Cowley v Valuer-General
[2011] QLC 4
•1 March 2011
LAND COURT OF QUEENSLAND
CITATION: Cowley v Valuer-General [2011] QLC 0004
PARTIES:Terrence W Cowley
(Appellant)
v.
Valuer-General
(Respondent)
FILE NO:VLA256-10
DIVISION:General Division
PROCEEDING: Appeal against annual valuation under Valuation of Land Act 1944 which applies due to s.269 of the Land Valuation Act 2010
DELIVERED ON: 1 March 2011
DELIVERED AT: Brisbane
HEARD AT:Toogoolawah
HEARD ON: 8 February 2011
MEMBER:His Honour Mr WA Isdale
ORDER/S:1. The appeal is dismissed.
2.The valuation appealed against is affirmed.
CATCHWORDS: Valuation of Land Act 1944, ss 33, 45(4)
Calculation of distance – “MapInfo” – presumption of correctness of valuation – sales evidence
Brisbane City Council v Valuer-General (1978) 140 CLR 41
G. Franklin & Ors v Valuer-General (1978) 5 QLCR 181
J.L. and I. Qualischefski v Valuer-General (1979) 6 QLCR 167
N.R. and P.G. Tow v Valuer-General (1978) 5 QLCR 378
APPEARANCES: Mr TW Cowley self-represented for the Appellant
Mr J O’Rourke, Solicitor and Principal Legal Officer, Department of Environment and Resource Management, for the Respondent
Background
This property has an area of 123.1 ha and is located off Dead Horse Lane, about 7 km south-west of Toogoolawah. The land, in common with lands surrounding it, is used for grazing cattle.
The appeal
The Valuer-General has valued the land at $180,000 on the valuation date of 1 October 2009. Mr Cowley contended for a valuation arrived at by increasing the 2007 valuation of $124,000 by 5%, which he stated was the appropriate Consumer Price Index adjustment.
The grounds of appeal are that this land, which Mr Cowley describes as a paddock since it is not combined with a residence but only used for grazing, has no access. The Notice of Appeal, exhibit 1, goes on to state that the legal access comes in at a point where there is a sheer rocky ridge or shelf such that the cost of making the access suitable for use by vehicles would be more than the land is worth.
The Appellant’s evidence
Mr Cowley, a very experienced grazier in this area, gave evidence that the land is mountain grazing country for cattle. He puts them on as steers and takes them off as bullocks. The long term carrying capacity of the block is 30 mature bullocks.
Mr Cowley’s evidence was that he relies on the hospitality of his neighbours to access this land through their property due to the difficulty of using the legal access.
It became clear that there is legal access to the land the subject of this appeal but it is difficult to use. An unformed gazetted roadway, it is too rough to drive vehicles all the way along and it enters the land at a point where the rocky shelf seriously restricts access to the block.
Cross-examined by Mr O’Rourke, Mr Cowley was shown two aerial photos of the subject land which have the contours and the location of the access road superimposed on them. These became exhibits 2A and B.
Mr Cowley was also shown photos of the three sale properties used by the Valuer-General to value the subject land. These became exhibits 3A, B and C.
The length of the legal access was disputed by the parties. Mr Clark, the registered valuer who gave evidence for the Valuer-General, put the length at “approximately 2 km” in his report, exhibit 4. Mr Cowley gave evidence that he paced it out at about 3,000 paces so his evidence was that it was 3 km in length. He described his method as “pretty accurate” and of the length he said in cross-examination that he thought it was a bit more than about 2 km.
It emerged in cross-examination that the 2004 valuation had been reduced by 20% on account of the disabilities of this land.
The rock shelf in the paddock requires cattle to walk around it should the legal access be used as it would not be possible to drive a vehicle further on to the land.
Mr Cowley’s evidence was that he would still be able to run the same number of cattle on the land if restricted to using only the legal access. It would be necessary to use horses when mustering the cattle, due to the terrain difficulties. He uses horses at present in any event.
If forced to use the access road, he could use vehicles for only the first kilometre, due to its roughness.
The expert evidence
Mr Colin Clark gave expert valuation evidence. There was no competing expert evidence.
Mr Clark described the subject land as mostly moderate to steep forest country, in parts quite steep and rocky.
He valued the land by means of direct comparison with three sales of comparable properties. He has inspected the property and the sale properties.
The subject property, in his opinion, is a steep forest grazing block with “poor access” and is lacking services. It has two titles but has been valued as one block.
Mr Clark’s sale 1 was described by him as similar country but “much steeper”. With an area of 165.81 ha, it sold on 12 July 2009 for $295,000. He has applied a value of $1,372 per hectare. With more rough country, it has a much lower overall carrying capacity than the subject. It is more isolated, with similar stock water supply and superior legal access compared to the subject. This block is about 19 km south-west of the subject property.
