Galwey v Department of Natural Resources and Mines
[2002] QLC 73
•18 September 2002
LAND COURT OF QUEENSLAND
CITATION: Galwey v Department of Natural Resources and Mines [2002] QLC 73
PARTIES:John S Galwey; Kate B Galwey; Jane B & Susan B Galwey
(applicants)
vChief Executive, Department of Natural Resources and Mines
(respondent)
FILE NOS:AV2001/0271; RV2001/0278 (previously AV2002/0278); AV2001/0346 and AV2001/0347
DIVISION: Land Court of Queensland
PROCEEDING: Appeals against Unimproved Valuations – Shire of Bungil – Valuation of Land Act 1944
DELIVERED ON: 18 September 2002
DELIVERED AT: Brisbane
HEARD AT: Roma
MEMBER Mr RE Wenck
ORDER: 1. Appeal AV2001/0271
The appeal is dismissed and the valuation of the Chief Executive in the amount of Four Hundred and Ninety-five Thousand Dollars ($495,000) as at 1 October 2000 affirmed.
2. Appeal RV2001/0278
The appeal is dismissed and the valuation of the Chief Executive in the amount of Fourteen Thousand Dollars ($14,000) as at 1 October 2000 for rental purposes, affirmed.
3. Appeal AV2001/0346
Pursuant to s.66(b) of the Valuation of Land Act the valuation of the Chief Executive in the amount of $40,500 is set aside and the unimproved value as at 1 October 2000 determined in the amount of Forty-nine Thousand Dollars ($49,000).
4. Appeal AV2001/0347
The appeal is dismissed and the valuation of the Chief Executive in the amount of One Hundred and Ninety-five Thousand Dollars ($195,000) as at 1 October 2000 affirmed.
CATCHWORDS: Statutory Valuation - Valuation of Land Act – prosecution of appeal – ease of access to Land Court – self representation – merely filing affidavit unsatisfactory if evidence challenged.
Statutory Valuation – Valuation of Land Act – annual valuations – mass valuation methodology does not offend Statute – factorised adjustments – heavy reliance on correctness of established relativity between valuations.
Statutory Valuation – Valuation of Land Act – Section 66 – Land Court may increase amount of valuation.
Practice and Procedure – Valuation of Land Act – prosecution of appeal – non-appearance of appellant – affidavit evidence only – when evidence challenged no assistance to Court.
Practice and Procedure – Land Court Act – Section 36(9) – preliminary conference – evidence of anything said or any admission – not admissible without consent of parties.
Practice and Procedure – Land Court Act – Section 7 – Land Court not bound by rules of evidence – equity, good conscience and the substantial merits of the case – without regard to legal technicalities.
APPEARANCES: Applicants unrepresented
Mr K Fisher, Barrister, Crown Law, for the respondent
These four appeals are against unimproved valuations of lands in Bungil Shire, comprising or run in conjunction with the "Stuarts Creek" aggregation and made by the chief executive as at 1 October 2000.
The lands to which Appeals AV2001/0271 and RV2001/0278 refer are owned by John S Galwey and are described as follows:
AV2001/0271 – Lot 188 on Plan WV1462 (non specific) Reserve 229: TL213181, Parish of Hodgson, Lots 1 and 2 on Registered Plan 107681, Lots 40 and 41 on Plan WV1240, Lot 59 on Plan WV1524, Lot 42 on Plan WV684, Lot 54 on Plan WV743, Parish of Bindango, Lot 164 on Plan WV1426, Parish of Hodgson, Lot 19 on Plan WV293 and Lot 18 on Plan WV294, Parish of Orallo, Lot 280 on Plan WV536 and Lot 2 on Plan WV831, Parish of Bungiwogari, County of Waldegrave.
The total area of this aggregation is 6,236 ha.
The valuation appealed against is $495,000. In the Notice of Appeal the owner's estimate of unimproved value was $395,000.
RV2001/0278 – Lot 188 on Plan WV1463 Term Lease 213181, parish of Hodgson, County of Waldegrave, containing 87.008 ha.
