Franklin v Valuer-General
[2013] QLC 10
•15 March 2013
LAND COURT OF QUEENSLAND
CITATION: Franklin v Valuer-General [2013] QLC 10 PARTIES: Maurice Franklin
(Appellant)
v Valuer-General
(Respondent)FILE NO: VLA479-10 DIVISION: General Division PROCEEDINGS: Appeal against valuation under the Valuation of Land Act 1944 DELIVERED ON: 15 March 2013 DELIVERED AT: Brisbane DATE OF HEARING: 21 April 2011 HEARD AT: Cairns MEMBER: His Honour, Mr WL Cochrane ORDERS: 1. The appeal is dismissed. CATCHWORDS: Statutory valuation –– unimproved value – improved land – presumption of correctness – evidentiary onus.
Valuation of Land Act 1944
Pajares v State of Queensland [2003] QLC 0044
Commission of Succession Duties (SA) v Executor Trustee and Agency Co of SA Ltd (1947) 74 CLR 358
APPEARANCES: Mr M Franklin in person.
Mr P Prasad for the respondent.
Background
This is the decision in respect of land located at Boyett Road Mission Beach within the Cassowary Coast Regional Council area of Far North Queensland. The land is otherwise described as Lot 1 on RP 712557, Parish of Hull, County of Nares and has an area of 64.31 hectares.
The valuation appealed against was at 1 October 2009 effective from 30 June 2010.
The land was initially valued by the respondent at $177,500 and an objection by the appellant against that valuation was allowed and the valuation amended to $170,000.
The amendment to the valuation was based upon the following reasons articulated by the Valuer-General:
· When compared to similar properties, the delegate decided a reduction in the valuation should be made.
· When compared to sale prices of similar properties, the delegate decided a reduction in the valuation should be made.
· An alteration has been made in the country classification of the property and the valuation has been adjusted.
From that decision dated 10 August 2010 the appellant has appealed and in his Notice of Appeal estimates the unimproved value of the subject land as being $24,000.
In his notice of appeal the appellant identifies the following grounds of appeal:
“1. The unimproved land valuation is not supported by land sales.
2.The unimproved land valuation does not reflect the physical characteristics of the land or the legal, zoning, or market based constraints on the use of the land. DERM has failed to adequately inspect or consider this property. Full attention has not been give to all factors when determining land use. Small areas and topography, and soil types leaves less than 12 hectares for agriculture.
3.The valuation is excessive, inequitable, unreasonable, wrong in law and/or contrary to law. When compared to the Singh properties and others in proximity to this property, the said valuation is, as claimed, since under the Act the valuer is to consider valuations relative to others. The said land has a long dusty road frontage with constant ingress of weeds. The power lines restrict farming requirements. The rear adjoins World Heritage and a vast feral pig population. Urban sprawl is restrictive to common farming practices. DERM has failed to adequately (consider) the effects of the 2031 plan and subsequent government restrictions on the use of land including freehold land. These government laws and regulations have effectively reduced this property to 12 hectares of rural land and prohibited any expansion beyond that. Council restrictions in the 2031 plan deny any latent alternative potential for use for expansion.
The valuation is not supported by (of) adjoining and/or is influenced by sales of individual sites. There are no recent sales of adjoining land. Adjoining land has been sold some time ago and if these sales were used it would support the valuation proposed in the notice of objection. Sales of sites nearby have been for developmental purposes and tend to distort the perception of land values in the area.
4.The unimproved land valuation does not adequately take the value of improvements on the land into consideration.”
At the hearing of this appeal Mr Franklin did not call any evidence from a qualified valuer but did give oral evidence on his own behalf supported by a statement which he had filed and which became Exhibit 1.
The respondent, through Mr Prasad who appeared for them, called evidence from a registered valuer Mr Michael Lawrence Donnelly employed by the respondent department. His report became Exhibit 2.
