Dolley v Chief Executive, Department of Natural Resources
[1998] QLC 54
•22 May 1998
|
BRISBANE
22 May 1998
Re: Appeal against Annual Valuation -
Valuation of Land Act 1944 -
Valuation Roll No 4393
Local Government: Gatton Shire
(V97-249)
Edward P Dolley
v.
Chief Executive, Department of Natural ResourcesD E C I S I O N
Background:
This matter relates to a property located at Flagstone Creek Road, Flagstone Creek, and described as Lots 1 and 2 (and Easement A in Lot 1) on RP 196616, Parish of Flagstone. The subject land is located about 10 kms south-east of the Toowoomba Post Office, and has an area of 19.6 hectares. Easement A has an area of 2,736 square metres and provides access for Lot 2 to an earth dam constructed on Lot 1. The land is zoned "Rural" under the Gatton Town Planning Scheme of 8 December 1995, and effective at the date of valuation of 1 January 1996. The key issues are the nature of the land and whether the land is used for "farming" purposes under section 17(2) of the Valuation of Land Act 1944. With agreement, an inspection of the subject was undertaken together with both parties.
Access is good to the northern parts of Lots 1 and 2 from Flagstone Creek Road which is a dual lane bitumen sealed carriageway. Flagstone Creek Road becomes steeper and adjoins to the east and south of the subject. Both Lots 1 and 2 fall moderately from north to south, with the northern one-third of the two lots cleared and cultivated with 1,000 mango trees in various stages of cultivation. The soils are volcanic basaltic in the northern part, and sandstone forest in the south, being heavily timbered with ironbark, bloodwood, spotted gum, wattle and sucker undergrowth. There are good rural views from the higher slopes, and there is a shed near the northern boundary. The subject has a small frontage to Flagstone Creek at its southern point, although the creek is dry most of the time. The appellant has a licence to pump water for stock-watering purposes only.
On 18 February 1997, the Chief Executive, Department of Natural Resources, issued a valuation for the subject at $150,000. Following an objection, the Chief Executive reviewed the valuation, and on 2 July 1997, re-issued an amended valuation at $137,000. The appellant has now appealed that figure claiming the valuation should more properly be $36,500.
Mr EP Dolley appeared and gave evidence, calling evidence also from Mr S Jones. Mr E Ridley appeared for the respondent, calling evidence from Mr DJ O'Connor, the Departmental Registered Valuer responsible for determining the valuation.
The Evidence:
(1) The Nature of the Land -
In addition to the general comments already supplied, there are three dams constructed upon the subject. These were constructed some years ago to supply water for the "free range piggery" located towards the centre of the land. The dams are located as follows:
Dam 1 (80,000 gallons) - On Lot 1
Dam 2 (20,000 gallons) - On Lot 1
Dam 3 (100,000 gallons) - On Lot 2.
It was also noted that Dam 3 currently does not retain water due to the porous nature of its base, and requires further work to construct a liner. One dam also collects water from a pipe discharging from the roadway into the dam. The general location of the piggery was determined to be about 200 metres south of Flagstone Creek Road, and about 80 metres south of the south-eastern corner of Lot 1 on RP 136482, which is the nearest other parcel. However, the pigs are not located in pig sties, and free roam over a fenced timbered area to the south of the mango trees.
Both parties agree that under the existing Gatton Town Plan there is unlikely to be any potential for further subdivision of the subject. Mr O'Connor confirms that the subject has been valued as two existing rural homesites with no potential for subdivision under section 17(1) of the Act. Because of its location in an area of expensive rural homesites along Flagstone Creek Road, Mr O'Connor has valued the subject as two rural lots in an area of good amenity and access to the major centre of Toowoomba. He has applied a concessional bulk holding allowance of 10% for the two parcels in common ownership.(2) Use for Farming Purposes -
Mr Dolley argues that the land has been used for farming purposes continuously for 30 years. It is currently used for the breeding of pigs and the production of mangoes, and there is no residence on the land. The two lots are used as one parcel for these purposes. Mr O'Connor agrees with the appellant that the land is used on a continuous on-going basis for pig farming and that a mango orchard has been under cultivation since 1992. Mr O'Connor further agrees that the appellant demonstrates diligence and repetition in his efforts to farm the land.
