Land Court Citation
LAND COURT OF QUEENSLAND CITATION: Hewett v Chief Executive, Department of Natural Resources and Water [2009] QLC 0154
PARTIES: Prudence M Hewett (appellant) v. Chief Executive, Department of Natural Resources and Water (respondent)
FILE Nos.: VLA024-09 (formerly AV2009/0024) VLA025-09 (formerly RV2009/0025)
DIVISION: Land Court of Queensland
PROCEEDING: Appeal against an annual valuations of land under the Valuation of Land Act 1944
DELIVERED ON: 23 October 2009 DELIVERED AT: Brisbane
HEARD AT: Cairns
MEMBER Mr RS Jones
ORDER: The appeals are dismissed.
CATCHWORDS: s.17(2) Valuation of Land Act 1944 – dominant use of land – dominant use of land eco-tourism not farming – statutory construction.
APPEARANCES: Mr N Hewett, for the appellant. Mr G Smith, Principal Lawyer, Department of Natural Resources and Water, for the respondent.
Background:
[1] Mrs Hewett, the appellant, has appealed against the assessment of the unimproved values attributed to her land by the respondent the Chief Executive, Department of Natural Resources and Water.
[2] The appellant is the owner of land located in the Diwan locality north of Cairns. The land is made up of two components: Lot 52 on Plan SR537 and Lot 1, Road Licence 6994 both in the Parish of Alexandra, Country of Solander. Lot 52 comprises an area of 66.742 ha and Lot 1 an area of 2 ha. Notwithstanding the fact that there are two separate parcels of land the appeals were essentially conducted on the basis that one entire parcel of land was in issue.
[3] The land is located approximately 50 km north of Mossman and 130 km north of the city of Cairns. Of real significance in this appeal is that the land is located within the internationally known Wet Tropics World Heritage Area (WTWHA). The unimproved value determined by the respondent as at 1 October 2007 for Lot 52 and Lot 1 is $460,000 and $13,800 respectively. The appellant’s estimates are $73,000 and $2,200 respectively. The primary reason for the significant difference between the two parties hinges on whether the dominant use to which the land was being put as at the date of valuation was farming, as was contended for by the appellant, or eco-tourism as was contended for by the respondent.
[4] In appeals such as this the valuation appealed against has the benefit of a statutory presumption of correctness1 and therefore the appellant bares the burden of proving that it is wrong. In Brisbane City Council v Valuer-General2 the High Court considered that the presumption in favour of the correctness of the statutory valuation may be rebutted where it can be shown that the valuation was based on a wrong principle and/or involved a significant error of fact and/or was made by a fundamentally erroneous method. Pursuant to s.45(4) of the VLA, the appellant also bares the burden of proving each and every ground of appeal relied on.
[5] The appellant was represented by her son Mr N Hewett. The respondent was legally represented by Mr G Smith a principal lawyer employed by the respondent and relied on the evidence of Mr Quirk-Anderson a registered real estate valuer also employed by the respondent.
Issues in the appeal
[6] As has already been touched upon, the real issue in these appeals was whether or not the activities being conducted on the land constituted the dominant use of farming or whether it more appropriately ought to be categorised as being the business of eco-tourism. Historically the land had been valued, pursuant to s.17(2) of the Valuation of Land Act 1944 (VLA), on the basis that the dominant use of the land was farming. As I understand the evidence, that was so because a not insignificant area of the land was being used for orchard purposes. There was, and still is, on the land a significant tropical fruit orchard over approximately 4 ha incorporating some 600 fruit trees of 30 different species. The balance of the land, as described by the appellant, is made up of a mixture of pristine 1 s.33 VLA. 2 (1977-89) 140 CLR 41 at 56-57. 2 tropical forest and other forest areas which had some time in the past been the subject of some commercial logging.
[7] Because of its location within the WTWHA and the tropical forest existing on it, the land is subject to a raft of legislation all primarily designed to protect and enhance the physical characteristics of the wet tropical forest areas north of Cairns. This legislation is particularised in some detail in the notices of appeal of the appellant. Some of the more significant instruments include: • Wet Tropics of Queensland World Heritage Conservation Act 1994; • Queensland’s Wet Tropics World Heritage Protection and Management Act 1993; • Environment Protection and Biodiversity Conservation Act (C’th) 1999; • Wet Tropics Management Plan 1998 • Aboriginal Cultural Heritage Act 2003; • Iconic Queensland Places Act 2008.
[8] Also, as was recognised by both parties, the land falls within the Conservation Planning Area of the town plan of the then Shire of Douglas.