Legislative Provisions
Because of the date of the valuations namely being effective from 30 June 2010 with a date of valuation as 1 October 2009 this appeal is, pursuant to the provisions of s 268 and s 269 of the Land Valuation Act 2010, to be considered and determined pursuant to the Valuation of Land Act 1944 (VOLA). The relevant version of VOLA is embodied in Reprint No. 9 (B).
Pursuant to s 63(A) of the VOLA the burden of proof lies upon the appellant and the hearing itself is limited to the grounds stated in the notice of appeal. Those grounds are set out in paragraph 6 above.
The Subject Land
The best description of the subject land is that contained within the report of Mr Donnelly.[1]
[1] Exhibit 2 p 3.
Mr Donnelly describes it this way:
“The subject property is situated on Boyett Road approximately 2.3 km by road north-westerly of Mission Beach Post Office, Mission Beach. Moreover the subject property is approximately 29 km north-easterly of Tully, 240 km north of Townsville, 50 km south of Innisfail and 140 km south of Cairns.
Mission Beach is a beach side village located toward the northern end of the tourist region known as the ‘Island Coast’, which is centred on the townships of Bingle Bay, Mission Beach, Wongaling and South Mission Beach. Basic retail, commercial and primary school amenities are available within the ‘Island Coast’ strip, whilst more comprehensive shopping, high school and regional township facilities are located at Tully.”
Access to the subject land is via Boyett and Ohl Roads. Boyett Road is a sealed bitumen strip with grassed shoulders while Ohl Road is a formed gravel road with grassed shoulders.
The subject site is connected to electricity to town water and telephone services.
Again Mr Donnelly’s report contains the best description of the country when he describes it in these terms.[2]
“The subject property is a regularly shaped parcel bounded on the south by Boyett Road, on the east by Ohl Road and the west by Clump Mountain National Park. The subject property comprises predominantly timbered tropical rainforest mountain slope country broken by seasonal gullies, except for cleared areas along the eastern and southern boundary. Recent aerial photography (August/September 2008) indicates that approximately 12 hectares has been cleared and developed for tropical fruit production.”
[2] Exhibit 2 p 3.
In a town planning context the subject site is located in a Rural zone in a Rural Conservation Precinct pursuant to the provisions of the Johnstone Shire Town Planning Scheme which was adopted on 20 June 2005.
The Evidence of Mr Franklin
The evidence of Mr Franklin consisted of his statement which, as indicated above was Exhibit 1 before the Court.
To a very large extent the contents of Exhibit 1 mimic what was contained in the grounds of appeal set out in the notice of appeal.
Early in his evidence[3] Mr Franklin informed the Court that he no longer contended for the $24,000 contained in the notice of appeal as the appropriate value of the subject land but now contends that the valuation should be $50,000.
[3] T1-13 L4.
That information took Mr Prasad by surprise but, it seems, did not change the response of the respondent to the appeal.
The figure of $50,000 comes from page 2 of Exhibit 1 wherein Mr Franklin sets out a calculation showing 12 hectares of arable land valued at 40% of $10,300 per hectare to produce a figure of $49,440. (Rounded up to $50,000).
Those figures are derived from a comparison made by Mr Franklin of a property owned by Mr Ken Campbell and described as Lot 46 on RP 712801.
In regard to that property Mr Franklin says as follows:
“Since there were no recent relevant sales I have sought relativity with properties in this area growing the same crops and arriving at a valuation. The easiest comparison to make is against a similar property or a perfect property and discount from that. The Ken Campbell property L46 RP712801 is the prime example of the latter.”[4]
[4] Exhibit 1 p 2, para 1.
Mr Franklin did not enlighten me as to what he meant by “perfect property” but in any event the calculation that he makes seems to reflect the same valuation exercise as was carried out by Mr Donnelly for the respondent. That is to say, in Mr Donnelly’s Appendix 5 and at page 11 and 12 of his report (Exhibit 2), he identifies and sets out a number of the neighbouring farming properties. Appendix 5 shows the location of those properties in relation to the subject property and the K & H Campbell Pty Ltd property is to the direct east of the subject.
