Waller; Department of Family and Community Services [1999] AATA 129 (9 March 1999)

Last Updated: 10 March 1999

DECISION AND REASONS FOR DECISION [1999] AATA 129

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/15

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And DAVID WALLER

Respondent

DECISION

Tribunal Mr. D.W. Muller, Senior Member

Date 9 March 1999

Place Brisbane

Decision The Tribunal affirms the decision under review.

............(Signed)..................................

D.W. MULLER

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY - Farm - Household Support Act - Restart Re-establishment Grant Scheme - disposal of all of farm assets - sale of farm enterprise - subdivision of property - new enterprise - cease to work as a farmer - negligible remainder not to be taken into account - affirm decision

REASONS FOR DECISION

9 March 1999 Mr. D.W. Muller, Senior Member

1. This is an application by the Secretary, Department of Family and Community Services to review a decision of the Social Security Appeals Tribunal, dated 8 December 1998, which determined that "David Waller is eligible for the restart re-establishment grant subject to the requirements of the Farm Family Scheme at section 3.2(1)(e), (f), (g), (h) of the Farm Household Support Act 1992".

2. The matters for determination relate to the provisions for qualification under the Restart Re-establishment Grant Scheme 1997 (the Scheme). The live issues in this review are:

(a) Whether Mr. Waller sold his farm enterprise (Clause 3.2(1)(b) of the Scheme), and

(b) Whether Mr. Waller disposed of all of his farm assets (Clause 3.2(1)(d) of the Scheme).

3. There is very little dispute about the facts. The Tribunal finds as follows:

(a) Mr. Waller had a property, Barnaline, at Cambooya.

(b) Mr. Waller was a farmer, operating at Barnaline.

(c) Mr. Waller's farm consisted of land contained on three titles. One block of 64.74 hectares had the farm-house built on it. The two other blocks had no dwelling on either of them. They covered areas of 98 hectares and 104 hectares.

(d) The two blocks of 98 hectares and 104 hectares were used entirely to grow crops and run cattle. They had water supplied by a creek running through them.

(e) The block of 64.74 hectares has the house plus curtilage on it. Twenty three hectares is arable, but does not have a water supply. The remainder is suitable for pasture only.

(f) Mr. Waller sold the two blocks of 98 hectares and 104 hectares. He retained the block with his house on it.

(g) Mr. Waller sold all of his farm machinery, silos and cattle.

(h) Mr. Waller took up the business of crop spraying.

(i) Mr. Waller attempted to subdivide the 64.74 hectares with a view to retaining that land necessary for house and curtilage plus the crop spraying business and selling the remainder. The local Shire Council refused to allow a subdivision which resulted in a property of less than 40 hectares.

(j) Mr. Waller is permitted to sell a portion of the 64.74 hectares, provided that it is to the owner of an adjoining property. Unfortunately, none of his neighbours can currently afford to purchase his offering.

(k) One of Mr. Waller's neighbours hopes to be able to purchase the 23 hectares of arable land in about five years. In the meantime, Mr. Waller leases the 23 hectares to his neighbour, who is growing sunflowers on the land.

(l) Mr. Waller hopes to expand his crop spraying business into an aerial crop dusting enterprise. To this end, he has spent over $30,000 on lessons to become a helicopter pilot. He is currently not able to afford to complete the course.

(m) Mr. Waller's home is in an ideal location for a crop dusting business. It is at the centre of a farming community. If he sold his home, his ability to carry on as a crop duster would be diminished.

4. Mr. Waller submitted that:

(a) He has ceased to be a farmer.

(b) Upon the sale of 202 hectares of prime farming land, all farm machinery, silos and cattle, he sold his farm enterprise.

(c) He has disposed of all of his farm assets. Anything that remains does not constitute a farm.

5. The applicant Department submitted that the retention by Mr. Waller of 23 hectares of arable land means that he has not sold his farm enterprise, or, in the alternative, he has not disposed of all of his farm assets.

6. The Tribunal finds that:

(a) Mr. Waller sold his farm enterprise, within the meaning of those terms in the Scheme, when he sold the land which he was working as a farmer, namely the two blocks covering 202 hectares, and when he sold all of the farm machinery, silos and cattle.

(b) The property retained by Mr. Waller does not constitute a residual farm enterprise.

(c) The remaining 23 acres of arable land without water, when compared to the 202 hectares of prime land with water supply that were sold, amounts to such a negligible remainder that it should not be taken into account (de minimis).

7. The Tribunal affirms the decision of the Social Security Appeals Tribunal.

I certify that this and the 4 preceding pages are a true copy of the decision and reasons for decision herein of Mr. D.W. Muller, Senior Member.

Signed: .....................................................................................

M. Kiosoglous, Associate

Date/s of Hearing 25 February 1999

Date of Decision 9 March 1999

Applicant Mr. J. Walsh, departmental advocate

Respondent Mr. Waller, himself