Edwina E Toohey v Department of Natural Resources and Water
[2009] QLC 51
•9 April 2009
LAND COURT OF QUEENSLAND
CITATION: Edwina E Toohey & Anor v Department of Natural Resources and Water [2009] QLC 0051 PARTIES: Edwina E and Lyn J Toohey
(appellants)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NOS: AV2008/0959 DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under the Valuation of Land Act 1944 DELIVERED ON: 9 April 2009 DELIVERED AT: Brisbane HEARD AT: Atherton MEMBER: Mr RP Scott ORDER: The appeal is dismissed. CATCHWORDS: Valuation – cyclone damage – no permanent affect on land value demonstrated APPEARANCES: Mr Lyn J Toohey for the appellants
Mr GJ Smith, Principal Legal Officer, for the respondent
Pursuant to the provisions of the Valuation of Land Act 1944 and as at a relevant valuation date of 1 October 2007 the Chief Executive placed a valuation on land owned by the appellants in the amount of $2,300,000. The Chief Executive’s valuation figure had been higher however was reduced following objection. The appellants, unsatisfied with the outcome of the objection, have appealed to this Court contending to a valuation of $1,900,000.
The Chief Executive called David Frank Paton, registered valuer, who provided a valuation report in evidence. Evidence from the appellants came mainly from Mr Toohey, who conducted the appellants case, whilst Mrs Toohey provided supplementary evidence.
The subject land comprises an aggregation used for the growing of avocadoes and the fattening of cattle. Previously, potatoes had been grown on the land, however Mr Toohey informed the Court that the appellants had discontinued growing that crop. The land has an area of 805.2064 ha and is located in the Tablelands Regional Council area adjacent to the Tumoulin township. Some clearing has been carried out on the land whilst large areas remain under forest. There are some areas that were naturally open, including the Ducks Swamp area according to the appellants.
The grounds of appeal were confined: one concerned with the impact of Cyclone Larry on the land and the other comprising a suggestion that there are no comparable sales. The land was subjected to the destructive powers of Cyclone Larry on 20 March 2006. The main impact on the land was that of the destruction of trees, many being felled from the base whilst others were broken off mid-truck and in some cases, limbs were stripped from standing trees. Because of the change in the direction of wind as the cyclone traversed the Tablelands area, trees on the subject land fell in different directions resulting in what I would summarise as a shamble of fallen vegetation in the uncleared areas. The trees were mainly hardwood, some with logs up to one metre in diameter. The destruction of the trees resulted in fences being damaged and tracks obstructed, such that even today after much of the devastation has been addressed, there is an ongoing inconvenience in traversing the affected areas.
The appellants sold fallen timber as salvage to timber getters who in turn provided some assistance to the appellants in cleaning up after the cyclone. The timber getters naturally took the best timber.
Whilst one would expect that areas opened up to greater light intrusion by the removal of trees might in due course lead to better growth of native grasses, Mr Toohey said that lantana had taken the opportunity to spread in the affected areas and that he had to undertake a lantana poisoning program. One bullock was killed by a falling tree whilst another animal was trapped in a dam for some time but was fortunately able to escape.
In his valuation report, Mr Paton included five sales, sale 1 having an area of 134.76 ha and sale 3 an area of 182.4 ha. Mr Toohey expressed the view that these two sale properties were not sufficiently large to be considered grazing properties but ought to be characterised as lifestyle blocks. Mr Paton said that sale 3 was purchased by a grazier who has cattle in the area whilst sale 1 qualified for a concessional valuation as farming land pursuant to s.17 of the Valuation of Land Act.
Sale 2 in Mr Paton’s valuation report has an area of 361.06 ha and sold in April 2007 for $3,630,000. Mr Paton analysed the sale down to a figure of $1,760,247. He concluded that overall the sale property was inferior to the subject due mainly to the size differences. Mr Toohey said that the sale land had lighter timber than on the subject property so would have been less affected by the cyclone, though some bigger trees were felled on it. Mr Paton was aware of this, however responded by pointing out that the sale took place after the cyclone yet there was no apparent impact on its sale price.
The transactions referred to as sale 5 in Mr Paton’s valuation involved three separate contracts all dated 15 June 2007 proposing the sale to the same purchaser who purchased the sale 2 property. The contract for part of the sale land comprising 100 ha, which contained the greatest proportion of the poorer land classes, settled on 17 August 2007. The remaining two contracts for the sale of the land with the main house on it together with the best arable land and a reliable irrigation bore, was to settle on 7 October 2008 following a deferral of the date of settlement. According to Mr Paton, the vendors attempted to terminate the two remaining contracts on settlement day and he said that the purchaser is now taking legal action in attempt to have the contracts settled. On that basis, Mr Paton has viewed the transactions comprising his sale 5 basis as being a sale reflecting the market in June 2007. Mr Toohey did not challenge Mr Paton’s comparison between the sale 5 lands at the subject property however submitted that as the transaction had not been completed the sale ought to be rejected.