It seems from the evidence that the Campbell property has an area of 16.49 hectares all of which is arable.
One curiosity of the valuation exercise carried out by each of Mr Donnelly and Mr Franklin is that they ignore the presence of dwelling houses and other structures on some of the apparently relevant properties so that no calculation of the sought contemplated by s 3(5) of VOLA can be conducted.
In any event the Campbell property is apparently entirely arable as it is was valued by the valuer at $10,309 per hectare.
Mr Franklin contends that his property has 12 hectares of arable land although Mr Donnelly in his report to which I shall resort shortly says that, having regard to the regional eco-system status mapping which was generated in August 2003, 13.54 hectares of the subject land is cleared and/or disturbed and, it would seem, that Mr Donnelly accepts, based upon recent aerial photography in August/September 2008 that presently approximately 12 hectares of Mr Franklin’s land has been cleared and developed for tropical fruit production.[5]
[5] Exhibit 2 p 4.
Mr Franklin contends that the balance of his land of approximately 52 hectares is of no value whatsoever and accordingly contends that only the value of the arable land should be taken into account.
Nowhere in his report that I can clearly follow (save for the passage quoted above) does Mr Franklin identify the basis upon which he discounts the value of the arable land on his property by 60%. Seemingly, having regard to the material in his statement that discounting factor derives from the characteristics of the land.
The discount emerges in this way according to Mr Franklin:
“The subject land has small irregular shaped fields of various soil types dispersed throughout the property with long difficult access to them, and a long road frontage on two sides with subsequent weed problems. Access on the Boyett Road side is at only 3 points. The fragmented nature of the fields causes a big loss of area to roads and headlands and makes fencing and feral pig control difficult and expensive. The land has undergone levelling, drainage, road works and has underground piping. Taken back to its unimproved state this land is about 40% of the Campbell land value.”[6]
[6] Exhibit 1 p 2.
Nowhere in his statement does Mr Franklin identify the basis upon which that 40% figure is derived. Neither, it seems, does Mr Franklin choose to address any issues relating to improvements on the subject land.
There is nothing in Mr Franklin’s material to indicate what the situation is with respect to the Campbell property save for its shape, soil and road frontages and access.
I have not been informed as to whether there is any levelling or drainage or underground piping on the Campbell property and accordingly am unable to make any proper comparison between the Campbell and Mr Franklin’s property. I note however that if Mr Franklin were to apply the undiscounted value of the Campbell property to the presently developed land on his own property that would produce a figure of $123,600 for the arable area on Mr Franklin’s land (i.e. $10,300/hectare x 12 hectares).
That value would be exclusive of any value being attributed to the balance 52 hectares of Mr Franklin’s property.
With respect to that balance land Mr Franklin asserts as follows:
“The ‘balance of land’ is of no use for agriculture, and cannot be cleared for agriculture, and rather than making a contribution to the farming enterprise costs, money and time to maintain for feral pig control and detection and monitoring of noxious weeds after cyclone Larry these tracks cost (s) about $9,000 to reopen.”
Mr Franklin does not indicate what ‘these tracks’ constitute nor their function on the property.
Mr Franklin goes on to provide details of what he says is a world wide trend evidenced by arrangements in the European Union whereby payments are made to landholders in exchange for managing their land to provide some ecological service.
As laudable and environmentally sensible as such arrangements may be, in my view they have no place in the deliberations I have to make and accordingly I disregard his evidence in that respect.
That will no doubt not placate Mr Franklin who, with respect to the European Union system, observes:
“No such rewards are in place in Queensland. The reverse is true and assigning a value to land not able to be used is a punishment to those landowners who have preserved part of the ecosystem for the future. To reiterate the ‘balance land’ is of no use for farming and a definite handicap and should not be assigned any value.”
There was no evidence that Mr Franklin has attempted to rid himself of the burden of that valueless land by offering it to be incorporated into the adjoining Clump Mountain National Park.