However, while Mr O'Connor agrees that Mr Dolley meets most of the criteria to satisfy the Act, he believes that he cannot classify the subject as being of a "significant or substantial" nature or character. For these reasons he has not valued the land under section 17(2) of the Act as for "farming" purposes. He notes that, from figures supplied by the appellant, the gross profits from pig farming have, on each occasion, been ploughed back into the mango operation, indicating only a small income from the business.(i)The Breeding of Pigs -
Mr Dolley confirms that for the last 30 years he has maintained between 25 to 30 sows on his free-range pig production farm, supplying about 400 pigs each year to the market. He has a contract to supply between 300 to 400 pigs at $25 per head to a local buyer. He estimates that his yearly gross income from pigs is about $10,000. He draws comparison with Government statistics which indicate that an average primary producer has an annual income of between $4,000 and $6,000. On that basis alone he claims that his earning capacity for pigs justifies his designation for farming purposes under the Act.
Mr O'Connor also notes that the appellant had supplied the following gross incomes from the subject:
1994 - $ 8,010 - Sale of 312 pigs
1995 - $10,302 - Sale of 362 pigs and $300 for beans
1996 - $11,317 - Sale of 402 pigs and $340 for beans
He estimates that expenditure was often greater than income and any small profits were ploughed back into the mango production.
Mr O'Connor argues that guidance supplied in the Department of Primary Industries (DPI) PIGTECH note, indicates that average farm pig numbers have doubled in recent years, such that a well-designed piggery, of one person with part-time help, can manage 100 sows and progeny to baconer weight. He claims that it is seen as a minimum-sized unit in order to support "the average family". However, it is also noted that those numbers may be smaller if there are other enterprises operated on the farm, and overall farm income balanced accordingly.
Mr Dolley argues that the DPI publication is merely an industry guideline, and farm size can vary with the methods of operation. He notes that his operations are "free range" and different to the conventional fixed pens. While the pigs can be kept in paddocks, they usually also require shelter to protect them. There was also some discussion about the recommended minimum distance of the piggery from the roadway and settlements of more than ten houses. However, in view of the long existence of the piggery, there was no suggestion that the pig farming at its current level would not be approved to continue, particularly in view of the scattered nature of the adjoining rural residences along Flagstone Creek Road.
In respect of the cost of producing the pigs, Mr Dolley advises that he currently supplements the feed for the pigs with cheap rubbish-type grain. He purchases about 12 to 15 tonnes of grain at $300 per tonne. He also obtains additional feed as payment for small "off farm" jobs he undertakes in the area. Mr Jones confirms that in comparison to other bigger well-run establishments in the shire, Mr Dolley's relative lack of income from the pig farming would be representative of the area. Mr Jones confirms that the subject was not a large operation, and was at the smaller end of the scale of genuine farmers. He also confirmed that the operation was not a hobby farm type of activity, and that it had a greater justification for farming status than others in the area which were afforded concessions.(ii) The Cultivation of Mangoes -
The appellant demonstrated that he had a structured plan to establish approximately 1,000 mango trees since 1992. The trees were planted progressively since the initial planting of 60 trees in 1989, a further 150 trees in 1992, then 200 trees in succeeding years, until his last planting of 150 trees in 1997. During this period the area suffered from a severe drought, yet, with hand-watering, he now has all trees thriving.
Normally he could expect some production of fruit after about four years, depending upon whether the seedling was grafted or not. This had been delayed because of the shortage of water, but he is now planning to sell his first commercial crop to the market in February 1998.
Mr Dolley has selectively chosen varieties of mangoes, and staggered his planting and cropping times, in order to maximise his return from late season prime fruit. His varieties include recognised types such as "Kensington Pride" and "R-2 E-2" which are all in demand for late season fruit, and which bring top prices both in Brisbane and Sydney. His plantings involve a cost of $10 per tree plus a further establishment cost of $20 per tree for maintenance, etc.