Sale 2, located 45 km south-east of the subject, is largely steep with dense vine scrub so there is very limited grazing potential. Mr Clark has applied a value of $2,215 per ha. The sale price of this 101.6 ha block was $250,000 and it sold on 12 August 2009.
Sale 3 is a 48.158 ha block which sold for $250,000 on 13 February 2010. Mr Clark applied $4,049 per ha. It is 28 km north-east of the subject and is mostly moderate to steep ironbark forest slopes with patches of vine scrub.
From those sales comparisons, Mr Clark has concluded that the subject property should be valued at $1,462 per ha, being $180,000 overall.
There was no competing body of expert evidence and the appellant did not provide any other sales from which another level of value could be arrived at. There was no suggestion that the valuation was affected by any error of principle or that the sales used were not suitable for the purpose.
Mr Clark gave evidence that the length of the legal access roadway was approximately 2 km and that he had used survey plans and “MapInfo” a software tool made available to him by his employer, to arrive at that measurement. He had rounded the distance to the nearest 100 metres.
From his experience working on sheep and cattle properties, Mr Clark stated that cattle could walk around the rocky area once they were on the property.
To the suggestion that using the roadway would require spending $60,000 for fences and gates, Mr Clark replied that there would be no need to incur such an expense. Cattle could be moved along the legal access using horses and dogs once the owners of neighbouring land had been organised to keep their stock out of the area to allow the movement to take place.
Mr Clark was of the view that his three sales all had access difficulties but none was as bad as the subject.
He was of the opinion that sale 1 was the most comparable to the subject. He assessed the subject land’s carrying capacity as 25 bullocks rather than 30.
The law
The Valuation of Land Act 1944, by s.33, provides that the Valuer-General’s valuation is deemed to be correct until otherwise proved. Section 45(4) limits the appellant to the grounds of appeal in the notice of appeal and puts the burden of proof on the appellant.[1]
[1] G. Franklin & Ors v The Valuer-General (1978) 5 QLCR 181 at 184-185.
The onus on the appellant is difficult to discharge where there is no expert evidence produced by the appellant which would support a different value to that contended for by the Valuer-General.[2]
[2] J.L. & I. Qualischefski & Ors v Valuer-General (1979) 6 QLCR 167 at 172.
The Valuer-General’s expert witness based his valuation on sales, the preferred basis.[3]
[3] N.R. & P.G. Tow v Valuer-General 5 QLCR 378 at 381.
If the valuation was founded upon a serious error of fact, the presumption of correctness will be rebutted.[4]
[4] Brisbane City Council v Valuer-General (1978) 140 CLR 41 at 56-57.
Conclusions
In this case, the point of fact in dispute is the length of the access road. The appellant contends for 3 km and the respondent for approximately 2 km. The appellant has paced out the distance and would have intimate knowledge of the access to his land; it is a difficulty he must confront constantly. His method of measurement is however less scientific than that applied by the valuer and I accept the valuer’s evidence in this regard.
I note that the length of the access track is one fact only in the consideration of the valuer and that he has concluded that legal access to the subject is worse compared to any of the sales.
The appellant in fact uses better access which he has obtained through neighbouring land. For present purposes, it is appropriate to consider only the legal access, which will result in the most favourable outcome in this case for the appellant.
Mr Cowley’s evidence was that, if forced to use the legal access, he would still be able to run the same number of cattle as he does now when using the access through neighbouring land. He also gave evidence that he musters on horseback at present so having to use the legal access would not require a change of method, though doubtless it would be more difficult. In view of this, I have concluded that the precise length of the legal access is not a significant fact for valuation purposes. Mr Cowley’s evidence was clear in relation to the difficulties of using this access and Mr Clark gave consideration to that difficulty, the relevant point. I have accepted Mr Clark’s calculation of the length of the access but doing so does not in any way diminish the difficulty of using it, an aspect that Mr Clark did appreciate and allow for.
No attack was made on the usefulness of the sales relied upon by the expert valuer and no error of fact or method was shown that could have invalidated the valuation process.
I am satisfied that, even if, contrary to my finding, the access is 3 km long, that is not such a serious error of fact as to invalidate the valuation since the actual difficulty was appreciated and allowed for and since, in any event, the first kilometre, according to Mr Cowley, could be driven upon.
In the absence of evidence sufficient to displace the presumption of correctness, I find that the appeal must be dismissed and the valuation appealed from affirmed.
WA ISDALE
MEMBER OF THE LAND COURT
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