Mr Franklin, in his oral evidence[7], asserted, relatively confidently one might have thought for a person who lives in the vicinity, that Mr Donnelly had it wrong in his appendix 5.[8] The mistake, Mr Franklin asserted, was that Mr Donnelly had interchanged the L & K Barnes land and the Campbell land and had confused the two of them in the plan which constitutes appendix 5 to his report.
[7] T1-19, L1.
[8] Exhibit 2, Appendix 5.
Mr Franklin, as appears in his notice of appeal also wishes to rely upon what he describes as the Billy Singh property.
Of that property he says:
“The Billy Singh property is readily comparable to the subject land. It has fragmented irregular shaped fields has remnant forest, adjoins Clump Mountain National Park, is used for the same crops, have various soil types and the same urban and environmental pressures. It has the advantage of larger fields and area having 11 titles. The assessment using Billy Singh property is as follows:
12 hectares of directly comparable land at $4,300/hectare $51,600”
There is not in his statement, and there did not emerge in his oral evidence, any explanation as to how he derives the figure of $4,300/hectare save that I suspect it was derived from taking a figure of 40% of $10,300/hectare being the valuation on the Ken Campbell property and rounding it up to $4,300 (40% of $10,300 = $4,120).
The valuation of the Singh property which is on 11 titles has an area on 209.5 hectares and according to Mr Franklin attracted a current official valuation of $405,000 generates an average figure of just under $2,000 per hectare. (Actually $1,933.17)
Mr Franklin in his statement[9] asserts that the value of the arable land on the Singh property is (the unexplained) $4,300 per hectare which, applied to his area of 12 hectares produces a figure of $51,600 from which, it seems, he derives his contended figure of $50,000.
[9] Exhibit 1 p 3.
Mr Franklin’s approach to his analysis of the value of the Singh property (which it must be noted when considering the evidence of Mr Donnelly later in these reasons was raised only on the morning of the hearing so that Mr Donnelly was somewhat limited in his capacity to properly respond to the allegations) is clearly premised upon the notion that only the arable land was or should be the subject of the valuation.
That is to say, Mr Franklin has maintained his assertion that the balance land is worth $0.
For the reasons which are set out later in this decision I reject the proposition that the vast majority of either Mr Singh’s land or of Mr Franklin’s land can sensibly be valued at a $0 figure.
It is notable that Mr Franklin’s valuations assessments as set out at page 4 of his report[10] shows that the valuation of the Singh property as contended by Mr Franklin was for the lowest rate per hectare of arable land and that rate was less than half of most of the other rates which he calculated for the value of arable land.
[10] Exhibit 1 p 4.
For example as his schedule at that page 4 shows the Barnes Trust land with a total area of 18.09 hectares which, according to Mr Franklin, has 13 hectares cleared was valued, commensurably with Mr Franklin’s land, at $170,000 with a rate shown in Mr Franklin’s scheduled of $13,100 per hectare.
The Evidence of Mr Donnelly
Mr Donnelly’s evidence-in-chief was comprised of his report which had been filed in the Court together with some short oral evidence clarifying some elements of his report and also responding to the late notified assertions of Mr Franklin.
At the beginning of his evidence-in-chief when I queried Mr Donnelly about the prospect of his having made a mistake in his appendix 5 and he ultimately conceded that he could not be 100% positive that the searches he did had correctly identified the relevant ownership of the land. However, I have formed the view that the mistaken nomination in appendix 5 has not in any relevant way damaged or compromised the conclusions reached by Mr Donnelly in his report and maintained in his evidence-in-chief.
One criticism which I do make of the report of Mr Donnelly is that it fails to make clear in its body or in any appendix to the report just how Mr Donnelly carried out his analysis. It is not, in that sense, a “speaking report” which permits the reader to look in any detail at the calculations and underlying assumptions which must be made to carry out valuation analyses.