[9] Not surprisingly, development of the land is severely restricted because of the restrictions imposed by legislation and the relevant town planning instruments. In this context, some time at or about the year 2000, the appellant entered into a conservation agreement with the State of Queensland.3 This agreement was entered into pursuant to the Nature Conservation Act 1992 (NCA) and the scope of the agreement is set out in these terms: “This agreement is made pursuant to s.45 of the Act with the specific purpose of creating a Nature Refuge over The Land. Such a Nature Refuge is to be managed according to the principles set out in s.22 of the Act which are to: (a) conserve the areas significant natural resources; (b) provide for the controlled use of the areas natural resources; and (c) provide for the interests of landholders to be taken into account.”
[10] Clause 4 of the agreement specifically states that no activities are to be undertaken on or in respect of land except those authorised under the agreement or a management plan made pursuant to the NCA. In the schedule to the agreement, item 1 (clause 1.1) identifies that part of the land which is subject to the limitations imposed under the agreement, and is referred to as the “Cooper Creek Wilderness Nature Refuge”. Item 1 also identifies that part of the land which is excluded from that refuge area. These areas are then identified on an attached plan with the nature refuge area being the shaded area. 3 Ex. 6. 3 The exempt area is left unshaded. The area of the nature reserve comprises about 50 ha. The area excluded from the refuge includes the orchard and the appellant’s residence.
[11] There is little, if any dispute about the physical characteristics of the land and the extent of the restrictions on land use. The dispute arises in this way. Section 17(2) of the VLA relevantly provides an avenue for financial relief in circumstances where the subject land is being used for farming but the highest and best use is for something else. Perhaps put it at its crudest, s.17(2) allows land to be valued by reference to farming values rather than values which would apply if the achievement of the highest and best use was not otherwise thwarted by the land being used for farming. However, the farming must represent the dominant use of the land. Section 17(2) relevantly provides: “(2) In subsection (1)— farm improvements includes appropriate sheds, other structures, facilities, farm plant and land development for the particular farming business but does not include a dwelling or car accommodation. farming means— (a) the business or industry of grazing, dairying, pig farming, poultry farming, viticulture, orcharding, apiculture, horticulture, aquiculture, vegetable growing, the growing of crops of any kind, forestry; or (b) any other business or industry involving the cultivation of soils, the gathering in of crops or the rearing of livestock; if the business or industry represents the dominant use of the land, and— (c) has a substantial commercial purpose or character by— (i) having an average gross annual return, calculated over a 3 year period, of at least $5000; or (ii) if the business is the establishment and harvesting of native or non-native forests—having an average anticipated gross annual return, calculated over the period from establishment to harvesting, that is usual for the particular species of tree, of at least $5000; or (iii) if the business is the maintenance and harvesting of native forests—having an average anticipated gross annual return, calculated over the period from the start of maintenance to harvesting of the particular species of tree, of at least $5000; or (iv) having— (A) a minimum value of farm improvements or plantings of forest or orchard trees of $50000; and (B) the appearance of being maintained for farming or expenditure on crops, forest trees, maintenance of farm improvements, livestock or orchard trees; and (d) is engaged in for the purpose of profit on a continuous or repetitive basis. …”
[12] At one stage it seemed to be contended on behalf of the appellant that the land ought also been valued pursuant to s.17(1) on the basis that the dominant use of the land was for a single dwelling house but that aspect of the appeal was abandoned.
[13] In Thomason v Department of Lands4 the Land Appeal Court had this to say about the dominant use test: 4 (1994-95) 15 QLCR 286 at 303. 4 “In our view, the proper approach to be taken when ascertaining the dominant use of land is to consider such matters as the amount of land actually used for any purpose, the nature and extent and intensity of the various uses of the land, the extent to which land is used for activities which are incidental to a common business or industry of a type specified in section 17(2), the extent to which land is used for purposes which are unrelated to each other, and the time and labour and resources spent in using the land for each purpose. When undertaking this exercise, one cannot ignore the conclusion that an objective observer would reach from viewing the land as a whole.”
[14] In reaching the conclusion that the dominant use of the land was eco-tourism Mr Quirk-Anderson had regard to the following matters, none of which were disputed by the appellant. First, the appellant conducts, among other things, on the land guided tours intended to educate and introduce visitors to the exciting and unique north Queensland wet tropic forest. Up to 4,000 visitors per annum take part in these tours at a cost of $45 per person. As the appellant acknowledged the gross revenue from this activity was in the order of $180,000 per annum. Second, when regard is had to advertising undertaken by the appellant it is reasonably clear that the business of the land or the dominant use of the land is eco-tourism not farming. At least one sign is located on the land advertising two hour walks at a cost of $45 per person5 and the appellant, under the name of “Cooper Creek Wilderness” has a website which, among other things advertises “wilderness tours”.6 It is also tolerably clear that the said conservation agreement recognises and attempts to provide for the eco-tourism activities being conducted on the land by the appellant.7 I should point out here that the orchard is no longer being operated as a separate commercial entity but forms part of the overall attractions available on the tour over the land.
