Foster v Chief Executive, Department of Natural Resources
[1997] QLC 193
•12 December 1997
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BRISBANE
12 DECEMBER 1997
Re: Appeal against Annual Valuation -
Valuation of Land Act 1944 -
Valuation Roll No: 1405
Local Government: Murilla (AV97-70)
Graham A and Vivienne F Foster
v.
Chief Executive, Department of Natural Resources
(Hearing at Dalby)
D E C I S I O N
Background:
This matter relates to a property at Mantovas Road, Dulacca, and described as Lot 14 on Crown Plan BWR171, and Lot 16 on Crown Plan BWR156, Parish of Bogandilla. The subject has an area of 907.657 ha, and is located approximately 17 km north of the township of Dulacca. The key issues are the nature of the land, the type of timber and soils, and the potential productivity of the subject.
The subject fronts Mantovas Road which is formed gravel. Access to Dulacca is via 6 km of gravel along Mantovas Road, 5 km of gravel along Dulacca North Road and then 9 km of bitumen to Dulacca. Electricity and telephone are connected to the property. Bogandilla Creek passes through the property. The subject is zoned "Rural A" under the Town Plan of the Murilla Shire Council of 28 April 1962, and effective at the date of valuation of 1 January 1996. The subject is developed and used for grain growing and for grazing purposes.
The Chief Executive, Department of Natural Resources (DNR) issued a valuation on 11 March 1996 at $27,000. Following an objection, and a field inspection of the subject, the Chief Executive reviewed that figure and amended the valuation to $31,000 on 19 March 1997. The appellants have now appealed that figure, claiming the correct valuation should more properly be $37,000. At the hearing on 7 October 1997 the respondent reassessed his value, leading now a revised unimproved value of $34,000.
Mr GA Foster appeared and gave evidence for the appellants. Mr E Zander appeared for the respondent, calling evidence from Mr SL Hoadley, the departmental registered valuer responsible for determining the valuation.
The Nature of the Land:
Mr Foster argues that his concerns are not primarily associated with the unimproved value of the subject, but more with a correction to the current departmental classification of the land descriptions of the subject. He notes that following a further evaluation by the Department, he basically now approximately agrees with the broad break-up of the land types.
Mr Hoadley has classified the property as comprising:
·345 ha (38%) - poplar box, sandalwood along the creek, with some brigalow and belah towards the west;
·219.5 ha (24%) - gumtop box forest with mixed soils and brigalow, belah, wilga and poplar box.
·121 ha (13%) - forest country of gumtop box, merging to bulloak and ironbark.
·222.2 ha (25%) - poor forest country, mostly sloping, with some ironstone ridges, predominantly timbered with ironbark, pine, bulloak and wattle.
He further classifies the land as approximately:
·390 ha under cultivation;
·375 ha previously mechanically cleared and now used as grazing;
·142.7 ha uncleared.
Mr Foster feels that the nature of the land is more like:
·407 ha (45%) - poplar box and belah;
·246 ha (27%) - mallee box and brigalow;
·254 ha (28%) - ironbark and pine.
Mr Foster's concerns were heightened when he became aware of a departmental report of 18 December 1960, which has, according to him, incorrectly classified the subject, and which suggested that there were large areas which were not really suitable for farming. Those conclusions, he argues, are at odds with his own experience and also in conflict with descriptions of the land noted on a surveyor's plan of the subject in 1908.
The surveyor's plans BWR156 and BWR171 show the description of the country along the surveyed boundary lines, and indicate areas of dense brigalow in the north-eastern corner of Lot 14, and at the north-eastern and south-western corners of Lot 16. As a consequence of this apparent misdescription of the property in 1960, Mr Foster now finds he has difficulty in raising finance to develop the land. He has a concern that the departmental record may have been used by other parties to obtain an incorrect appreciation of the nature of the land. Mr Zander was not aware that any other person had sought access to the departmental record.
Mr Foster, on request of the Department, has obtained copies of the departmental report of 1960, which classified the country consistent with that adopted by Mr Hoadley. Mr Foster, while generally agreeing with the overall areas of description, feels his "fringe country", containing mallee box, has greater potential than has been allowed for by the valuer.
As a consequence of his objection against the valuation, the subject was further inspected by Mr Hoadley and Dr B Slater (a soil scientist), and later by Mr A Biggs (a land resource officer). As a result of those further inspections, the potential of the country was upgraded and the valuation increased initially from $27,000 to $31,000, and then later in 1997 from $31,000 to $34,000.
The description has now been amended to "crop assisted grazing country in the mallee box or gumtop box areas". Following his detailed inspections of the soils, Mr Biggs indicated that the country was of "reasonable quality and was suitable for pasture growing", although not on a continual cropping basis. Mr Biggs also noted that the soils on most of the subject were impacted by salt boulders at depth which affected the available plant water capacity and the long-term cropping of the land.