Because of his location near Toowoomba, he claims he will be the last supplier in Queensland to have mangoes, and this strategic position places him in an excellent position to maximise his return from his crop. He suggests returns of $22 per tray (Brisbane) to $30 per tray (Sydney). He estimates his return from his first commercial crop in 1998 will be about $5,000. At the time of the inspection he had 100 trays ready for the market.
He estimates that, when all his trees are bearing, he will return about 4,000 trays at an average return of $15 per tray. He seeks support for his business strategy from the returns of another farmer with 2,000 trees in the Flagstone Creek area, which produced 4,000 cartons in 1997. That was supplemented with tomato crops, which fully supported two families.
He acknowledges that those farmers had the advantage of a deep bore for regular watering, but claims his current water practices, and his three dams, will support his entire enterprise. He notes that those farmers also started about 5 years prior to his plantings. He claims his trees will soon match those returns. While he acknowledges that the tomato-growing requires more water than he currently has, he argues that those farmers also have mango trees where, because of its hilly nature, they cannot pump water to the trees. However, those trees still bear fruit for market. Should his mature trees need further water at fruiting time, he would then extend a small trickle irrigation system from the dams.
Mr O'Connor was not familiar with the other mango farmer in Flagstone Creek, and could offer no comment on comparability with the subject. However, he notes that operation relied on trickle irrigation on sandy soils, and, because of its lower elevation than the subject, would not be subject to the same impacts of frost. This concern with the higher elevation and frosts was one of the reasons Mr O'Connor had some doubts about the viability of the enterprise, and why he wanted to see if the crop eventuated. Mr O'Connor had some knowledge of the growing of mangoes in the Gatton Shire, but he was unaware of any successful mango cultivation in areas as high or cold as Toowoomba.
Mr Dolley however claims that, because of his location just under the top of the range, the subject has a localised warmer micro-climate different to Toowoomba. He argues that the current crop coming on-stream for markets in February 1998 justifies his strategy.
(3) Comparison of Sales -
In support of his valuation as two rural homesites, Mr O'Connor provided the following comparable sales:•Sale 1 - (Flagstone Creek Road, Flagstone Creek - Lot 4 on RP 141346)
This is a 2.008 hectare vacant site zoned as "Rural" and located about 300 metres north-west of the subject. The sale slopes away from a cleared housepad just below the road and has rural views to the north and east. It is similar to the subject (Lot 1) in size, services and location, and superior to the subject (Lot 1) in outlook, elevation, exposure to traffic noise. The sale is superior overall to the subject (Lot 1).
The sale sold in October 1995 for $75,000, which after allowing for improvements was analysed at $70,000, and applied at $65,000.
•Sale 2 - (Cnr Blanchview and Silverpinch Roads, Flagstone - Lot 2 on RP 808645).
This is a 14.029 hectare vacant site located about 1.2 kms east of the subject, and zoned as "Rural". The sale is moderate to steeply sloping timbered clayey forest country with narrow gully watercourses. There is a high voltage 70 metre wide Queensland Electricity Commission overhead transmission powerline across the sale from south-west to the northern boundary. The sale is also at a lower elevation than the subject, and is seen as inferior to the subject (Lot 2) with inferior access.
The sale sold in June 1994 for $76,000 which after allowing for improvements was analysed at $63,540, and applied at $61,000.
•Sale 3 - (Flagstone Creek Road, Flagstone - Lots 1 and 3 on RP 198154).
This is a 3.3271 hectare rural site, located about 1.6 kms south-east of the subject. The sale (Lot 3) is on the elevated creek bank between Flagstone Creek and Flagstone Creek Road. Lot 1 is mainly low-lying land. The sale is slightly superior due to the creek frontage, although it is lower with less outlook than the subject. Overall the sale is seen as inferior to the subject (Lot 1).
The sale sold in July 1996 for $70,000, which after allowing for improvements was analysed at $63,350, and applied at $60,000.