The valuation appealed against is $14,000. In the Notice of Appeal the owner's estimate of unimproved value was $5,511.
The land to which Appeal AV2001/0346 refers is owned by Kate B Galwey and is described as Lot 58 on Plan WV1522, Parish of Bindango, County of Waldegrave, containing 492.01 ha.
The valuation appealed against is $40,500. In the Notice of Appeal the owner's estimate of unimproved value was $32,500.
The land to which Appeal AV2001/0347 refers is owned by Jane B and Susan B Galwey and is described as Lot 46 on Plan WV1526, Parish of Bindango, County of Waldegrave, containing 1,631.703 ha.
The valuation appealed against is $195,000. In the Notice of Appeal the owners' estimate of unimproved value was $155,000.
As was the situation with Appeal AV2001/0331, by CJ & RBM Jackson, the decision in which is also published today, the appellants in these matters had employed an agent Mr Alister FM Boyd, to assist them in the objection and appeal process. That had included a Court-supervised preliminary conference.
Mr Boyd advised the Court by way of a statutory declaration that these appellants had decided to proceed with the hearing of the appeals when the expectation of a positive result from the preliminary conference was not forthcoming. The appellants believed that the adjustments sought to the valuations should be regarded as relatively simple matters which had not warranted expenditure on legal or valuation representation at the hearing. It had been decided that the appellants' cases required nothing more than presentation of their testimony by way of a sworn affidavit, under the hand of Mr JS Galwey. That affidavit had been filed in the Court and served on the respondent prior to the hearing.
It was known by Mr Boyd at the time he made the statutory declaration that Mr Galwey would be unable to attend the hearing for personal reasons and the Court was advised accordingly. The reason may have been sufficient for an application for adjournment of the hearing to be successful but no such application was made. As it happened, Mr Galwey made contact with the Court the morning after the hearing of the matter had commenced querying whether his attendance would assist the Court. However by that time the hearing was near finalized and there would have been insufficient travelling time available for him to attend.
At the outset, Mr Fisher, counsel for the respondent, made an application for Appeals AV2001/0271, RV2001/0278 and AV2001/0347 to be struck out for want of prosecution and sought an order for the appellants to pay the respondent's costs in those matters. In the unusual circumstances, and subject to what will be said later in these reasons, it was found that the Court could accept the relevant affidavit as the appellants' attempt to prosecute their cases and the application for costs was denied.
As was the case initially in the Jackson appeal there was an inherent objection by the respondent to any part of the contents of the affidavit which made reference to matters discussed at the Court-supervised preliminary conference. That would be a valid objection pursuant to s.36(9) of the Land Court Act 2000. However, as in the Jackson matter, the respondent was prepared to consent to the affidavit being tendered in its original form if the Court was prepared to grant leave to hear expert valuation evidence additional to that contained in the exchanged report, with particular reference to Appeal AV2001/0346.
As a consequence the affidavit was accepted as an exhibit and leave granted for the additional evidence to be given.
It is seen as necessary to make comment about the approach which the appellants and their agent had chosen to take in not presenting themselves for examination as to the veracity of the contents of the relevant affidavit. In those circumstances, the evidentiary weight which can be attributed to those contents once challenged is so limited as to be of little, if any, assistance to the Court. If an appeal has merit this type of prosecution of the case is unsatisfactory. With the extent of assertions made in the affidavit, the rebuttal considered necessary by the respondent proved to be a laborious task.
Para 9 of the affidavit contained the following:
"I am fully aware that this course of action is an unusual practice, but the issues are so clear, the expenditure of thousands or maybe tens of thousands of dollars on private valuation evidence and legal representation is in my opinion not warranted. These are not complex cases. All I seek is an adjustment to the valuations by virtue of the valuer admitting he had made certain errors or omissions in relation to certain vital characteristics of the subject land."
