Appleton v The Valuer-General [1992] QLC 279

Re: Appeal against determination of Valuer-General - Logan City Council. AV91-900. Richard Doug las Appleton v. The Valuer-General DECISION LAND COURT, BRISBANE 11th March, 1992 The appellant is the owner of Lots 1 and 2 on RP 223992, parish Mackenzie, containing an area of 11. 75 hectares. The land is situated at 120 School Road, Waterford West. Lot 1 is a rectangular shaped parcel of 2 hectares. Lot 2 is a hatchet shaped lot which is situated to the rear of Lot 1 with the access strip along the eastern boundary of that lot. There are no structural improvements on the land other than fencing and dams and a shed used for sheltering an aircraft. Part of the area is cleared. For the purposes of the Annual Valuation of the Area as at 31st March, 1990, the Valuer-General determined the unimproved value of the land at $140,000 for its highest and best use as two sites. The appellant brings the appeal on a number of grounds but mai'nly on the ground that the land should be valued as land exclusively used for purposes of the business of primary production. It is submitted in the alternative that as two sites the applied value is excessive. In the report and valuation written by Mr I.G. Savage, registered valuer, who wrote the valuation on behalf of the Valuer-General the land is described as having a gentle fall to the north for about 460 metres from the road and then rising with an easy [1992] QLC 279 -- 1 of 4 -- 2 slope to the rear. In the defined flood map of the area a small portion of Lot 2 in the north-west corner (at the rear) is above the flood level whilst in respect of Lot 1 there appears to be only a small area on the road frontage in the south-eastern corner which is free of flood. The land is put to the following uses - (1) for the grazing of cattle owned by a member of the family (Mr S.K. Appleton) for which the appellant receives agistment fees of around $1200 to $1500 per annum; and (2) by the appellant for the parking of an aircraft which is used by himself and by the co-owner of the aircraft. The strip serving the aircraft is partly on this land (Lot 2) and on land owned by a neighbour. It is accepted that the primary production business of Mr S. K. Appleton is one meeting the criteria required to satisfy the provisions of s. 11 (1)(vii) of the Act but he does not have exclusive use of the land - the appellant uses it for parking an aircraft which for him is used to get to St. George where he has acquired an interest in a grazing property which was purchased in June 1991 subsequent to the date of valuation. The aircraft is jointly owned. The co-owner uses the aircraft for the purposes of his business (selling tyres and batteries) which is not one of primary production. The submission of Mr Savage is that s. 11 (1 )(vii) has no application with the consequence that the land must be valued for its highest and best use. Section 11 (1)(vii) provides that where land is exclusively used for purposes of the business of primary production "any enhancement in that value for that the land has been subdivided by survey or has a potential use for industrial, subdivisional or any other purposes shall be disregarded .... ". In W.H. Bowden v. The Valuer-General (1980-81) 7 Q.L.C.R. 138, the Land Appeal Court held that the -- 2 of 4 -- 3 word "exclusively" in the section - confines the use of the property to the purpose stipulated (the business of primary production) and prevents any use of it (the property) for any purpose, however minor in importance, which is collateral or independent as distinguished from incidental to the stipulated use" - Randwick Corporation v. Rutledge 102 C.L.R. 54 - Wyndeyer J. at p. 94. In B.B. Smith v. The Valuer-General (1983) 9 Q.L.C.R. 22, the then President of the Court said at p. 26 - It seems to me that the following are appropriate questions when considering whether the primary production concessions of section 11(1)(vii) are applicable:- 1. How is the subject land being used? 2. If lawfully for a bona fide purpose of primary production - (a) is the use an exclusive one within the meaning of 'exclusive' as referred to by the Land Appeal Court in Bowden's case (1980-81) 7 Q.L.C.R. 138 at p. 141? and (b) does the use amount to a business within the meaning of the Walker case (1978) 5 Q.L.C.R. 347 having due regard, for purposes of scale, not only to the activities carried out on the subject land but to the totality of the operation including activities on land worked in conjunction with the subject land and used for the same business?" These cases and others such as Burey v. The Valuer-General (1983) 9 Q.L.C.R. 138 and John v. The Valuer-General (1988-89) 12 Q.L.C.R. 219 make it abundantly clear that the words "exclusively used" are to be given the meaning adopted by the Land Appeal Court. The evidence in this case is that neither the appellant nor Mr S. K. Appleton who agists the property has the exclusive use of it. Exclusivity is also broken by the use made of the property by the co-owner of the aircraft for ., purposes which are not related to the business of primary production. In the circumstances I find that s. 11 (1 )(vii) has no application and that the land must be valued for its highest and best use. It is not in dispute that the land is low lying and subject to flooding. It is for this reason that Mr Appleton believes that the lots, if valued as two lots, would not realise the sum of the valuation applied by the Valuer-General. However, no -- 3 of 4 -- 4 evidence of ·any weight was advanced which would tip the balances in favour of such a finding. Accordingly I find that the appellant has failed to discharge the onus of proving that the applied value is excessive. The appeal is therefore dismissed and the determination of the Valuer- General is affirmed. D. M. White Acting President of the Land Court -- 4 of 4 --