[15] During cross-examination the appellant, to her credit, candidly conceded that she could understand how a person looking at this material objectively could reach the conclusion that an eco-tourism business was being conducted on the land. In this context she also said that in the tax returns filed by her concerning the “Cooper Creek Wilderness” enterprise the business was stated to be eco-tourism or something to similar effect.
[16] Turning then to the case for the appellant, it largely turned on the meaning that ought be attributed to the word “harvesting” where used in s.17(2). Under that section farming includes, among many other things, forestry. The appellant says that in determining whether or not the dominant use of the land is farming, when regard is had to the word “harvesting” a broad interpretation or construction of that word ought be adopted. The appellant argues that harvesting ought not be limited to the more traditional view of the cutting and milling or otherwise removing the timber on the land but ought also to 5 Ex. 3. 6 Ex. 5. 7 See Ex. 6 Items 4(e), (h), (i), (j) (k) and (m). 5 include more passive, educational and altruistic uses of the forest. Including by way of examples people being able to “harvest” educational benefits and other personal experiences from walking through the forest. In this context in her statement8 the appellant says: “Nevertheless, the appellant believes that the existing legislation is not necessarily inconsistent with a definition that supports the overriding obligations of World Heritage, in as much as ‘harvesting’ is not so specifically defined within the legislation as to preclude a sustainable yield from non-destructive uses. A judicial ruling that would allow Valuation Officials a precedent to guide such an interpretation, would certainly align with the times and may even encourage more private land-holders to embrace conservation management to a greater extent. A common definition of ‘harvest’ is the product or result of any exertion or labour; gains; reward. The maintenance of the lands native forest and its protection from conflicting impacts (as required by law) represents the exertion or labour. To gain and reward, in its conformity with World Heritage objectives, is more altruistic than perhaps logging previously returned, but even more importantly, it is imperative that the international community recognises and encourages the changing values of humanity that accompanied World Heritage listings of land, through an emerging willingness to pay a part of the cost of maintaining the integrity of a forest through non-destructive uses. … There are obviously many other values that the land’s rainforest holds apart from its worth as an extractable timber resource. Contingent valuation measures both use and non-use values, however it is one of the only ways to assign dollar values to non-use values of the environment. Such values do not involve market purchases and may not involve direct visitor participation. These values are also known as ‘passive use’ values. They include everything from the basic life support functions associated with the health of the ecosystem and its extensive bio-diversity, to spiritual replenishment and simple enjoyment of the visual amenity or wilderness experience.” Reference is also made to other material including the Daintree Future’s Study and a CSIRO survey of visitors to the Daintree Rainforest area.
[17] Not surprising the respondent contends for the more traditional definition of the word “harvesting”.
[18] The words used in s.17(2) need to be read in the context of the whole of that section and the Act at large and, absent some sound reason to the contrary, ought to be given their natural and ordinary meaning. Whilst I acknowledge that it is not impossible to conceive the concept of harvesting knowledge and enjoyable experiences, it is my opinion that where that word is used in s.17(2) it is meant to convey its more traditional meaning, particularly when being considered within the broader concept of “farming”, to include 8 Ex. 1 at pp 10 and 11. 6 the reaping, gathering and storing of crops.9 Here of course the relevant crop for the purposes of s.17(2) would be the native forest.10
[19] Another difficulty confronting the appellant is that the scheme of s.17 is such that whatever the dominant use to which the land is being put, it must be capable of being objectively characterised as “farming”. Under the meaning of farming provided for in s.17(2) the only activity that could apply in the circumstances is the “business or industry” of forestry.11 Forestry in this context being the science and art of planting, establishing, managing and cultivating timber.12
[20] The evidence of the appellant was that she carried out on the land some endeavours which could fall within the scope of forestry. By way of examples protecting and managing the forest. On the evidence before me however, these actions seem to be more associated with or ancillary to the eco-tourism business conducted on the land rather than the business or industry of forestry. The native forest on the land has grown naturally and stands essentially unaided by the activities and operations of the appellant. On any view of the evidence it could not be said that the dominant use of the land was forestry and therefore farming.
[21] For the reasons expressed above, I must reject the appellant’s construction of s.17(2) and, accordingly find that the dominant use of the land as at 1 October 2007 was not farming but eco-tourism.