•Sale 4 - (Flagstone South Street, Tabletop - Lot 106 on Plan CC 1077).
This is a 13.81 hectare rural vacant site, located about 3 kms north-east of the subject. The sale is moderately to steeply sloping basalt forest country at the foot of Mt Tabletop. Access is poor via 500 metres of 4WD track. The sale is considered slightly inferior to the subject (Lot 2).
The sale sold in April 1994 for $150,000, which after allowing for improvements was analysed at $122,900, and applied at $90,000.
In considering those sales the appellant argues that the cost of clearing has been inadequately allowed for at between $4,000 to $6,000 (Sales 1 to 3). He believes the $22,000 allowed for in Sale 4 is nearer the actual cost, which he claims should be nearer $30,000, based upon his experience. However, under cross examination he agrees that his estimates of clearing were based more upon his observations of land sales in the area, rather than detailed costs of clearing. Mr O'Connor agrees also that unimproved values in the area have been fairly stable since 1993.
When queried about the likely value of the subject as a "farming" business, should the Court find in that favour, Mr O'Connor provided an estimate of $59,000. This was determined on the basis of $8,000 per hectare for the higher cleared land, and $1,750 per hectare for the lower timbered land. Based upon an average of $3,000 per hectare, he believes a figure of $59,000 for "farming" purposes would be appropriate.
Decision:(i) Comparison of Sales -
I turn first to the comparison of sales and note that there has been no serious challenge to the estimated valuations based upon two rural housesites. As the two parcels comprising the subject (Lots 1 and 2) are separate titles, each capable of existing as separate entities, the respondent has appropriately valued them as a single valuation under section 34(1)(a) which states:"34.(1) Unless the chief executive otherwise directs, there shall be included in 1 valuation -
(a)several parcels of land which adjoin, and are owned by the same person, and whether either no part is leased or all the parcels are let to 1 person; "
In determining his valuation, Mr O'Connor has found the subject (Lot 1) to be inferior to Sale 1, superior to Sale 2, and superior to Sale 3. He has also found the subject (Lot 2) to be slightly superior to Sale 4. In adopting applied valuations of $57,000 (Lot 1) and $95,000 (Lot 2) he has maintained a consistent relativity with those sales. The application of a 10% bulk loading allowance conforms to a general procedure applied across the State. The determined figure of $137,000 on that basis would appear reasonable.
I also note that, in the event that the Court found that "farming" did apply, the respondent agrees that a valuation of $59,000 would be appropriate. There was no evidence led to support the appellant's estimate of the valuation for farming purposes at $36,500, and I will accept $59,000 as a reasonable figure for "farming" purposes.(ii) The Nature of the Land -
There is no difference between parties in respect of the nature of the land, and the storage capacity of the three dams. The location of the free-range piggery within the recommended minimum distance (80 metres) from the nearest property is noted, but has no bearing on the current use of the land. It is accepted that the appellant has still to make repairs to the largest dam, should additional water be needed for the mango trees. It is also agreed that there is no potential for any higher use of the land under section 17.
(iii) The Use for Farming -
The key to the matter is whether the subject is used for "farming" purposes under section 17(2) of the Act. In this respect I consider initially the growing of pigs for commercial purposes. Before examining this, I turn to the Act and note that section 17 sets out the requirements as follows:"17.(1)In making a valuation of the unimproved value of land exclusively used for purposes of a single dwelling house or for purposes of farming, 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 irrespective of whether or not, in case of potential use as aforesaid, that potential use is lawful when the valuation is made.
(2)In sub-section (1) - "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 significant and substantial commercial purpose or character, and
(d)is engaged in for the purpose of profit on a continuous or repetitive basis. "
I note that Mr O'Connor agrees that the appellant satisfies parts (a), (b) and (d) of the Act, and that the farming for either the growing of pigs or the cultivation of mangoes could represent the dominant use of the land. In the weight of evidence supplied, I believe the dominant use of the land is for the cultivation of mangoes.