In respect of his assessment of the land description, Mr Hoadley conceded that he had initially made some assumptions about its development capacity, based upon his previous experience of similar country. However, on further inspections he had been prepared to upgrade his previous assessments. He agreed that it was possible that public perceptions also influenced his decision to value the crop assisted grazing gumtop box country as less than other crop assisted grazing lands. He also confirmed that Dr Slater had upgraded his views of the subject following more detailed knowledge of the land.
Nature of the Timber:
A key issue in this matter is the appellants' argument that generally the influence of mallee box country in the Dulacca area is not widely understood. As a consequence of that public perception, he argues that it is not generally accepted that mallee box often occurs in conjunction with ironbark, or belah and brigalow, and the presence of mallee box is often overlooked in describing the general timber species in those areas. However, the mallee box country has often demonstrated better potential than ordinary box country.
In drawing comparison of development costs between mallee box and brigalow, Mr Foster argues that once the timber is pulled and burnt there is little difference between the two types, although brigalow is a little richer. Mallee box is best ploughed when the soil is dry and not when wet. However, he also argues that the mallee box often has more grass than the brigalow, as mallee box does not suffer to the same extent from regrowth as does brigalow. Both species, of course, need maintenance involving cutter barring and blade ploughing.
Mr Hoadley agrees that during his inspection of the subject he had seen a mixture of mallee box and belah, similar to that shown on the old survey plan of 1908. Mr Foster argues that there is often a confusion in public perception which leads to a generalisation of mallee box, which is often confused with gumtop box. As a result of this confusion, the description of mallee box country is often taken to represent lower grade land. Mr Foster provided photographs of the pulling of mallee box upon the subject which is interspersed with pockets of brigalow and belah.
Mr Foster argues that brigalow takes a lot of regrowth maintenance to bring to seed bed stage, while mallee box, if maintained, will grow good crops and pastures. Therefore, in his opinion, mallee box is not as dear to develop as brigalow. He also acknowledges that mallee box takes some time to produce good crops, as it is not as rich when first pulled, because the tall-standing timber has tended to take a lot from the soil. He has found an application of only 30 kg per ha of MA fertiliser provides good growth and demonstrates that the country is not poor. However, he agrees that the public perception is that brigalow is better areas for grain growing.
In support of his argument Mr Foster notes that there is good mallee box land being developed in the Miles area at Columboola. He personally undertakes a lot of contract clearing in the area, and apart from five properties including Ryan's property, some amongst brigalow and belah on Davies' property, the only other areas are amongst small pockets of brigalow and belah in the Bendemere Shire. The specific location of those areas was not clarified for the Court, but it was clear that the existence of similar mallee box to the subject was very restricted. In comparing his mallee box country to the better country in the Murilla Shire, Mr Foster claims his land is equivalent to about 80% of the capacity of those other lands. He claims that in the merging country the mallee box appears below the ironbark ridges but higher than areas of poplar box flats.
Nature of the Soil:
In considering the soils of the subject, Mr Foster claims that the capacity of the soils has been underestimated. Where it previously had been shown from the departmental file as "not really suitable for cropping", he currently is raising good crops. He also claims that often Department of Primary Industries' (DPI) descriptions are influenced by the existence of golden wattle, which, when associated with mallee box, is often on soils where there is potential for deep rooting capacity. The appellant has personally found that with watering by spray irrigation he has achieved "huge growth" in his crops. He provided photographs of good crops, albeit some had suffered damage from severe frost.
Mr Foster claims that the appearance of the soils can also be misleading to the inexperienced observer. He believes it is unwise to simply rely on the types of trees as the only guide to the nature of the land, and an observer must also look closely at the soils. He claims that where mallee box grows tall, the country is often good.
Mr Foster also noted that mallee box does not require a lot of fertiliser, and he has grown sorghum on mallee box land which has been cleared and maintained for 14 years. However, he believes that good brigalow land also requires some fertiliser in order to maintain fertility and, in that respect, the mallee box areas have no greater need for fertiliser. He claims he can effectively grow grain and fodder crops on the mallee box land, which does not require gypsum in comparison to the poplar box flats which do.
There was some discussion about consistency in descriptions between the broad-scale soil mapping by DPI, and the more detailed descriptions determined by DNR. It was agreed that the broad soil mapping would not show localised areas, and for those reasons the DNR mapping should be the more reliable information. For that reason Mr Foster argues that it is all the more important that the DNR records be updated to show the correct understanding of the mallee box country, otherwise the casual observer could adopt the broad soil mapping as definitive of the subject.
In respect of a detailed examination of the soils, it was agreed that Dr Slater had assessed the subject soils to determine their suitability for cropping. Evidence of Dr Slater's report (27.10.96) notes that "there is no soil group in the published documents which is exactly like those we observed". He concludes that much of the area "currently cultivated for crop production ... is suitable for crop production with moderate limitations". There was also evidence of subsoil rich gypsum, which could ameliorate surface structure problems. Dr Slater also assessed the plant available water capacity to be in the range of 100 to 140 millimetres, which is classified as "moderate". The report also noted that the better soils on the subject are similar to the moderately deep clay soils in the Dulacca district, which are classified in the Land Management Manual as "moderately suitable for cropping". The soil samples examined by Mr Biggs were described as Dulacca, Arden, or unknown. Mr Biggs' description follows a technical analysis and he has based his professional opinion on those facts.