This Court has a well-known policy and no doubt one well known to Mr Boyd, of affording owners aggrieved by decisions of the chief executive, easy access to its appeal procedure. That policy then extends to considerations relevant to the awarding of costs against one or other of the parties involved in these disputes pursuant to the Valuation of Land Act. (See Bowden v. Valuer-General (1980-81) 7 QLCR 138). In many cases appellants appear on their own behalf on the basis that they are seeking to assist the Court in determining the merits of their grounds of appeal. If the issues were to be so clear as is suggested in the affidavit, and the cases not complex, self-representation would have been a relatively simple task with the assistance of the Court. In that way the cost of presentation of the case would have been minimal to the appellants.
Ease of access to the Court and considerations of the merits of an appeal and indeed any application for costs against an unsuccessful appellant is not intended to extend to an appellant doing no more than filing sworn affidavits containing assertions which could be capable of providing evidentiary weight only when those assertions are unchallenged.
As will be seen here, not only were many of the assertions in the affidavit challenged, but in Appeal AV2001/0346, the investigations which the chief executive's valuer had found necessary in presentation of the respondent's case, caused evidence to be led to a higher valuation than that appealed against. That evidence will be addressed later.
The affidavit material, the evidence of the respondent's valuer Mr DA FitzGerald and the findings with regard to the several appeals are now dealt with individually.
Appeal AV2001/0271 – 6,236 ha – valuation appealed against $495,000 ($79.37/ha).
This aggregation comprises northern and southern severance areas about 4.5 km apart.
The appellant asserts that at the Court-supervised conference Mr FitzGerald had informed the Judicial Registrar that "no allowance had been made for severance in the valuation of this property." Mr Galwey then stated "I am informed by my Authorised Agent that in recent cases before the Land Court based on the evidence of the valuers, allowances have been a factor … where severance was an issue." Reference was made to "the practical difficulties caused by the severance of these split blocks, similar to those recognised by the valuers and the Land Court in appeals in Aramac Shire, and Paroo Shire". Those decisions were interpreted to suggest that in this case "an allowance of 3.5% would seem appropriate" and the appellant was now contending for a valuation of $470,250 ($75.41/ha).
It was also asserted that Mr FitzGerald had altered an estimate of carrying capacity on this land from one beast to 4.5 ha to one beast to 7 ha.
Mr FitzGerald's evidence was that the previous valuation of the property had been reduced on objection from $415,000 to $395,000 for reasons which he understood related to a reclassification of some of the country at that time. For the October 2000 valuation some 10 sales of properties had been considered to provide basic evidence in support of an overall increase of 25% throughout the Bungil Shire grazing lands, based on the level of the earlier valuation of those lands.
Brief details of the sales which Mr FitzGerald had included as basic evidence for the valuation appealed against in this matter are as follows:
1."East Lynne" – 4,735.23 ha – 14 September 2000 – analysed unimproved value $25.52/ha, applied unimproved value $25.07/ha – described as vastly inferior to the subject land.
2."Pony Plains" (Taroom Shire) – 4,003.593 ha – 9 May 2000 – analysed unimproved value $211/ha, applied unimproved value $210/ha – described as superior location, access, country and rainfall, similar natural water, smaller property, overall superior on a rate per ha to the subject land.
3."Goldsbrough/Lanreef" – 6,132 ha – 13 December 1999 – analysed unimproved value $314/ha, applied unimproved value $104.88/ha – described as comparable location, access, country, rainfall, natural water and size.
4."Sandlewood Valley" – 2,821 ha – 26 November 1999 – analysed unimproved value $33.02/ha, applied unimproved value $31.54/ha – described as slightly superior access and rainfall, similar natural water, inferior situation and significantly inferior country, of smaller area.
It is clear that Sales 1, 2 and 4 are of country not directly comparable to the subject aggregation overall. Sale 3 adjoins the southern severance and is of comparable, if not slightly superior country to the subject aggregation overall. While Mr FitzGerald saw the sale as offering some support, it clearly was not applied as evidence of value for application in the valuation of the sale property itself and is of no real assistance in this matter.
