Jackson v Department of Natural Resources and Mines
[2002] QLC 74
•18 September 2002
LAND COURT OF QUEENSLAND
CITATION: Jackson v Department of Natural Resources and Mines [2002] QLC 74
PARTIES: Colin J and Rita BM Jackson
(applicants)
vChief Executive, Department of Natural Resources and Mines
(respondent)
FILE NO: AV2001/0331
DIVISION: Land Court of Queensland
PROCEEDING: An appeal against an Unimproved Valuation, 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. The appeal is dismissed and the unimproved valuation of the chief executive affirmed in the amount of Three Hundred and Forty Thousand Dollars ($340,000) as at 1 October 2000.
CATCHWORDS: Statutory Valuation - Valuation of Land Act - factorised increase found from interpretation of sales evidence – annual mass valuation methodology does not offend the Statute.
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 Rules – Rule 22 – way evidence is to be given – affidavit evidence in absence of oral testimony – unsatisfactory if challenged.
Practice and Procedure – Land Court Rules – Rule 23 – expansion of matters in exchanged report by expert witness – introduction of fresh material – not permitted except with leave of the Court.
APPEARANCES: Mr C Jackson for the applicants
Mr K Fisher, Crown Law, for the respondent
This is an appeal against the chief executive's unimproved valuation of grazing land known as "Rockvale", in Bungil Shire, in the amount of $340,000 as at 1 October 2000.
The real property description of the land is Lot 1 on Plan WT235, GHPL 7864, Parish of Huttonvale, County of Westgrove, which contains an area of 5,190.498 ha.
"Rockvale" is located approximately 34 km north-west of Injune via Westgrove and Rockvale Roads, access comprising 18 km of bitumen with the balance formed earth and gravel.
Rural power, telephone and twice-weekly mail delivery are available.
The appellants had employed the services of an agent, Mr Alister FM Boyd to assist them in the objection and appeal process against the valuation. The process included a Court-supervised conference preliminary to the appeal hearing.
Mr Boyd advised the Court by way of statutory declaration that the appellants had decided to proceed with the hearing of the appeal when the expectation of a positive result from the preliminary conference was not forthcoming. The appellants believed the adjustment sought should have involved a relatively simple matter which had not warranted expenditure on legal or valuation representation at the hearing. It had been intended that the appellants' case would require nothing more than presentation of their testimony by way of a sworn affidavit, a copy of which had been filed and served on the respondent.
Such an approach, with an appellant or his/her agent, not presenting themselves for examination as to the veracity of the contents of affidavits means that the evidentiary weight which can be attributed to those contents, if challenged, is so limited as to be of little, if any, assistance to the Court. If an appeal has merit, this type of approach is unsatisfactory.
At the commencement of the hearing of this matter, Mr Fisher objected to the affidavit being accepted as an exhibit in the form presented, as it contained references to the discussions between the parties at the preliminary conference, which the chief executive's representatives had believed had been held on a "without prejudice" basis.
Section 36 of the Land Court Act 2000 relevantly provides as follows:
" (9) Evidence of anything said or any admission made at the conference is not admissible in the proceeding without the consent of the parties."
As it happened in this matter, the respondent after having complied with Rule 23(1) and (2) of the Land Court Rules 2000 sought leave to introduce evidence additional to that contained in his valuer's statement.
Sub rule (4) of Rule 23 provides as follows:
"An expert witness, in examination in chief, must not, except with the leave of the court, expand on matters contained in the witness’ statement of evidence or introduce fresh material."
In the end result, Mr Jackson, who had been in attendance as an observer, decided to conduct the appellants' case. The respondent withdrew the objection to the admission of the affidavit. Mr Jackson had agreed to give oral evidence in support of the contents and to make himself available for cross-examination. Mr Jackson agreed to the respondent's request to introduce the additional evidence and leave was granted accordingly.
It became clear that while Mr Jackson may have agreed with the contents of the affidavit and attempted to support those contents, the opinions expressed therein had been drafted by Mr Boyd, albeit said to have been in Mr Jackson's language. In fact, Mr Jackson himself had considerable difficulty in explaining some of the assertions expressed in the affidavit.
