Anson Holdings Pty Ltd v Chief Executive, Department of Lands [1994] QLC 17

LAND COURT BRISBANE 20th May, 1994 Re: Appeal against a categorisation under the provisions of the Land Act of 1962 - Valuation No 6385/10000 - Mareeba Local Government - Reference: VC94-124. Anson Holdings Pty Ltd v. Chief Executive, Department of Lands D E C I S I O N (Hearing at Mareeba) Anson Holdings Pty Ltd has appealed against the decision of the Chief Executive, Department of Lands, to include its leased land which is situated on the Peninsula Development Road about 5 kms south of the small township of Mt Molloy in North Queensland within Category 3 for rental purposes. The appellant company, through George Quaid Junior, who is its Secretary/Director, asks the Court as per the Notice of Appeal to find that the leased land falls to be included within Category 1 for rental assessment purposes. The lease is more particularly described as SL09/44552, being Lot 252 on Plan D.A. 364, parish of Garioch, county of Nares, and contains an area of 48.8 ha. The stated purpose of the lease, which issued for 30 years as and from 1st October, 1981, is for Manufacturing, Industrial, Residential or Business purposes. The date of issue of the Categorisation Notice was 1st July, 1993. The Land Amendment Regulation (No 1) of 1993 provides:- "(1)A lease that may be used, and is used, solely for Residential purposes is a Category 3 lease. (2)A lease that would otherwise be a Category 1 lease or a Category 2 lease is a Category 3 lease if - (a)it is located close to a city, township or closer settled area; and (b)a dwelling house is, or under the lease, could be, erected on it; and (c)its market value would be based on its value as land able to be used for Residential purposes." The Regulation also provides - [1994] QLC 17 -- 1 of 4 -- 2 " (1)A lease is a Category 1 lease if its primary use may be, and is, grazing or broad hectare agriculture and (2)A lease for grazing purposes over a State Forest on a reserve is a Category 1 lease. " Sub-section 2 is not relevant in this case. Mr Quaid Jnr furnished evidence in the matter. He informed the Court that his company excised the subject lease, with Crown consent, from Mt Molloy Pastoral Holding prior to its disposal of that holding about 15 years ago, and that the lease was retained solely for the protection of the company's Yalkula airstrip northern approach path since, he says, it would be imprudent to allow habitation of the land because it is situated at the end of the airstrip. Mr Quaid told us that no buildings of any kind are on or planned for the land. The airstrip, which is about 70 metres wide, extends to and crosses the southern boundary of the lease near the western boundary so that part of it is on the leased land. Mr Quaid informed the Court that the only use of the airstrip is for agricultural purposes, for example, fertiliser spraying and crop spraying, and contends that the lease is used as an integral part of the cattle grazing operation of Anson Holdings Pty Ltd on the adjoining Southedge and Fonthill Holdings. Mr Quaid submitted that because neither the Mareeba Local Government nor the Civil Aviation Authority recognises Yalkula as a commercial airport, and accordingly have no official ban on residential land under the approach zone to the airstrip, then the Department of Lands is sustaining a Category 3 classification on technical rather than on practical grounds. Because of this Mr Quaid seeks to have the categorisation of the lease changed to Category 1 - "Grazing and Agriculture". Mr Quaid describes the Yalkula landing strip to be in a very difficult area to access by air with a lot of cross winds and he believes it would be unwise to erect structures such as a dwelling house on the lease to the east of the approach path. Further he says he has knowledge that in the 1990s local governments do not make the mistake any more of allowing homes to be built under flight paths of airstrips. The Crown recommendation as to categorisation was made by Registered Departmental Valuer, William Brett Bowen, who pointed out that the land is zoned "Rural A" under the provisions of the Mareeba Local Government Town Planning Scheme and the Town Planner says that there is no restriction on the construction of a residence on the subject lease under the Scheme. For this reason, and that the land is in close proximity to the township of Mt Molloy where there is demand for rural residential sites, Mr Bowen has included the lease in Category 3 - "Residential and Rural Residential" - as prescribed for the purposes of Section 204B(4)(b) of the Land Act of 1962. -- 2 of 4 -- 3 Mr Bowen is of the opinion that since the southern boundary of the lease is about 500 metres wide then there would be plenty of room to the east of the airstrip approach path and towards the Peninsula Development Road frontage to build a residence. Mr Bowen points out that the purpose for which the lease was granted was not restricted, but he says if the lease was to be renewed today, then Crown policy is to issue leases which provide more for users' specific needs. In that case if he was to make a categorisation report on a new lease, then he would see two options. One would be to issue the lease for grazing purposes with no structural improvements allowed other than those which are already on the land, possibly with the condition inserted permitting the use of the land as a flight path - and in that case the lease would be placed in Category 1. Mr Bowen says the other option would be to make the purpose "Business - Airstrip" and in that case it would be placed in Category 4 - "Commercial and Industrial Use". However on equity grounds Mr Bowen says there would be a strong case to "go with the grazing categorisation". But as to how a new lease is to be categorised really begs the question before the Court. It is an existing open-ended purpose lease which falls for categorisation. Mr Bowen is in agreement with Mr Quaid in that the lease is used for Grazing purposes in conjunction with a large grazing aggregation. It was Mr Max Bhudan who is a town planner in the employ of the Mareeba Local Government who informed Mr Bowen that under the existing Town Plan, a residence could be constructed on the subject lease. Mr Bhudan also said that the surface obstacle limitations in respect of the airstrip would not apply in these particular circumstances. But of course, as Mr Bowen quite fairly points out, the recommendation of Mr Bhudan would not necessarily be followed by the Mareeba Local Government but he feels it would be guided by Mr Bhudan's opinion. Mr Bowen informed the Court that he also had regard to internal policies within the Department of Lands when deciding to include the subject land within Category 3. He included within his tendered report copies of a Policy - Lands Valuations Program - Valuation of Special Leases for Grazing Purposes, and a Policy - Land Use Program - Special Leases - Grazing Only Categorisation Permission to construct a dwelling. But the Court cannot in general terms be led to any specific conclusions based on internal policy and in any event the documents appear to relate to Special Leases for Grazing Purposes. This is a somewhat difficult matter. On the one hand there is support for Mr Bowen's view that the land should be included in Category 3 because of the demand for rural residential sites in and around the township of Mt Molloy. But on the other, it -- 3 of 4 -- 4 is clear, and it is agreed, that the use of the leased land is as part of a grazing business which is a use which accords with the purpose for which the lease was granted. I am inclined to favour a view that for the relevant rental period, and for that matter for subsequent periods, while the lease is held by Anson Holdings Pty Ltd and continues to be used for the purpose for which it was originally leased (i.e. for control of the use of the Yalkula airstrip) and providing no dwelling house is erected upon the land, then it should be included in Category 1 as its primary use is for grazing. I determine the categorisation of SL09/44552 accordingly. (C.H. Carter) Member of the Land Court -- 4 of 4 --