Unsurprisingly, given that Mr Franklin was neither a barrister nor a solicitor, that was not an element which he sought to investigate in his cross-examination of Mr Donnelly. Accordingly, there is no proper basis upon which I would set aside the analysed values produced by Mr Donnelly notwithstanding that they were not explained or clarified in his report.
Mr Donnelly gave evidence of having been familiar with the property since 1999 and that pursuant to s 17 of the Valuation of Land Act 1944 Mr Donnelly had carried out his valuation on the basis of the property being a farming property.
As to his sales evidence, recalling that Mr Donnelly in his report pointed to four relevant sales, that was to the effect that he had sought to identify properties with reasonably small arable components to them similar to the subject land.
In contemplation of his sales evidence Mr Donnelly conceded that the subject land had a larger arable component but pointed out that it also had a larger area of balance land.
All of Mr Donnelly’s sales properties were what he called “lightly improved”[11] in so far as there were no particular structural improvements on the property and the most valuable improvement on all of them was the clearing which had taken place. He confirmed that he had inspected each of the sales properties.
[11] T1-39, LL 10-20.
Mr Prasad for the respondent invited Mr Donnelly to comment on some contentions by Mr Franklin in his exhibit 1 where he said:
“Three of the sales chosen are less than 60 hectares and don’t have a large proportion of uncleared land. These properties are not estopped from subdivision under the 2031 Regional Planning Scheme. Hence there is latent value in these properties. There is no indication that any of the properties is engaged in commercial banana or tropical fruit production.”
Mr Donnelly’s response was to say:
“The research that I’ve done from the 2009 -2031 Regional Planning Scheme is that the subject property under all the sales are outside the urban footprint and are in the regional landscape area, so they’re – and with what I know about 2031 is that 50 hectares is the minimum subdivision for parcels designated outside the urban footprint area.”
That accords with my common knowledge about the impact of regional planning schemes and the potential for subdivision of land outside the urban footprint areas.
In response to Mr Franklin’s reliance upon the Singh property Mr Donnelly gave evidence that the Singh property was substantially larger than the subject property and while Mr Franklin contended that it had 94 hectares of cleared land Mr Franklin’s understanding from the departmental records is that the Singh property was valued on the basis of having 64 hectares actually cleared so that even allowing for the sort of analysis done by Mr Franklin his figure of 94 is some 50% larger than it should have otherwise been. (i.e. 94 compared with 64.)
Mr Donnelly rejected, as I do, the proposition that the un-farmable area of Mr Franklin’s property has zero value.
Mr Donnelly said in evidence:
“I could say that all land has value and in the valuation of the subject property the component of non-arable land, its substantial in area and it’s attracted a nominal value of $500/hectare which, … although it cannot be reconciled from the sales evidence there is reference in the report to a 2001 compensation matter where approximately 300 hectares of mangrove country was assessed by the Land Court at $250/hectare.”
That Case is Pajares V State Of Queensland[12]
[12] Pajares v State of Queensland [2003] QLC 0044 (June 2003).
It should be noted immediately that Pajares was a resumption case not a valuation case. In the Pajares case the valuer for the dispossessed landowner contended that entirely unusable mangrove land was valued at $775 per hectare but provided no basis for that opinion. The valuer for the respondent department contended for $250 per hectare because of the lack of utility in the land and the statutory restrictions preventing development.
The only real comfort I take from that decision is confirmation of the notion that such restricted land still has some value.
I note that the resumption occurred nearly a decade before the relevant date for the valuation exercise which I must carry out here, i.e. a resumption in 19 November 1999 compared to a valuation of land as at October 2009.
I accept that the market would have changed substantially in the decade between the Pajares exercise and the current one.
At the end of the day I am left only with credible evidence from Mr Donnelly that the value of the unusable uncleared land is $500 per hectare and I accept that figure.
In any event Mr Donnelly in his report[13] informs the Court as follows:
“Smaller non-arable balance lands have been valued at $500 per hectare throughout farming land valuations in Cassowary Coast Regional Council Local Government area with a lower rate applied per hectare for areas of balance land greater than 100 hectares.”