The only issue in this matter is therefore whether the cultivation of mangoes could be seen to be of a significant and substantial commercial purpose or character. However before exploring that further, I will deal with the growing of pigs as a business.
In seeking guidance in this matter Mr O'Connor has drawn reference to the findings in R Chippendale v. Chief Executive, Department of Natural Resources (V95-98), 7 June 1996, unreported; PR and BM Whalen v. Chief Executive, Department of Natural Resources (V95-17), 7 June 1996, unreported; and Chief Executive, Department of Natural Resources v. KW Whackett (1994-95) 15 QLCR 311. In the Chippendale
matter supra, the appellant was an elderly farmer who had farmed the land for almost his entire 75 years of age. His farming activities involved the breeding of beef cattle of numbers up to 150 head. However, his total sales over a period of four years consistently showed a loss once farm expenses and costs of sales were deducted from the gross sale returns. In that matter the learned Member found that Mr Chippendale did satisfy the requirements of section 17(2)(a),(b) and (d) but fell short in respect of section 17(2)(c).
In coming to this conclusion the Member noted at page 6:"I do not doubt that a property with a carrying capacity of 120 head can be shown as being used for a significant and substantial commercial purpose or character, but the evidence before me does not demonstrate this. "
The key turning-point of the Chippendale matter lay in the farming practices of the appellant. The Member found at page 6:
"While there is evidence that the appellants are breeding their herd up, I am uncertain about the type of enterprise actually involved; that is, what else does the business plan involve apart from simply improving the quality of the stock and selling off young calves? "
In the current matter there is some analogy with the objectives of Mr Dolley for his pig operations, in that while he obtains a regular gross income of some $10,000, any profits are then turned into the mango enterprise. Like Mr Chippendale, his pig farming appears to be the general background "bread and butter" funding for his real farming business. Certainly as an owner of only 30 sows he could not be seen as a significant supplier of pig products, although that income does contribute to the overall return of the farming business.
If I consider also the matter of Whalen (supra), I note that this involved 28.14 hectares of land at Bethania, which had been considered as a single farming enterprise for the grazing of cattle since 1963. The property carried between 50 to 70 head of cattle. Over the years 1990 to 1994 the appellants have consistently returned net losses for each year varying from $9,193 to $537. On the evidence before him the learned Member had no doubt that the appellants were dedicated farming people, who simply believed that their enterprise would eventually return a profit. However, he was unable to be convinced that the farming business could be described as "significant or substantial" and refused the appeal. A similar decision was also found in Whackett (supra) where the Land Appeal Court in a majority decision, applied a standard to be met by appellants for the adoption of the "farming" concession under section 17(2) of the Act. In the Whackett decision, the Land Appeal Court considered the findings of Taylor v. Chief Executive, Department of Lands (1992-93) 14 QLCR 477, and noted at page 328:"In the Taylor decision it was said that each of the words used in the phrase "significant and substantial commercial purpose or character" are capable of a number of meanings but in combination they appeared to require a trading or business activity of important or considerable size. "
The Land Appeal Court went on to further note at page 329:
"Importantly it was also stated that `it will still be necessary to consider each case on its own merits and it is still not possible to pose a simple test in this regard .... Each enterprise is different and it is not possible to set numerical or financial requirements which would be applicable for all or any of them. '
We agree with that observation, and with the learned member whose decision is under appeal in this case that there can be no artificial base for determining the scale of any particular activity which will satisfy the criterion in paragraph (c) of the definition. "
However on the evidence before it, the Land Appeal Court concluded at page 330:
"In our view neither the objective character nor the subjective purpose of the grazing enterprise can be said to be significantly and substantially commercial.
We emphasise, however, that we arrive at this conclusion on the facts presented in this case. There is insufficient evidence to find in favour of the owners. No books of accounts or trading figures of any kind were presented. Before us both parties relied on the verbal evidence of Mr Whackett in the Court below that these lands carry 70 head of mixed cattle on a year to year basis, that for the three years to 1992 they sold approximately 25 head of cattle per year and that he estimated their average recent gross return at $5,000 per annum. He also stated that the maximum carrying capacity is 70 head of cattle and it would be necessary to run more cattle to make any profit. "
The findings of both the Whalen and Whackett decisions rested heavily upon the failure of the appellants to demonstrate that their farming operations were substantial or significant businesses, or had the planned potential to become so. The evidence before this Court of Mr Dolley's pig farming operation closely resembles those matters.
