Allan & Anor v The Valuer-General [1990] QLC 160

Re: Appeal against determination of Valuer-General - Douglas Shire Council. AV90-70. John S, Allan and Elaine Allan v. The Valuer-General DECISION (Hearing at Cairns) LAND COURT, BRISBANE 25th May, 1990 This appeal is against the determination of the Valuer-General of the unimproved value of Lot 162 on Plan SR 180 and Road License 4706, parish of Whyanbeel, containing 2.327 hectares in the sum of $130,000 for the purposes of the Annual Valuation of the Area as at 31st March, 1989. The appellants have valued the land at $60,000 having regard to determinations of value made by the Valuer-General in respect of a number of nearby lots. However, the principal argument of the appellants is that the land should be valued under the concessionary provisions of s. ll(l)(vii) of the Act. The subject lot is situated on the western side of the bitumen sealed Mossman-Daintree Road and about 10 kilometres from Mossman. There is no dispute that the land is above the road, that it rises moderately to steeply to the rear and is cut by a gully. Access from the road to the homesite is via a cutting and it is agreed that the site provides substantial coastal views. Electricity, telephone and town water are connected and a garbage collection service is provided. The land is zoned "Residential". It is developed with a single unit residence and has been valued by the Valuer-General [1990] QLC 160 -- 1 of 4 -- 2 as a residential site. Mr Allan says when he gave up commercial fishing some five years ago, he took up apiculture and has about 40 hives in all with four or so on the subject land and 38 at Mount Molloy. He is a registered beekeeper. He said that at present there is one tonne of honey stored in the carport on the subject land and one tonne at Mount Molloy. Sale proceeds from honey for the period from January to May this year amounted to $534.50. No accounts were produced to show income and expenditure over the years. Evidence was given on behalf of the Valuer-General by Mr R.C.L. Jarred, registered valuer in his employ. He admitted that he saw hives on the block and he did not dispute the evidence given on the matter by Mr Allan. His submission is that the sc_ale of the operation was not sufficient to invoke the provisions of the section. He relied heavily on information he obtained in articles published by the Australian Beekeepers' Association which are to the effect that the Association believes that 100 hives are necessary to constitute a viable business. The provisions of s. ll(l)(vii) provide an exception to the rule that land is to be valued for its highest and best use. In so far as the section is relevant to the subject land, the onus is on the appellants to prove that the land is exclusively used for purposes of the business of primary production (apiculture). This is not a function of the Valuer-General. It is in this area where Mr Allan's case falls to the ground. Under the test laid down by the Land Appeal Court in G.A, and B.H. Walker v. The Valuer-General (1978) 5 Q.L.C.R. p. 347, it is said that there must be continuity, diligence and repetitions of actions constituting the activity and, moreover, the operations must have some significant commercial purpose or character - a degree of substantiality or viability although not necessarily always profitable. Alternatively, the actions or operations in train at the date of valuation must be such that given favourable seasons and conditions they are of such magnitude that -- 2 of 4 -- 3 they will in the fullness of time by maturity or further activity reasonably be expected to develop into a viable venture. Previous to this statement, the Court said that the use of the word ''business" in the sub-section is meaningful and cannot be ignored - "H it were correct to ignore the word 'business', the protection would be extended to all lands exclusively used for some type of primary production, no matter how minor" (p. 354). At p. 357, the Court pointed out that the onus is on the appellants to establish to the Court, on hard evidence and not by generalities, that the business was either viable at the date of valuation or had prospects of viability, given favourable seasons and conditions. In the absence of some concrete evidence from Mr Allan on the viability of the activity, I must decline his invitation to apply the provisions of s. ll(l)(vii). The next matter goes to the value of the land as a residential site. Mr Jarred based the valuation on sales and he compared the subject land directly with three sales. The nearest of the sales is just to the north of the subject land, being Lot 1 on RP 729984, Whyanbeel, but the lot only has an area of 1000 square metres. This block sold in June 1988 for $60,000 and is valued at $59,000 for the purposes of the current Annual Valuation. The evidence of Mr Jarred is that the sale land is inferior to the subject land in topography and outlook and of course it is a much smaller block. The evidence demonstrated by this sale can be taken much closer to home by looking at the values applied by the Valuer-General to one adjoining block and one a little further to the south of the subject land which are also of areas of about 1000 square metres. The adjoining block of Jamieson is valued at $88,000 whereas McKay's block is valued at $59,000. Both blocks have sites with views comparable with that of the subject land but McKay's block was extensively filled. A sale of a larger sized block is found in the sale referred to by Mr Jarred at Wonga Beach. There, Lot 20 on RP 744773 containing 1.026 hectares sold for $185,000 in August 1988 in a cleared condition. In the -- 3 of 4 -- 4 comparison Mr Jarred said that the sale land which is easy sloping and low lying in parts has superior topography to the subject land but has an inferior aspect as the land fronts a timbered recreation reserve. In this evidence and in the evidence of the comparison blocks advanced by Mr Allan including the lots of Jamieson and McKay, it appears that the valuation applied to the subject land has the support of the market and that relativity in value is reasonable. Accordingly, the appeal is dismissed and the determination of the Valuer- General affirmed. (D.M. White) Member of the Land Court -- 4 of 4 --