Cooper v Minister for Lands [1994] QLC 14

LAND COURT BRISBANE. 20TH MAY, 1994 Re: Determination of second period rent - SL09/52128 Lessees: RL & D Cooper D E C I S I O N The Crown seeks a second period rent of $675 per annum (3% of an unimproved capital value of $22,500) for SL09/52128 Cairns District which lease is more particularly described as Lot 8 on Plan HG836166 Parish of Western containing an area of about 9.61 hectares. The second eighteen month period of the lease commenced on 1 January, 1992. The leased land is situated about 24 kilometres north of Herberton and about 43 kilometres south of Atherton in an area locally known as Upper Walsh River. Mrs Doris Cooper furnished evidence in support of the lessees' estimate of a rent of $500 per annum which is the rent assessed for the first period of the lease. Mrs Cooper came to the Upper Walsh River area about ten years ago when all the leases in the area were mining leases. There are about twenty or twenty five lots in a subdivision prepared in 1983 by the Land Administration Commission of which the subject land is one. There are only two special leases in the proposed estate, of which the subject special lease is again one. Mrs Cooper told us that when the subject special lease issued (on 1 October, 1991) the value of the land jumped from $2,500 to what is now assessed by the Crown at $22,500. She regards this latter value to be excessive and says that the Upper Walsh area is accessed by an ungazetted road which was totally washed away by Cyclone Troy. For six weeks the road was untrafficable and the residents of the area had to pay for a bulldozer to fix up the road, which in normal times is very rough and with four unbridged gullies. Mrs Cooper says that the Mareeba Local Government has no plan to gazette and maintain the road. There are a lot of people living in the area. Apart from the two special [1994] QLC 14 -- 1 of 4 -- 2 leases, nine blocks are occupied as a result of permits to occupy and nine blocks are occupied by squatters. Two further blocks are apparently unoccupied. Mrs Cooper points out that the squatters do not pay rates to the Mareeba Local Government and they want to secure some form of title and tenure to their land but efforts to do so have so far been fruitless. Mrs Cooper told us that the Land Administration Commission had planned a sale of the rural residential estate in 1993 but nothing materialised. She feels that the lessees of the subject lease have been singled out for separate rental treatment only because they have a special lease. She would like to see the whole mess sorted out and regularised with access being gazetted. The Crown assessment was made by registered Departmental valuer William Brett Bowen who describes the nature of the land as comprising sloping to undulating country intersected by gullies with the Walsh River within forty metres of the northern boundary. Mr Bowen confirms that access to the lease is poor with the last four kilometres of the Upper Walsh River Road being rough. He says access is mainly all weather but describes the road as becoming hazardous due to bogging and corrugations. Mr Bowen has valued the land as a rural residential site (zoned Rural A) at $22,500 mainly on the basis of two sales of rural residential sites, details of which are - Sale No.1 -MHPL3349 - 32.37 hectares - site sold on 27 July, 1990 for $25,000 - situation 7 km west from the subject lease. Mr Bowen says that the subject land has similar type of country, water supply and situation as sale No. 1 but has inferior access and is smaller. Overall he sees the subject lease as being inferior to sale No. 1. Sale No.2 -Lot 2 on Plan 847017 Parish of Woomunda - 7.191 hectares - site sold on 25 November, 1992 for $22,000 - situation 65 km south of the subject lease. Mr Bowen considers that the subject lease is a superior site to this sale lot as it has a superior situation and river frontage, this notwithstanding the poor access to the subject land. -- 2 of 4 -- 3 Mr Bowen has assessed the rent on the basis of 3% of the unimproved capital value in the absence of evidence of comparable rents for special leases. Mr Bowen informed the Court that the subject area has a long history of unresolved ad hoc development. A special team had been set up, including himself, to try and resolve the problem of settlement in the area. He says that in the late 1970's and early 1980's the locality became popular for camping on the Walsh River foreshores with the resultant ad hoc development of the area and a serious attempt was made to regularise the area during 1983. The overlying tenures in the area were occupation licences which will have to be terminated and reissued. There is also the problem of the ungazetted road to be addressed. Political intervention also created uncertainty. A plan was put to the Mareeba Local Government in 1993 which included provision for the dedication of the access road. Then came the implications of the High Court Judgment on 3 June, 1992 in Mabo (Mabo & Others v. The State of Queensland (1992) 175 CLR p1) and the Federal Native Title Act and the proposal remains in limbo since now a land tenure history investigation has to be undertaken. This of course is a post rent period event since the Native Title Act of 1993 was not assented to until 24 December, 1993. Mr Bowen stated in evidence that no allowance has been made in his valuation for the non-gazetted road to the subject land. He is not sure that the market would make any difference to the fact of non-gazettal but is confident a prudent person making specific enquiries would make some allowance for the non-gazettal of the road. Mr Bowen is unsure whether road access to his sale properties is gazetted. Mr Bowen has included some further sales which he considers support his valuation and also refers to the 1992 annual valuation of the subject lease for the Mareeba Local Government in the sum of $22,500. Although the commencement date of the second period of the subject lease (1 January, 1992) is after the promulgation of the Lands Legislation Amendment Act of 1991, the provisions of the repealed section 204 of the Land Act of 1962 still apply to the assessment of rent in this case since section 204(A) of the Lands Legislation Amendment Act of 1991 provides that new annual rental periods are to commence on -- 3 of 4 -- 4 1 July, 1993 when the period during which the rent is to be determined terminates. The repealed section 204(5B)(c) of the provisions of the Land Act of 1962 read - "The Court shall determine the annual rent at such sum as it considers an experienced and bona fide person would be willing to pay as annual rent for the land comprised in the lease during the rental period in question, having regard to the use to which the land may be put in accordance with the purpose for which the lease was granted and under the terms and conditions of the lease." Now I am confident that any properly informed and experienced bona fide lessee, or for that matter purchaser of land, recognising that the access road to the subject area is not gazetted or maintained by Council, would take into account when considering the level of rent he/she is prepared to pay or the price he/she is prepared to pay for land, the fact that the access road is ungazetted. Notwithstanding that Mr Bowen is unsure as to whether his basic sales evidence sites were accessed by gazetted or ungazetted roads, I propose to make allowance for this factor in my determination of rent. As aforementioned, it seems that the effect of the Mabo decision leading up to the promulgation of the Federal Native Title Act was really a post rental period event although it is to be noted that the decision of the High Court was brought down just prior to the expiry of the rental period in question on 30 June, 1993. By then the period had almost totally expired and almost certainly what we know now as the ramifications of the Mabo judgment would not have been apparent to a lessee at that time. In all the circumstances, I find that the assumed experienced bona fide person would not be prepared to pay rent at more than the rent which was determined for the first period of the lease in the sum of $500 per annum, and the second period rent for SL09/52128 is determined accordingly. Member of the Land Court -- 4 of 4 --