I turn now to the matter of the farming of mangoes and I see a slightly different scenario. While Mr Dolley did not supply a written statement of his business plan to develop the mango orchard, his verbal evidence indicated that he has consistently and assiduously continued with the cultivation. While the maturity of the trees has been slower than anticipated, nevertheless, he is now marketing the first commercial crop.
It is acknowledged that his farming methods have a level of individuality, not representative of the recommended procedures. That he has been able to maintain the growth of his trees to fruiting capacity is a measure of the success of his strategy. He has carefully chosen a market segment which, in his opinion, should lead to a potential annual income of some $60,000.
I am also aware that a mango orchard takes some years to mature, and a lot of effort and capital must be invested before a return can be achieved. However in that regard I note that there are precedents in respect of whether the future potential of a farming business can be considered as a reality. Mr O'Connor has drawn my attention to the findings of the Land Appeal Court in AI MacAdam and another v. The Valuer-General (V80-298), 18 September 1981, unreported, where the Land Appeal Court said at page 8:"We stress that intentions, hopes and aspirations, however sincere, are not sufficient to constitute a business of primary production. They must be supported and affirmed by substantial and positive actions of a type and magnitude which are approaching or may be reasonably certain to reach commercial viability. "
The probability of being reasonably certain of achieving an outcome was also considered in the matter of GR and M Maguire v. Chief Executive, Department of Natural Resources (AV96-79), 23 April 1997, to be reported, where it was noted the appellant had sold his old orchid stock and demolished his old nursery building. He argued that such actions were part of his business plan to change his orchid cultures to another type, and to rebuild the nursery more suited to a shift to export production.
The learned Member noted "that it is not merely sufficient for the appellants to have the intention of replacing the orchid stock, or of rebuilding the nursery building. He went on to find at page 22:"Thus, Mr Maguire has had to delay his stock replacement problem according to the seasonal needs of the business. I find this process logical and I am therefore persuaded that any delays in the refurbishment program have occurred as a result of reasons which are of a commercial character, and do not indicate that Mr Maguire has in fact gotten out of the orchid nursery business for the purposes of this case. Should the nursery building and stock not be replaced as planned later this year, that would be a matter for consideration at a later time. "
A similar conclusion could be applied to Mr Dolley's mango enterprise.
However, it was also noted in CH and MC Peck v. Chief Executive, Department of Natural Resources (AV95-94), 14 June 1996, to be reported, where the learned Member noted at page 21:"Profit or lack of profit is not in itself the deciding criterion. The history of the intensive use to which the land has been put, the improvements made in relation to primary production, and the effort expended by the appellants on a continuous and repetitive basis in respect of all aspects of the enterprise suggest that it is a business or industry engaged in for the purpose of profit. The fact that profits have yet to be achieved does not of itself deprive the enterprise of its commercial purpose or character. "
The Peck matter related to a 4.083 hectare orchard which was being used to supplement the superannuation funding of the appellant. The net income of the property had failed to reach the expectations of the appellant for a variety of reasons, and the learned Member declined to approve that the land was being used for "farming" purposes under section 17(2) of the Act. On appeal, the Land Appeal Court confirmed the decision of the lower court and noted at page 7:
"In making such an assessment it is permissible - and necessary in our view in a case like this in which a business has been established for some time - for consideration to be given to the results achieved by the business after a reasonable interval has elapsed following its establishment. Full allowance must, of course, be made for such things as the uncertainties of the weather, the vagaries of markets, and fluctuations in exchange rates. Having given those factors proper weight, one may conclude that an owner, though genuinely pursuing profits, is engaged in such an unpromising enterprise that it could not be said, in accordance with any ordinary or reasonable standard, to have a significant and substantial commercial purpose. Such a conclusion was clearly open in this case, as was a conclusion that the appellants' business lacked the requisite significant and substantial commercial character. Where a business or industry is in the process of being established objective criteria other than results, such as a credible business plan, will of course be appropriate. "
The difference between the Peck matter and the current case is that Peck's business was seen to lack any promising potential commercial purpose of a significant nature. That was also found in the Whackett matter. But in comparison Mr Dolley now claims that he will, in his view, generate an income of $60,000 per year from the mangoes. Whether that claim reaches the expectation of a reasonably certain conclusion is at the heart of this matter.
