Butler v Minister for Lands [1995] QLC 56

LAND COURT BRISBANE 21 JULY 1995 Re: Determination of the Unimproved Value for conversion purposes - Special Lease No. 10/48676, Charleville District Lessees: Jeffrey B and Carol E Butler (Hearing at Charleville) D E C I S I O N The abovementioned lessees made application to the Minister for Lands for Special Lease No. 10/48676 to be converted to fee simple under the provisions of section 207 of the Land Act 1962. The Department of Lands has used 6 June 1993 as the relevant date as at which the unimproved value of the land is to be determined. In accordance with the provisions of section 207(3) the lessees have requested that this matter be referred to the Land Court for hearing and determination. Special Lease No. 10/48676, Charleville District, is in respect of land described as Lot 129 on Plan OR800177, Parish of Charleville, containing an area of 13.02 hectares. It is situated approximately 2 kilometres north-east of the Charleville Post Office on Wellwater Road, which is a bitumen strip with no kerbing or channelling. Electricity, telephone and reticulated town water are available to the property. The land is zoned "Rural B" under the Murweh Shire Council town planning scheme. It is used for rural residential purposes. The report and valuation tendered by the Crown describes the land as level to gently sloping forest country, timbered with mulga, box, false sandalwood, etc., with red sandy loam soils. The south-east corner of the allotment is intersected by Bradleys Gully. Mr JB Butler, one of the lessees, appeared and gave evidence on their behalf. He stated that the lessees purchased the Special Lease on 11 September 1990 for $20,000, a price which they consider to be far too high. They paid this price because they were desperate to leave the land where they were living, following the April 1990 floods and a continual battle with a large transport company which had moved next door and was working all hours. Mr Butler said it was the lessees' intention at the time of purchasing the land to freehold it as soon as possible. At the time they were told by neighbouring owners that they had freeholded similar allotments for about $10,000 each. Mr Butler said that on 21 November 1990 the lessees applied for a road closure which, they were told, was a necessary preliminary step to the freeholding of the [1995] QLC 56 -- 1 of 3 -- 2 Special Lease. Mr Butler feels that an application for conversion purposes was also lodged with the Lands Department at about that time. He explained that the procedure for closure of the road was a long process during which the Murweh Shire Council objected to the closure. However, after clarification of the matter the objection was withdrawn. Mr Butler said that he held many discussions with various Lands Department officers who denied all knowledge of a previous application to freehold the land. Accordingly, a fresh application was lodged on 6 June 1993. On 21 September 1993 the lessees were offered the additional area following the closure of the road. Then on 18 October 1994 the lessees were advised of the Minister's determination of the unimproved value of the subject land for purposes of conversion of $17,000. The lessees considered that this figure was far too high and requested that the matter be referred to the Land Court for hearing and determination. Mr Butler explained that the whole matter had been a long drawn-out process. The lessees felt that if the application to freehold had proceeded in 1990 or even 1991, as was the original intention, the freeholding value would have been much lower than the present offer of $17,000. The valuation under the Valuation of Land Act in 1990 was $8,500. Evidence for the Crown was given by Mr DP Devine, a registered valuer employed by the Department of Lands. Mr Devine arrived at his figure of $17,000 for the purposes of conversion of tenure as at 6 June 1993 by direct comparison with sales of three properties in the Town of Charleville. Mr Devine's Sales 1 and 2 are of properties of 2.028 hectares and 2.024 hectares, zoned "Rural B", which sold in December 1992 and August 1993 respectively for sale prices of $10,000 in each case. These two sale properties are situated side by side in a rural residential subdivision on the western side of the Warrego River in gravel formed streets accessed by the bitumen sealed Page Street from the Charleville/Quilpie Road. Mr Devine considers that each of these sales is inferior to the subject land, not only because they are smaller and were subject to flooding in 1990, but because they are cut off by the Warrego River from the Town of Charleville each time the river floods. He considers that the subject land is superior because it is situated in an area which is flood free and which has direct access to the town. Mr Devine's Sale No. 3 is of a property of 1.053 hectares, zoned "Rural B", which sold in December 1992 for $10,000. This property is situated on the Warrego Highway, not far from the subject land. Mr Devine considers that this property is inferior to the subject land because it is smaller, is situated on a busy highway and is not as attractive as the subject property. In this case the lessees' argument is concerned mainly with the date as at which the valuation should be made. Their whole case was based mainly on the fact that if -- 2 of 3 -- 3 the matter had proceeded soon after their purchase in 1990, they could have freeholded the land for a figure much less than $17,000. Mr Butler gave sworn evidence that he believes that the lessees lodged an application for conversion of tenure soon after they purchased the land. However, the evidence from the Department, through Mr Devine, is that the only conversion application in its records is that dated 6 June 1993. The provisions of section 207D(1)(a) of the Land Act 1962 make it quite clear that the unimproved value for conversion purposes is to be determined at the day the Minister received the application. Despite Mr Butler's belief that there was an earlier application, the only evidence before the Court is a copy of the application signed by Mr and Mrs Butler dated 6 June 1993. Therefore, the matter to be determined by this Court is in respect of that application. The Court has no power to search departmental records or to undertake an investigation to see if there was a previous application. In the circumstances, therefore, the only application that can be dealt with on this occasion is that made on 6 June 1993. Mr Butler was unable to assist me with evidence of sales at or near this date. On the other hand, there is the evidence from Mr Devine, a registered valuer, that by comparison with sales of admittedly inferior land he has arrived at the conclusion that the valuation for conversion purposes should be $17,000. While the sales are by no means ideal, they do indicate the price that inferior land was selling for in late 1992 and mid 1993. The subject land is considerably larger, it is also flood free and situated in an area which has access to the Town of Charleville even in flood conditions. It is situated on a bitumen strip road, but not on a busy highway. In the circumstances, the only evidence of value and comparisons that I have before me is that of Mr Devine. As I have found that the valuation should be assessed as at June 1993, I must accept Mr Devine's evidence and determine the valuation at $17,000. Accordingly, the unimproved value of the subject land for the purposes of conversion of tenure is determined at Seventeen Thousand Dollars ($17,000). (JJ Trickett) MEMBER OF THE LAND COURT -- 3 of 3 --