[13] Exhibit 2 p 11.
If that is correct and I accept the assertion by Mr Donnelly in that respect then to disturb that valuation would, in my opinion, upset the relativities between the subject land and all other land in the Cassowary Coast Regional Council Local Government area. I am disinclined to do that.
In presenting his evidence and in support of his valuation Mr Donnelly identified four relevant sales. I shall deal with each of those in order.
Mr Donnelly’s sale number 1 is of land located at Gullotta Road on the Walter Lever Estate. It has an area of 65.377 hectares and on 4 October 2009 sold for $375,000 or $5,736 a hectare.
Mr Donnelly’s analysed unimproved value of that property, which was improved with underground piping, gully crossover and clearing, was $235,000 which he said reflected 17.9 hectares of developed country at $11,800 per hectare and 47.477 hectares of steeply sloping tropical rainforest covered mountain broken by seasonal creeks and gullies which he valued at $500 per hectare on an unimproved value basis.
Sale number 1 had no services connected and the arable country on it was broken by gullies. It did however have significant internal drainage.
Mr Donnelly’s sale number 2 was for land located at Bob Road Mourilyan Harbour. That land is described as Lot 2 on SP 211119 Parish of Mourilyan and has an area of 12.049 hectares. It sold on 5 August 2009 for $265,000 or an average of $21,994 per hectare.
Mr Donnelly describes the property as having been improved with residual cane stool an unequipped bore, and some clearing.
He analysed that to $176,000 reflecting 12.049 hectares at $14,607 per hectare on an unimproved basis.
In Mr Donnelly’s opinion[14] that sale number 2 was a property he considers to be inferior to the subject on an overall value basis and on an arable rate per hectare basis.
[14] Exhibit 2 p 8.
He relies upon sale number 2 as providing comparable evidence on the basis of its similar arable area.
Mr Donnelly’s sale number 3 was for land located at NewHarbour Line Road, NewHarbour Line near Mourilyan and otherwise described as Lot 2 on SP 121916 Parish of Mourilyan.
Sale number 3 had an area of 21.07 hectares and sold on 8 July 2009 for $300,000 reflecting an average price of $14,238 per hectare.
That property, like sale number 2, was improved with residual cane stool and clearing.
Mr Donnelly’s approach analysed the sale number 3 land to a value of $178,000[15] (approximately) reflecting the 19.75 hectares of developed country and $8,980 per hectare and 1.32 hectares of creek and creek bank valued at $500 per hectare on an unimproved value basis. Like the subject land sale number 3 has electricity and town water available and a dual road frontage.
[15] Exhibit 2 p 9.
Mr Donnelly relies upon sale number 3 as similar to the subject property on an overall value basis with a larger area of arable country effectively offset by the larger balance land area of the subject.
Mr Donnelly’s sale number 4 is of land located at 1367 Old Tully Road, Maadi otherwise described as Lot 247 on NR 1505 Parish of Hull.
Sale number 4 has an area of 12.022 hectares and sold on 5 May 2009 for $210,000 reflecting an average of $17,468 per hectare.
Sale number 4 was overgrown former cane land which had apparently been turned to Rural Residential use which was the basis upon which Mr Donnelly informed the Court he had carried out his valuation.[16]
[16] Exhibit 2 p 9.
In his report Mr Donnelly says of sale number 4 that:
“The sale has been included to reflect additional small farming evidence and has been analysed to $172,000 (approximately) reflecting 8.13 hectares of potential developed country at $20,916 per hectare and 3.892 hectares of timbered areas and gullies at $500 per hectare on an unimproved value basis.”[17]
[17] Exhibit 2 pp 9-10.
Mr Donnelly considered sale number 4 to be inferior to the subject land on an overall value basis with its markedly smaller overall and arable areas than the subject land.
On balance Mr Donnelly came to the view that sale 2 was the most comparable sale although he reminded the Court that he regarded sale number 2 as being marginally inferior to the subject land.