The evidence before the Court is that the chief executive's initial valuation of "Rockvale" had been in the amount of $350,000. The valuation had been reduced on objection to $340,000 for reasons associated with parthenium weed problems. The appellants remained dissatisfied with the reduced valuation and appealed to the Land Court. A Court supervised preliminary conference was conducted by the Judicial Registrar. The appellants, through Mr Boyd, had been of the belief that admissions had been made by the respondent's valuer in relation to the nature of the country and its carrying capacity, which should have resulted in the valuation being further reduced. When that did not occur, the decision was taken by the appellants to proceed with the appeal, because they believed the issues had been narrowed to the correct classification of the country and its productive potential (carrying capacity).
It was asserted in the affidavit that at the preliminary conference the respondent's valuer, Mr DA FitzGerald, had provided a "new" classification with which it had been suggested Mr Jackson had agreed. The "new" classification allegedly given at the preliminary conference was not the classification which Mr FitzGerald sent by facsimile to Mr Jackson shortly after the preliminary conference, and which he now relies upon in his formal valuation report. The fresh classification had resulted from Mr FitzGerald having inspected "Rockvale", in company with Mr Jackson, prior to the preliminary conference. The affidavit concentrated on the differences between the two classifications and the suggestion that the classification on which Mr FitzGerald now relies points to an acceptance by him that the nature of the country was inferior to that previously recorded.
The "new" description was said to have been (para 6 of the affidavit):
"1400 ha 27% brigalow
1175 ha23% brigalow, belah, sandalwood
1900 ha36% box, slib, myall
715 ha 14% sandy pine, ironbark, gum, wattle."
As I understand the evidence, that description was not the "new" description, but the classification contained in the historical departmental records.
The classification on which Mr FitzGerald now relies is as follows:
"(31%) 1,625 hectares Brigalow Belah
(23%) 1,175 hectares Lighter Scrub with some rock areas
(15%) 755 hectares Poplar box country with some belah(17%)895 hectares Poplar box, Silver Leafed Ironbark, Bulloak ridges with some belah
(14%)740 hectares Sandy Pine, Bulloak, Ironbark, Gum and Wattle."
Mr FitzGerald's valuation was set out in his report as:
"5,190 ha @ $65.50 hectare = $340,000."
It was Mr FitzGerald's evidence, in defence of his valuation, that he had been under the impression after his inspection and the discussion which took place on the day between him and Mr Jackson, that there had been no real dispute about the nature of the country, once satellite imagery had been considered. He had, in the presence of Mr Jackson, drawn most, if not all of the lines on the satellite imagery which were intended to identify the different land types. He agreed that there had been a time constraint in completing this work. When he returned to his office from the field inspection he had calculated, with computer assistance, the areas of different land types. It was his evidence that the classification upon which he now relied is more detailed in terms of the break-up of land types than the historical classification, but it was wrong to interpret the change as a downgrading of the overall nature or quality of the country. In fact, the area of the superior brigalow scrub country had been increased and the total area of box country had decreased accordingly. The box country had been broken up into two categories which he believed was a more accurate reflection of the land involved.
The oral evidence of Mr Jackson was that he does not agree with Mr FitzGerald's classification. He did not accept that any overall agreement had been reached on site, as to interpretation of the satellite imagery.
Mr Jackson having believed that he would not be giving oral evidence had not come to the Court fully prepared. However the question of the classification of the land had been a matter which had caused him to prepare some years previously, a plan of the property with assistance of aerial photography and ground truthing. This mapping had been of assistance to him in previous successful negotiations with a departmental valuer as to the correct relativity of the valuation of the subject land, in comparison with valuations of other lands. He had been under the impression that the more recent valuations by the department would have been based on the result of earlier negotiations and his classification of the country. He assumed that his classification would have been included in the departmental file. It seems that the map had not been provided to Mr FitzGerald at the time of his inspection.