However, the dispute in this matter relates to the narrow issue of the effect of the severance between the block to the north originally known as "Stuarts Creek" and the original "Koala Park" to the south.
The affidavit evidence asserts first that Mr FitzGerald had altered the estimate of carrying capacity and second had made no allowance for the severance.
The first assertion was made on the basis that information provided to the owners, apparently through Mr Boyd, contained an estimate of carrying capacity of one beast to 4.5 ha overall. In his oral evidence, Mr FitzGerald said that the estimate of one beast to 4.5 ha should have applied to the "Koala Park" severance, while the estimate for the northern severance had been about one beast to 10 ha and a conservative overall estimate of one beast to 7 ha had been adopted for the aggregated parcels.
Second, Mr FitzGerald's oral evidence was that while no allowance for severance had been specifically identified in the valuation methodology adopted (a factorised increase over the previous valuation), he was confident that the overall rate adopted in the valuation recognised all factors relative to the property including the severance issue. He accepted that a severance of some 4.5 km would be expected to have a deleterious effect on market value, although it was difficult to identify, from relevant sales evidence the extent of allowance which should be made for a specific severance disability. He mentioned, as an example, the sale of the severed property "Croyden/Emu Park" where the actual severance could not be identified as having specifically influenced the sale price.
In support of his opinion that a severance disability had been built into the valuation of the subject property, even if not separately identified, was a consideration of the relativity between the valuation of this land on an overall unit of area basis and valuations of other comparable properties. For example, the applied valuation on the sale property "Goldsbrough/Lanreef" was in round figures $105 per ha overall, in comparison with that of the similarly sized subject property at a rounded $80 per ha for only slightly inferior land overall. It was his opinion that had severance not been historically recognised as one of the disabilities of this aggregation a valuation of $85 per ha would have been capable of support on a pure relativity basis.
On Mr FitzGerald's oral evidence, I am satisfied that the valuation appealed against has been conducted on the basis that severance has been historically recognised as one of the disabilities of the aggregation. If Mr FitzGerald had said as it is alleged that he did, that "no allowance was made for severance" then that statement required the clarification which this Court has been afforded.
Although in the direct comparison process it is not necessary to identify in monetary terms, the extent of allowance made for specific positive or negative features, it would be helpful, in my opinion, if the valuation was seen to speak to any such features. It would be even more helpful if the extent of allowance for a specific disability was identified and then permanently recorded.
Finding
The valuation of the chief executive has not been proved wrong on the material before the Court and the Appeal AV2001/0271 is dismissed.
Appeal RV2001/0278 – 87.008 ha – valuation appealed against $14,000 ($160.9/ha).
It was asserted in the appellant's affidavit that Mr FitzGerald had altered the carrying capacity of this small leasehold block from one beast to 4.5 ha (19 head) to one beast to 5 ha (17 head), but that still remains as an over-estimation. In the appellant's opinion, the correct carrying capacity, based on comparison with Mr FitzGerald's estimate for the previous appeal land (AV2001/0271) would also be one beast to 7 ha or 13 head. The appellant seeks "a relative valuation with our other lands which I suggest should be somewhat identical to the valuation to be determined on the evidence for the lands under property identification No. 3009949" (ie Appeal 2001/0346).
The Notice of Appeal to the Land Court indicated that this was an appeal against the unimproved value being used as a basis or rating for land tax. It was given a file reference AV accordingly. In fact, as was established at the hearing, the separate valuation was issued for the purpose of determining the rent applying to the lease (see s.15(1) and s.35(1)(c)(iv) of the Valuation of Land Act). Pursuant to s.34(1)(b) and (3) of the Act the subject land had been valued for rating purposes as part of AV2001/0271.