On the basis of the evidence provided to me it seems quite clear that the sale 5 transactions constitute a sale of the relevant land for the purpose of identifying the value of that land as at 15 June 2007. There was a meeting of the minds on that day.
Sale 4 in Mr Paton’s valuation involved a sale of 203.627 ha in May 2007 at a sale price of $2,200,000. Mr Paton analysed that sale price to an unimproved figure of $1,397,431. He said that the easy irrigable arable red volcanic scrub soil on the sale land is comparable to the flat/easy irrigable arable land on the subject lots 46 and 47, whilst the dry arable scrub on the sale property is superior to that on the subject. He said that the moderate steep scrub soil of the sale is superior to the best forest grazing on the subject, however concluded that overall the sale is inferior to the subject owing to the smaller size of the sale property.
Mr Toohey said that the purchaser of the sale 4 land purchased it largely because it was cleared and, on that basis, it would be more valuable as time went on. He did not challenge the overall comparison of the sale with the subject land as proposed by Mr Paton. He said that the sale land has improved pasture, that it is easier to fertilise than the land on the subject and that there was limited effect of the cyclone on the sale property.
Putting aside for the moment the issue of the cyclone, it seems to me that even if I were to accept Mr Toohey’s criticism of Mr Paton’s sales 1 and 3, the other sales evidence sufficiently supports the conclusion drawn by Mr Paton as to the value of the subject land.
Mr Toohey drew my attention to the decision of this Court in Edwina E Toohey & Anor v Department of Natural Resources and Water[1] where at [72] the learned Member, as she then was, expressed a preference to valuing the arable land on the subject property overall rather than subdividing it into the different types of soil and into dry and irrigable areas as Mr Paton had done on that occasion. Mr Paton repeated that method in the valuation tendered in the present matter.
[1] [2008] QLC 0041.
The conclusion of the Court in the 2008 decision on the evidence presented there is not one that is binding on me on this occasion. It is a conclusion on evidence only and does not express a principle which binds me in any way. On that occasion the learned Member had before her competing views as to the manner in which the valuation ought to be carried out, whereas in the matter before me, I have Mr Paton’s valuation approach only. It is a method that is not inconsistent with principal, hence, in the circumstances, I must place such reliance on it as is consistent with the evidence presented to me overall. That evidence was not such as to lead me to reject reliance upon Mr Paton’s methodology.
It is undoubtedly the case that Cyclone Larry when it visited the subject property on 20 March 2006 created a management and logistical problem for Mr and Mrs Toohey that they would have preferred to do without. It is also clear that in addressing the product of the high winds produced by that category 4 cyclone the Tooheys were driven to expense and inconvenience. By the time of valuation however on 1 October 2007, the cleaning up of the timber damage had all but been completed, a decision being taken that cleaning up the remaining timber was not worth the effort. That is, as at the relevant date for valuation, the subject land had virtually returned to normal. It is that condition which is relevant for the purpose of valuation. Apart from that factor, I note that there was no valuation evidence tendered by Mr and Mrs Toohey to the effect that Cyclone Larry had brought about a reduction in value of the subject land. Indeed, the only valuation evidence relevant to that issue was that produced by Mr Paton’s sale no. 2 which indicated that Cyclone Larry did not have an effect on value of the land sold in that case. Certainly, that sale land involved land that had been substantially cleared and included larger areas of lighter timber than one finds on the subject property. Nevertheless, it was impacted by the cyclone and does not indicate that the sale price was affected by that experience. I acknowledge that Mr and Mrs Toohey would have preferred not to have Cyclone Larry come to their land, and they could well have done without the expense and inconvenience which resulted from that event. Evidence of a convincing nature has however to be provided demonstrating an ongoing reduction in value such that the value would be reduced on account of that factor as at the date of valuation. That evidence was not forthcoming. The situation could be contrasted, for example, with a flood which irreversibly gouged an erosion gully on land or which stripped arable land of its topsoil. Those outcomes comprise substantial permanent damage to land resulting in a clear reduction in value. In the circumstances I dismiss the appeal.
RP SCOTT
MEMBER OF THE LAND COURT
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