Overall it would be reasonable to conclude from those tests that the subject could grow average grain or pasture crops for the district, and as recorded by DPI (14.12.95) "the average farm yields for the shire be used as the basis to assess Mr Foster's property". Mr Forster supports that view, claiming that once mallee box is cultivated, the soil will only develop a light surface crust similar to Ulimaroa soils. With good management of the soil, the soil displays some self-mulching capability, and good crop results can occur even in dry times.
Comparison of Sales:
Mr Foster provided no direct comparison of sales of similar land, arguing entirely on a reassessment of the land description of the subject. Mr Hoadley advised that there were no recent sales which reflected a true fair transaction of similar country. Mr Hoadley noted that a number of sales had occurred in the locality, but those had been rejected because they were tainted and reflected adjacent adjoining owners, or over-anxious vendors in financial difficulties. Because of those constraints, Mr Hoadley compared a sale from the year prior to the relevant period as follows:
·Sale - "Dundee" - (Lots 2 and 3 on Plan BWR668). (Anvisor Pty Ltd to Davies).
This is located about 40 km south of Miles, and has an area of 944.3 ha. The sale comprises 730 ha (77%) of good agricultural brigalow belah scrub, and 214.3 ha (23%) of crop assisted grazing box and belah forest.
The sale sold in June 1995 for $720,000 which, after allowing for improvements, was analysed at $160,000 ($170 per ha). The sale was seen as superior in quality, access and situation to the subject. The sale is vastly superior.
The sale has bitumen access, is relatively flat, little regrowth and in a good grain-growing area. By comparison the subject has gravel access, is further removed from Miles, has problems with slope and contouring, some regrowth with wattle, and part of the property is not seen as "accepted cropping land". When comparing the subject to the sale, Mr Hoadley has considered the general market for rural lands in the Murilla Shire and assessed the subject at an unimproved value of $34,000 (or $37 per ha).
Mr Hoadley advised that there was no movement in the market during the relevant period. In Mr Hoadley's opinion a prospective buyer would tend to assess the subject at something less than poplar box country. However, he agreed that the full potential of the subject would not be appreciated until the land was developed, and "it would be seen to be producing".
Decision:
In the context of the Valuation of Land Act this matter is somewhat different than the normal type of case where the appellant appeals the quantity of the valuation, seeking a reduction, generally in order to ameliorate the rates paid to the local Council. In the current matter the appellants argue that the current low unimproved value has a serious impact upon their ability to finance development plans for the subject.
In that respect I note that the valuation by the Chief Executive is in fact undertaken only for the purposes of establishing revenue responsibilities, either for rating by the local Council, or for land tax purposes. If some other organisation such as a finance body, should use the unimproved value for some other purpose, they do so at their own risk. However, I can understand that as the unimproved values are widely known in the community, by virtue of their public display during the valuation process, there may be circumstances where other parties use the valuations for a purpose for which they are not designed.
In the context of this matter, however, I am constrained by the requirements of the Act in establishing the correct unimproved value. In that regard I look to the description of the land, and note that generally the parties are not far apart, and for the purpose of this valuation I will adopt the appellants' estimate of:
45% - poplar box and belah
27% - mallee box and brigalow
28% - ironbark and pine.
In the context of the impact of the mallee box country, I note that Mr Foster has had 14 years of development and cultivation of the subject, and displays a record of apparently successful growth of crops on the mallee box land. He has a wide understanding and experience of the limited existence of comparable mallee box country in the district. From the evidence of Dr Slater and Mr Biggs, the potential of the subject would appear to have been initially underestimated, certainly by the 1960 departmental report.
Mr Hoadley clearly has placed some initial emphasis on that report. Subsequently, as Mr Hoadley, Dr Slater and Mr Biggs further examined the subject, they have all reassessed their appreciation of the potential of the land. I accept those views from technical experts and find that the description of the land has previously been underestimated, and is now assessed as land which is moderately suitable for cropping with moderate limitations.
In seeking comparison of the improved value of the subject, I note that the only sales evidence was supplied by Mr Hoadley, which is a vastly superior sale. In the absence of any corresponding sales evidence from the appellants, I will accept Mr Hoadley's revised estimate at $37 per ha, or $34,000.
In the context of the Valuation of Land Act the onus of proof rests squarely with the appellant:
"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."
While the appellants have demonstrated that the nature of the land has in fact a greater potential than previously realised, the agreements by the respondent to initially vary the valuation from $27,000 to $31,000, and now finally to $34,000, makes allowance for that increased understanding of the land. Without further evidence of sales of comparable properties, it would be imprudent to increase the valuation further at this time.
Conclusion:
Having considered the whole of the evidence, I find the appellants have proved their case. The unimproved value as determined by the Chief Executive at $31,000 is set aside, and the unimproved value of Lot 14 on Plan BWR171 and Lot 16 on Plan BWR156 is determined at Thirty-four Thousand Dollars ($34,000).
NG DIVETT
MEMBER OF THE LAND COURT
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