The comparison between sale number 2 and the subject set out at page 10 of Mr Donnelly’s report reflects an applied value in respect of sale 2 of $11,950 per hectare and an applied net arable rate (after allowance) of $12,000 per hectare for Mr Franklin’s property.
I accept that the small difference of $50 per hectare reflects Mr Donnelly’s view that sale number 2 is marginally inferior.
This Court cannot act upon whim or upon sympathy for an appellant. My function is to attend to the evidence, interpret it and apply it in making a determination.
With respect to the value to the arable area of Mr Franklin’s property I do not consider that any of the evidence which has been adduced before me is such is to warrant displacing the approach adopted by the respondent, confirmed by Mr Donnelly and articulated under oath before the Court.
Accordingly, I record that I have come to the view that the valuation of the arable portion of the subject land contended for by Mr Donnelly will remain unchanged.
That is to say, that I have come to the view that the evidence before me supports a contention that the net arable land should carry a valuation which reflects $12,000 per hectare after making some allowance for the workability of the arable area.
As to the value of balance land Mr Donnelly contends that it should be valued at $500 against Mr Franklin’s contention that it is worthless and should be valued at $0.
Mr Donnelly’s response to the proposition that it is “valueless” was to reject the notion and to observe that all land has some value and indeed the balance land forms part of the whole land holding in respect of which the valuation was made so that the valuation exercise involves ascribing a value to the arable land and adding to that arable land value an ascribed value for the unusable but present land.
Apart from contending that it was of no value and, faintly, arguing that something like the European community system of valuing environmental gestures of conserving land Mr Franklin did not, in any effective way, advance an acceptable argument for his $0 value.
I have some difficulty with the $500 per hectare value allowed by Mr Donnelly but none of the cross-examination by Mr Franklin displaced or discredited the approach taken by Mr Donnelly and accordingly I have come to the view that the value is an appropriate one.
Moreover, Mr Donnelly’s evidence was to the effect that adjoining properties nearby had had similar values attached to them (including the Singh property upon which Mr Franklin wished to place such weight).
Mr Donnelly gave evidence that the $500 a hectare figure is “the normal rate applied to, what we designate as balance lands, in all the farming valuations that are carried out in the Cassowary Coast Regional Council area.”[18]
[18] T1-44, L10.
The Pajares decision upon which Mr Donnelly sought to rely is, as I observe above, a resumption case.
Traditionally the values ascribed to land taken by way of resumption includes some generosity towards the dispossessed landowner (the “liberal estimate”[19]) whereas the valuations traditionally ascribed to land the subject of appeal against the official valuation for rate and land tax purposes are more conservatively cast.
[19]See Dixon J in Commission of Succession Duties (SA) v Executor Trustee and Agency Co of SA Ltd (1947) 74 CLR 358 (at 374).
In response to questioning from myself Mr Donnelly accepted that his approach had been simply to double the figure that was applied in the Pajares case.
It is difficult to determine from the Pajares decision the element of generosity towards the dispossessed landholder.
Such generosity is of course to be contemplated within the realm of sensible but not extravagant allowances.
In the present case however, there is no evidence before the Court which would allow me either to disagree with the valuation found in the Pajares case or to upset the allowance made by the respondent in respect of the $500 a hectare figure which has been applied to all of the farming valuations in the Cassowary Coast area.
Other appellants may, upon the marshalling of appropriate and compelling evidence, be able to convince the Court in another appeal that the $500 figure is erroneous. However, at the present time, there is no evidence which would allow me to set that approach aside. Accordingly, I confirm that I accept the valuation of Mr Donnelly and confirm the valuation contended for by the applicant in the sum of One Hundred and Seventy Thousand Dollars ($170,000).
Having considered all of the evidence both written and oral I have come to the view that Mr Franklin has failed to discharge the onus imposed upon a landowner appealing against a valuation by the Valuer-General to demonstrate pursuant to s 63A of the Valuation of Land Act that the valuation is incorrect and should be changed. Accordingly, I dismiss the appeal.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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