There is also an analogy between this matter and the findings of DG Lane v. Chief Executive, Department of Natural Resources (V96-216), 12 June 1997, to be reported. In that matter the Chief Executive agreed that the appellant was "very close to satisfying the criteria of section 17(2), but felt clearer guidelines should be provided by the Court in such matters". Comparison between Peck was also considered, but the differences between Lane and Peck were seen to outweigh the similarities. In the end the Member found in favour of Lane, who was seen to have demonstrated that "his farm management practices have a certain originality, but that the results being achieved suggest that they are effective".
In the current matter Mr O'Connor argues that, while he has some empathy with Mr Dolley's intentions and aspirations, as a responsible valuer he must be reasonably certain that the business will achieve its objectives. He argues that there is a major difference between the words "intended" and "proven". As he is not aware of any major orchard that has been successful at such a high elevation, he cannot support Mr Dolley's argument.
Summary
In considering this matter I am aware that the onus of proof rests upon the appellant under section 56(2) of the Act, and that, in the absence of any such proof, section 33 states:
"33.Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the chief executive shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered. "
The legal burden of proof was explained by the High Court of Australia in Brisbane City Council v. The Valuer-General (1978) 140 CLR 41 (and also in 5 QLCR 283) (1978). However, Gibbs J noted at page 56:
"In my opinion once it is shown that in making the valuation the Valuer-General acted upon a wrong principle, or made a serious error of fact, the presumption created by s.13(7) is rebutted. "
Gibbs J went on to say also at page 57:
"The effect of these provisions is that an owner on appeal to the Land Appeal Court has the burden of proving the grounds of his appeal, but not the burden of proving that the amount which in his opinion should be the valuation is correct. Obviously the Court, if it allows an appeal may determine the valuation at an amount different from that for which the owner contends. "
I am also aware of the findings of the High Court in Commissioner of Succession Duties (SA) v. Executor Trustee and Agency Company of South Australia Limited and Others 74 CLR 358 (1946-47), where Dixon J said at page 373:
"I have had the advantage of reading the judgment prepared by Williams J and agree in it. I should like, however, to add for myself that there is some difference of purpose in valuing property for revenue cases and in compensation cases. In the second the purpose is to ensure that the person to be compensated is given a full money equivalent of his loss, while in the first it is to ascertain what money value is plainly contained in the asset so as to afford a proper measure of liability to tax. While this difference cannot change the test of value, it is not without effect upon a court's attitude in the application of the test. In a case of compensation doubts are resolved in favour of a more liberal estimate, in a revenue case of a more conservative estimate. "
In the current matter the test of value suggests that the land should be treated for farming purposes. However there is no real dispute with the estimated valuations of the respondent either for rural housing purposes ($137,000) or for farming purposes ($59,000). On balance, I believe that the appellant has demonstrated that his mango orchard has now reached the stage of satisfying the requirements of section 17(2), and should be valued as a farming enterprise. I base this conclusion on the anticipated returns from the sale of mangoes for this year. Like the decision in the Maguire matter, should that not come to fruition, that would be a matter for subsequent determinations.
Conclusion
Having considered the whole of the evidence I am persuaded that the appellant has proved his case. The appeal is allowed, the Chief Executive's valuation is set aside, and the unimproved value of Lots 1 and 2 on RP 196616 is determined at Fifty-nine thousand dollars ($59,000).
(NG Divett)
Member of the Land Court
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