While it is accepted that, as a matter of principle, the appellant may well have intended to appeal against the valuation for rental purposes, it was explained to the Court by Mr FitzGerald that the rental calculation based on the valuation appealed against would be less than the minimum rent payable as prescribed under the relevant regulation. Therefore, any reduction in the valuation would have no effect on the rent payable. Nevertheless, Mr FitzGerald was forced to defend his valuation on the basis of his inspection and comparison with the evidence from the following sales:
"Barramundi" – 745.1 ha – 7 April 2000 – analysed unimproved value $175/ha, applied unimproved value $162/ha, described as slightly inferior situation and access, similar country but a substantially larger area than the appeal land.
"Hillside" – 355.65 ha – 24 December 1999 – analysed unimproved value $161/ha, applied unimproved value $155/ha – described as similar situation, access, country and natural water, superior rainfall but significantly larger.
"Proston" – 604.5 ha – 10 May 1999 – analysed unimproved value $108/ha, applied unimproved value $106/ha – described as slightly inferior situation and access, inferior country, slightly superior natural water, superior rainfall but substantially larger and overall inferior on a rate/ha.
It seems that Mr FitzGerald's personal opinion was that the carrying capacity of this small block was slightly inferior to that indicated in the historical records, but his valuation had been made on the basis of direct comparison with the sales evidence and he saw the small size of the block as the more relevant consideration in terms of market value, on a unit of area basis. The highest and best use of the block was for grazing purposes and such usage was not restricted under the lease conditions.
Finding
This land was valued at approximately $80 per ha as part of the large aggregation of 6,236 ha. As a small individual block I am persuaded that Mr FitzGerald has employed correct valuation principles in arriving at the valuation appealed against. The result has no effect on the rent payable but putting that aside, the valuation has not been proved wrong and the appeal is dismissed.
Appeal AV2001/0346 – 492 ha - valuation appealed against $40,500 ($82.31/ha).
This land is owned by Mr JS Galwey's daughter. It was asserted in the affidavit that Mr FitzGerald "originally rated the carrying capacity of this block at one beast to 20 hectares, which I note he has changed to one beast to 8 hectares".
The only issue said to have arisen was that this block was valued at $82/ha with a carrying capacity of one beast to 8 ha and it "should be less than $80 ha. However there may be a loading for its small size."
It was noted in the affidavit that the sales on which the valuer had relied "are all similar in size". It was submitted that the sales "would reflect what buyers would be prepared to pay for small blocks, so there should be no added loading for size for this valuation."
Mr FitzGerald's evidence was that the sales he had relied on were the three sales mentioned in the previous appeal ie "Barramundi", "Hillside" and "Proston", together with the sale of "Nimity Belle", brief details of which are:
518 ha – 2 September 1999 – analysed unimproved value $146/ha, applied unimproved value $140/ha – described as slightly superior natural water and access, slightly larger area with similar situation and overall country, and on an overall rate/ha basis superior to the subject property – carrying capacity one beast to 7 ha.
In comparison on an overall rate/ha basis with the subject property, "Barramundi" (applied unimproved value $162/ha with estimated carrying capacity of one beast to 5 ha) was considered superior and "Hillside" (applied unimproved value $155/ha with estimated carrying capacity one beast to 5 ha) was also considered superior. In his written comparison with the subject property Mr FitzGerald compared "Proston" (applied unimproved value $106/ha and carrying capacity one beast to 8 ha) as "overall on a rate/ha basis this sale is considered superior". The valuation which he was defending was as issued, in the amount of $40,500 or rounded from $82/ha.
The respondent chief executive had withdrawn the objection to the affidavit being tendered with its references to the discussions at the preliminary conference, on the basis that Mr FitzGerald would be permitted to lead additional evidence with regard to this appeal property.
Clearly he set out to defend the valuation appealed against and that valuation had resulted from a factorised increase having been applied to the previously existing valuation. That approach has been necessitated in the mass valuation methodology adopted by the chief executive in conducting annual valuations. Such methodology was found "not to offend the Statute" by the Land Appeal Court in Wilson v Chief Executive, Department of Lands (1994-95) 15 QLCR 63 at 71. The methodology relies heavily on the previously established relativity between valuations being correct. When previously existing relativities, particularly between the sale properties and the property subject of the valuation are challenged, the relevant evidence is considered by the Court and weight given to such evidence where it is considered warranted.