[22] In this regard I note that under the conservation agreement any “… industry or business”, the same words used in s.17(2) of the VLA, cannot be undertaken without the appropriate consent or authority.13 It is probably the case that therefore the industry or business of farming is in fact prohibited in any event (subject to consent) under the existing agreement between the appellant. However, as this question was not raised in the proceedings before me I will express no final opinion about it. The Valuation Evidence
[23] Subject to one matter I will deal with below, there was really not a lot of dispute about values between the parties in this sense; if the appellant’s construction of s.17(2) applied, the respondent did not take issue with her assessment of value and, on the other hand, if the respondent’s construction of s.17(2), applied then the appellant did not seriously challenge the valuations of the respondent. The only caveat to this being that, according 9 The Macquarie Dictionary 3rd edition; shorter Oxford English Dictionary. 10 These activities are expressly prohibited (without consent) under Item 5 of the schedule to the conservation agreement. (Ex 6.) 11 S.17(2)(a). 12 The Macquarie Dictionary 3rd edition; shorter Oxford English Dictionary. See also Corbould v The Valuer General (1975) 2 QLCR 191 at 195. Cited with approval in Beaton v Valuer General 5 QLCR 171 at 173. 13 Ex. 6; Schedule, Item 5(m). 7 to the appellant, even on a rural/residential basis the respondent failed to have sufficient regard to the limitations imposed over the use of the land by virtue of the legislation etc. referred to above.
[24] Mr Quirk-Anderson, because of the extent of the limitations over land use determined that when assessing its unimproved value, the land the land ought to be valued on the basis of it essentially being a rural/residential homesite.14 Having regard to the somewhat usual circumstances surrounding this appeal I do not consider that to be an unreasonable valuation approach. Essentially that leaves only two questions to be resolved. First, whether the sales evidence relied on by Mr Quirk-Anderson was reliable evidence of value? Second, when analysing and applying that sales evidence to the subject land was sufficient regard had to the limitations on use?
[25] Turning to the first of these matters Mr Quirk-Anderson had regard to seven sales ranging from 0.1 ha to 376 ha. The subject land is of course about 69 ha in total. Even in the absence of there being no serious challenge to the application of these sales I am not at all convinced that sales of only 1 ha or less or sales up to five times the area of the subject could be reasonably said to be sufficiently comparable to provide probative evidence of value. For these reasons I do not intend to have any regard to Mr Quirk-Anderson’s sales 5, 6 and 7. Sale 5 is more than 5 times the size of the subject and, having regard to the improvements thereon, which include clearing to pasture, fencing, yards, dams and a shed it seems to be or have once been an established grazing property or part thereof.
[26] Sales 3 and 4, while much more comparable in area have attributes which clearly distinguish it from the subject land. For example sale 3 is a beach front property located near Cape Tribulation. According to Mr Quirk-Anderson, this property is located in a “prime beach front position”. Sale 4, which is also located in the Cape Tribulation locality, has good rural and coastal views and has a land use designation which would seem to permit some tourism development even if limited to “rainforest tourism”. These attributes no doubt played a significant role in these properties being assigned unimproved values of $1,600,000 and $1,930,000 respectively. The physical characteristics of these parcels of land together with the vast difference between the unimproved values assigned to them leads me to the conclusion that Mr Quirk-Anderson’s sales 3 and 4 also provide little if any probative evidence of value.
[27] This then leaves Mr Quirk-Anderson’s sale 1 and 2. In my opinion these sales do provide reliable evidence of value. It is true that neither of them are located within the 14 Ex. 2 at p. 3 – Under the heading “use”. 8 WTWHA and, accordingly, are not subject to anywhere near the same degree of use limitation as is the case concerning the subject. However, when bringing this issue into context, that is in considering the impact of any restrictions on land use enjoyment, it is appropriate to bring into account the terms and conditions of the conservation agreement between the appellant and the State. In this regard, the evidence, such as it is, would seem to suggest that the agreement is not intended to be limited to only the appellant but its benefits and obligations might also pass to incoming purchaser of the land.15 This would tend to enhance the market value of the land. As I have already observed approximately 20 ha of the land is not subject to the Cooper Creek Wilderness Nature Refuge area. And, subject to the terms and conditions of the conservation agreement, the balance of land is still available to the landowner.
[28] At the end of the day I have reached the conclusion that Mr Quirk-Anderson’s sales 1 and 2 do provide reliable evidence of the unimproved value of the subject land and that they were properly analysed and applied by him in his valuation exercise. Indeed much of Mr Quirk-Anderson’s evidence was not seriously challenged by the appellant. The appellant has failed to show that the valuation appealed against was based on a wrong principle and/or involved a significant error of fact and/or was made by a fundamentally erroneous method. Accordingly, the appeals must be dismissed.
Order: The appeals are dismissed. R S JONES MEMBER OF THE LAND COURT 15 Ex. 6 clauses 9 and 10. 9