" as is relevant here. Gaining support from Mr Smith's comment, the respondent's argument is that it is not necessary to consider whether the chief executive had "created" separate parcels by the discretion allowed him in the second limb of the definition of "parcel of land" in s.2 - they were already so for the purpose of the Act. -- 3 of 6 -- 4 The respondent contends that the 47 lots are "let" to different persons and that the meaning of the word "let" is wide enough to cover "permissive occupancy", again gaining support from the decision in Australian Estates where at pp.209-210 Mr Smith said: "In my opinion the use of the term 'let' in this sub-section is sufficiently wide to cover the conditions under which each mill employee was permitted to occupy the respective houses. I cannot regard 'let' as necessarily implying a leasing arrangement or the payment of a fixed sum as rent. The term has connotations of a license. It appears to be used in the Valuation of Land Act as meaning something other than leasing vide the references to 'lease' and 'let' in section 14. In the case of Russia Lutvey and Sons Pty. Ltd. v. The Valuer-General, a judgment handed down on 20th February, 1980, and not yet reported, I found that the term 'let' was wide enough to cover 'permissive occupancy'." In reply, the appellant's submission was that for the first limb of the definition of "parcel of land" to apply, it cannot be ignored that the words "separately held" are qualified by the further words "by any owner". The appellant is the one owner, and it was seen as artificial to suggest that the appellant separately holds any part - for, in reality, he holds the whole of the land involved as part of one title. "There's been no subdivision or anything of that nature. It would be highly artificial" it was submitted "to say that because there are licences, terminable at a moment's notice in respect of some portions of it that he separately holds any interest ...". The appellant relies on the second limb of the definition in s.2 and does not contest the power of the chief executive to create separate parcels, but it must be by a direction, which both parties agree was not given. It seems that this agreement has been reached on the basis that both counsel feel the direction would need to be in writing or at least there would need to be some evidence to prove that a direction was given. I accept, if that was intended to be the effect of the agreement, that no direction, in that sense, was given. However, while it will be seen a point unnecessary to decide, I am concerned that such proof should be considered necessary, and feel obliged to comment. Section 13 of the Act provides: "The chief executive must decide the unimproved value of the land to be valued for the Act under which local authorities are established." It is logical that the chief executive could not involve himself in the physical activity of deciding unimproved value of all, if any, land throughout the State. However, this matter is not concerned with other than interpretation of the legislation and its effect, as it was intended. I hold the opinion that where a direction by the chief executive is required under the Act, that should be interpreted to the effect that he directs or instructs himself. The Land Appeal Court in RM & AJ Beanland v. The Valuer-General (1990-91) 13 QLCR 113 agreed that it was well established that the Land Court and the Land Appeal Court are competent to review the exercise of a discretion vested in the Valuer-General (as he was then) under the Act. Such a review is specifically not sought here. However, it is seen as relevant that in Beanland at p.120 the Court -- 4 of 6 -- 5 agreed in general with the observation of Mr Dodds in Colonial Sugar Refining Co. Ltd. v. The Valuer-General (1970) 37 CLLR 176 at p.187 that the predecessor of s.14 (which in turn was the predecessor of s.34 now): "...give(s) 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." (emphasis added) Also in Beanland the Court considered the effect of the words "unless the Valuer-General otherwise directs" (emphasis added) and referred to the comments of Stable J in Reinke v. Banana Shire Council (1968) Qd.R. 453 (F.C.) at p.458: "I make brief mention of one facet of the arguments addressed to us upon sec. 15 - both counsel agreed that sec. 14 has nothing to do with the matter. There are four subdivisions let to separate persons, so it would appear that they should be separately valued and not treated as one parcel. But the section begins with the words 'Unless the Valuer-General otherwise directs ''. It was argued on the one hand that these words mean that he may direct himself, as does a judge, and on the other hand that they mean direct in the sense of issuing a direction to a valuer of his staff who is to go out and do the physical work of making the valuation. But if this latter be so then in the very act of directing a valuer of his staff the Valuer-General would be directing himself, for it would mean that he had already decided that the valuation was to be made on a particular basis. I am not unmindful of the fact that sec. 13 uses such phrases as 'The Valuer-General is of opinion' and 'The Valuer-General considers'. I am also not unmindful of the fact that where ordering something to be done is contemplated the Acts use the phrase 'The Valuer-General may cause' a valuation roll to be prepared in a certain manner - sec. 17(1). All things considered, I conclude that in sec. 15 the words 'Unless the Valuer-General otherwise directs' are equivalent to 'Unless the Valuer General otherwise rules'. This being so, he was acting within his powers in the matter complained of in the present case." In my opinion the fact that the valuations appealed against were issued, suggests that the second limb of the meaning of "parcel of land" (had it been necessary to so direct) should be interpreted in this case to the effect that the chief executive had directed that the separate lots be created. What was capable of challenge was whether that discretion was exercised capriciously or unreasonably. If I am wrong in that interpretation, I am persuaded that, in any event, the 47 lots were "separately held" by the appellant, on the arguments put forward for the respondent. The fact -- 5 of 6 -- 6 that the appellant held the whole of the land of which the 47 lots formed part does not mean, in my opinion, that for the purposes of the Act, the appellant did not separately hold those parts of the overall land which were used separately by others. Artificial as it may seem to the appellant, the fact that the land has not been subdivided by survey, does not lessen the effect of the meaning of "parcel of land" in s.2 of the Act. It is observed that in the licence agreement, a distinct differentiation was made between the whole of the land owned by the appellant (termed "the said land") and those parts of that land on which the fixtures owned by the licensees were erected (termed "the subject land"). The use of the 47 sites for fixtures including "holiday dwellings" owned by licensees and then the making of the agreements between the owner of those 47 sites and the licensees are the facts which created the 47 lots in terms of the Act, in the first place. I agree then with the respondent's argument that s.35(1) should be interpreted in the way it has been by the chief executive. In my view, the meaning of "separately let" to different persons is not offensive to the facts in the subject matters. While "let" is capable of association in meaning with "lease" and the subject lands in these matters are clearly not leased, I do not accept that s.35(1) should be interpreted for the purposes of the Act, so narrowly as to be exclusively associated with the word "lease", in the singular and plural senses that might be argued to be the intent in s.34(1)(a). One meaning of "let" in the shorter Oxford Dictionary is "a letting for hire or rent". In this matter, that meaning could be seen to be relevant, when, in the same dictionary meanings of "hire" include "payment contracted to be made for the temporary use of anything" and "to grant the temporary use of for stipulated payment". It is observed that the owner in terms of the licence agreements (cl 3) is entitled to receive a stipulated sum for each calendar year, during which the licence remains in existence. In addition the licensee is required to "pay to the owner on demand all the rates assessed other levies or assessments connected with the fixtures on the said land on the occupation thereof after the date thereof by the Thuringowa City Council or other municipal authority in respect to the subject land and the said fixtures, so long as the said fixtures shall remain on the subject land and whether or not the rights and obligations of the licensee under these presents have terminated." (emphasis added) I have not been persuaded that the separate valuations are ultra vires the Valuation of Land Act, for any reason. Each of the appeals is therefore dismissed. RE WENCK MEMBER OF THE LAND COURT -- 6 of 6 --