When Mr FitzGerald gave close consideration to the sales evidence of land of comparable quality and size, he convinced himself that the valuation appealed against was too low. His evidence was persuasive, except when it came to his comparison of the subject property with the sale property "Proston". His comments in that instance were, it seems, designed to fit the valuation as issued and appealed against. The criteria adopted for comparison purposes from one property to another should be constant as should be the professional opinion as to any particular comparison provided for the purpose of assisting the Court. Mr FitzGerald in his oral evidence changed his professional opinion as to the comparability of "Proston" with the subject land, from "superior overall" to "comparable". It was his opinion that the unimproved valuations of the two properties should be similar on a rate per ha basis.
The assertions in Mr Galwey's affidavit were that the sale properties upon which the written valuation were said to have been based were comparably small in size and reflected any loading for that factor. However, it was then suggested that the valuation on a rate per ha basis should be less than the $80/ha applied to the large 6,236 ha aggregation. The reasoning was that the carrying capacity of the subject 492 ha property was estimated by Mr FitzGerald to be one beast to 8 ha but one beast to 7 ha on the larger aggregation.
Mr FitzGerald maintained that carrying capacity is but one of the tools employed in the process of making comparisons between properties. The sales evidence bears out his opinion that the size of a holding is a factor in this locality which has a significant influence on unimproved market value.
In this appeal I find myself in the predicament that the oral evidence of Mr FitzGerald supports his contention that the valuation appealed against is in fact too low compared with the sales evidence and also on a relativity comparison of the valuations of the various properties within the family aggregation.
The affidavit evidence has concentrated not only on discussions which were not "open" as claimed by Mr Boyd, at least in terms of the legislation relating to Court-supervised conferences, but also on the valuation reports of Mr FitzGerald as exchanged.
The appellant did not have the opportunity of challenging the additional oral evidence, but that is because the appellants, through Mr Boyd, chose to run an unrepresented case.
Section 7 of the Land Court Act 2000 provides as follows:
"7.In the exercise of its jurisdiction, the Land Court –
(a)is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts."
While I am concerned that the appellant did not have the opportunity to challenge the oral additional evidence of Mr FitzGerald, the opportunity had been taken in the affidavit to challenge the relativity of valuations of various parts of the aggregation. The specific challenge in this particular appeal has been considered but I am not persuaded that in this case the nature of the country outweighs size considerations and the evidence provided by the sales of smaller blocks. Mr Galwey as the person swearing to the affidavit fairly advised that he is "not experienced in valuations". In his absence at the hearing Mr FitzGerald was examined at some length by the Court as to his professional opinion that the valuation appealed against based on the mass methodology approach, was wrong – first on direct comparison as an individual property with the relevant sales evidence – then on relativity issues. There was no dispute from the appellant in the affidavit as to the relevance of the sales evidence relied upon by Mr FitzGerald in this particular valuation. When this Court is to be guided by equity and good conscience that applies to the case of all parties concerned, not the appellant alone. The Court informed itself in a manner considered appropriate in the circumstances and I have been persuaded that the valuation made by the respondent chief executive is wrong, not because it is too high, but because it is too low.
Section 66 of the Valuation of Land Act relevantly provides:
"Upon an appeal under section 55 the Land Court ... may –
(a) affirm the valuation appealed against; or
(b)reduce or increase the amount of that valuation to the extent necessary in its opinion to determine the same correctly under, subject to, and in accordance with this Act."
Having been persuaded that the valuation should be increased, the remaining question is by how much? Mr FitzGerald's professional opinion was that the valuation should be increased to a rounded $52,000 based on the sales evidence but in particular the sale of "Proston". His reasoning as to his altered opinion of comparability of that sale property and the subject land caused some doubts in my mind and I will provide the benefit of that doubt to the appellant.
Finding
I have decided to adopt an overall rate of $100/ha and will round the result to $49,000.
Appeal AV2001/0347 – 1,631.703 ha – valuation appealed against $195,000 ($119.50/ha).
Mr JS Galwey asserted that at the preliminary conference "Mr FitzGerald confirmed his original description of this block was: "1,632 ha mostly brigalow belah with about one-quarter of the country being box with some lighter slib gum areas."
The implication was seen to be that the valuation as issued and appealed against was based on "a block comprising 75% of brigalow belah scrub and 25% of box country with some lighter silverleaf ironbark gum areas."
It was further asserted that "Mr FitzGerald informed the Judicial Registrar following on his inspection of the subject lands he had now agreed with my map of the property … He notified the Judicial Registrar he had amended his former description of the block to separate the scrub areas distinctly from the forest areas, thereby reducing greatly the proportion of the more highly valued scrub component. His new description is set out hereunder:
608 ha37% brigalow belah
670 ha41% box, sandalwood, myall, belah
102 ha6% box, sandalwood
145 ha9% box, ironbark, wattle, some belah
107 ha7% pine"
That new description was interpreted by Mr Galwey as an admission that the extent of the superior country (brigalow belah) had been previously over-estimated (75% down to 37%) and the forest country under-estimated (25% up to 63%). It was conceded that of the "forest country" 47% was predominantly good and 16% inferior. Nevertheless it was contended that it was a logical conclusion that the valuation should be reduced according to the perception that the superior country had reduced from 75% to 37%.
Furthermore, "to add confusion" it was accepted by Mr Galwey that the valuer "initially estimated a carrying capacity of one beast to 10 ha for this block" (the estimate contained in correspondence to his agent) "but his valuation evidence now before the Land Court indicates he has now changed that to be far superior at one beast to 4.5 ha." That proposition Mr Galwey found "difficult to reconcile" when the quality of the country had been in his opinion downgraded. He found a carrying capacity of one beast to 4.5 ha as wrong when "the best lands in Queensland such as the rich fertile brigalow belah lands in districts such as Dalby and Goondiwindi are rated by the department …" (at the equivalent of) "one beast to 4.2 ha or say one beast to 4.5 ha."
It was contended by Mr Galwey that this block "as now described by Mr FitzGerald is more akin to my land under property identification No. 3009945" (Appeal AV2001/0271). The following comparison was made:
ID: 3009944 (Subject) ID: 3009945 37% brigalow belah 13% brigalow belah 47% better forest 69% better forest and scrub areas 16% inferior forest 18% inferior forest
The comparison block was valued at $79.37/ha by the chief executive (valuation now sought by the appellant being $75.41/ha) and it was submitted that the subject block should be valued at $99.50/ha.
Mr FitzGerald's oral evidence was that as a result of concerns raised at the initial objection conference and before the Court-supervised preliminary conference he personally inspected the land in company with Mr Galwey, for the purpose of providing a more detailed classification of the country than had been contained in the historical record. He believed that agreement had been reached as to the classification now contained in his valuation report and as discussed at the conference. That classification was as suggested in Mr Galwey's affidavit.
Mr FitzGerald refuted the assertion in the affidavit that he "had agreed at the Court Supervised Preliminary Conference" and in his written evidence before this Court "that the description of the country was wrong at the time the valuation of $195,000 was applied." He disagrees that the new classification should be read down to suggest an original over-assessment of the quality of the land overall. Indeed he said that the country which could be described as the "mixed scrub component" (the first two classifications when combined) had increased from "about" 75% to 78%. Mr FitzGerald saw the new classification as a more detailed interpretation of the original broader description. The 37% of brigalow belah defined the superior component of the mixed scrub while the 41% had a scrub influence and although inferior to the brigalow belah scrub, it was superior to the forest country which had been also better defined ranging from the better forest down to the more inferior.
Mr FitzGerald did not agree with the assertion that the country in this block "is more akin" to the 6,236 ha of the aggregated lands in Appeal AV2001/0271.
Mr FitzGerald advised that the carrying capacity indicated in correspondence to Mr Boyd as one beast to 10 ha had been a typographical error and should have read one beast to 10 acres, or 4.5 ha as contained in his report. Again, while he regarded the historical carrying capacity estimate as a comparison tool, his individual valuations were intended to be based on direct comparison of the land to be valued with the sale lands. He placed no specific reliance on carrying capacity estimates.
Two of the sales which Mr FitzGerald had considered to provide basic evidence of value in this valuation were "Barramundi" (see also Appeal RV2001/0278 and Appeal AV2001/0346) and "Sandlewood Valley" (see also Appeal AV2001/0271). The third sale was of the severed property "Croyden/Emu Park", brief details of which are:
1,967 ha – 26 July 1999 – analysed unimproved value $183/ha, applied unimproved value $137/ha.
Mr FitzGerald had considered the "substantially smaller" "Barramundi" (analysed unimproved value $175/ha, applied unimproved value $162/ha) to be superior to the subject property on an overall rate/ha basis and the "substantially larger" "Sandlewood Valley" (analysed unimproved value $33.02/ha, applied unimproved value $31.54/ha) to be vastly inferior.
In his opinion "Croyden/Emu Park", of similar size, with similar situation, access and natural water but inferior country was "comparable" to the subject property on an overall rate/ha. He had investigated the sale and had satisfied himself that it met the Spencer test (Spencer v. The Commonwealth (1907) 5 CLR 418) with regard to the parties being willing but not overanxious. Nevertheless the sale had appeared to him to be at a higher level than would have been expected and he had taken a conservative approach to the evidence it provided.
In the affidavit it was asserted that the sale property "Barramundi" was not comparable "as it is virtually all box country" and not "similar" as suggested by Mr FitzGerald. Furthermore, the much smaller area was seen as placing the sale property in a different market category. "Sandlewood Valley" was described as "completely dissimilar" and it was observed that "Croyden/Emu Park" was probably no more than a support sale, because of the extent of discounting in its application by Mr FitzGerald.
Finding
While I accept that the sales evidence does not provide a strong basis for the individual valuation appealed against, it does support the thrust of the respondent's case that, based on the level applied at the previous valuation a factorised increase of 25% is supported for grazing lands in Bungil Shire. There is nothing in the assertions attributed to Mr Galwey in the affidavit which provides better evidence of value than the sales put forward by Mr FitzGerald. I have been persuaded that any statements alleged to have been made by Mr FitzGerald at the preliminary conference as to the more precise classification of country have more than likely been misinterpreted by either Mr Galwey or Mr Boyd. In any event the opinions expressed in the affidavit as to the effect of the more precise classification are not in accord with the opinion of Mr FitzGerald who was the valuer responsible for considering both the historical broad classification and then its refinement. In the circumstances I accept Mr FitzGerald's oral evidence and do not find that this valuation has been proved wrong. The appeal is dismissed accordingly.
Orders
1. Appeal AV2001/0271
The appeal is dismissed and the valuation of the Chief Executive in the amount of Four Hundred and Ninety-five Thousand Dollars ($495,000) as at 1 October 2000 affirmed.
2. Appeal RV2001/0278
The appeal is dismissed and the valuation of the Chief Executive in the amount of Fourteen Thousand Dollars ($14,000) as at 1 October 2000 for rental purposes, affirmed.
3. Appeal AV2001/0346
Pursuant to s.66(b) of the Valuation of Land Act the valuation of the Chief Executive in the amount of $40,500 is set aside and the unimproved value as at 1 October 2000 determined in the amount of Forty-nine Thousand Dollars ($49,000).
4. Appeal AV2001/0347
The appeal is dismissed and the valuation of the Chief Executive in the amount of One Hundred and Ninety-five Thousand Dollars ($195,000) as at 1 October 2000 affirmed.
RE WENCK
MEMBER OF THE LAND COURT