Although he did not have his mapping with him, Mr Jackson suggested that a more accurate description of "Rockvale" would be as follows:
(28%) 1,469 hectares – brigalow and belah
(22%) 1,124 hectares – hard brigalow belah of low carrying potential
(23%) 1,214 hectares – grey box type land
(14%) 747 hectares – bulloak, ironbark and light almost sandy grey soils
(13%) 636 hectares – sandy mainly pine and wattle country.Mr Jackson pointed out that the second category while capable of growing scrub vegetation had little topsoil and was mostly rock and a description as scrub country could lead to a misconception as to the actual quality of the country.
Mr Jackson also disagrees with Mr FitzGerald's estimate of carrying capacity which was stated as being one beast to 5.5 ha on an adult equivalent basis. He suggested that one adult to 8 ha would be more reasonable. It was asserted in the affidavit that at the preliminary conference the departmental carrying capacity estimate had been said to be one beast to 8 ha.
On the carrying capacity issue, Mr FitzGerald was able to explain to the Court that historical Lands Department records had indicated a carrying capacity of one beast to 8 ha but historical Valuer-General's Department records of unimproved valuation under the Valuation of Land Act indicated a carrying potential estimate of one beast to 5.5 ha. Mr FitzGerald had not altered that estimate but had noted during the inspection that Mr Jackson was working on one beast to 4 ha on the scrub country and one beast to 10 ha on the balance. Mr FitzGerald recognised that estimates of carrying capacity were a useful tool in the comparison process for valuation relativity, but he did not himself place any specific weight on carrying capacity. He said that he used the approach of direct comparison of the property to be valued with the available sales evidence. Again, the classification of land types was said to be used as one of the tools in the direct comparison approach. The valuation was made on an overall unit of area basis.
Mr FitzGerald reiterated that although contained in the appellants' affidavit was the suggestion that his amended classification when compared to the historical classification (although described in the affidavit as the "new" classification given at the preliminary conference), reflected an overall inferior land type, in fact, the opposite was the case. However he had not attempted to interfere with the original basis of valuation to reflect any superiority in the fresh classification, because, in his opinion, the difference in overall valuation terms was slight.
The sales evidence included in Mr FitzGerald's exchanged valuation report was as follows:
1."East Lynne" – 4,735.23 ha – 14 September 2000 – analysed unimproved value $25.52/ha, applied unimproved value $25.07/ha.
2."Sandlewood Valley" – 2,821 ha – 26 November 1999 – analysed unimproved value $33.02/ha, applied unimproved value $31.54/ha.
The supplementary evidence which was admitted with the leave of the Court was:
"Pony Plains" (in Taroom Shire) – 4,003.593 ha – 9 May 2000 – analysed unimproved value $211/ha, analysed unimproved value $210/ha.
"Goldsborough & Lanreef" – 6,132 ha – 13 December 1999 – analysed unimproved value $314/ha, applied unimproved value $104.88/ha.
Obviously "East Lynne" and "Sandlewood Valley" are significantly inferior to "Rockvale", while "Pony Plains" is significantly superior. "Goldsborough/Lanreef" is described by Mr FitzGerald as "slightly superior country" with superior situation and access, but the sale was not adopted as other than support evidence. Clearly it was not a basic sale for the valuation of the sale property.
It was Mr FitzGerald's evidence that in the valuation of Bungil Shire some 10 basic sales had been adopted and all had shown an increase of at least 25% above the unimproved valuations which had been previously applied to those sale properties.
As I understand the position with "Rockvale", a 25% increase had been initially applied to its previously existing valuation, then a specific reduction made at the objection stage for the parthenium weed problem.
It is continually said by this Court that its task is to determine the correct unimproved value at the relevant date of valuation and not to be concerned with the correctness of the previous valuation. That should not be interpreted however as suggesting that the mass valuation methodology adopted by the chief executive in applying factorised change to a previous valuation of identified categories of land, is defective. To the contrary, the methodology was found by the Land Appeal Court not to "offend the statute" in Wilson v Chief Executive, Department of Lands (1994-95) 15 QLCR 63 at p.71. The methodology relies on the assumption that the previous relativity between valuations within the relevant categories, is correct.
Mr Jackson's evidence was that he had previously gone to some length to negotiate with a previous valuer, the best result he believed was possible, based specifically on relativity of valuations with other lands. The evidence before the Court from Mr FitzGerald is that, apart from the further specific allowance for parthenium problems, the previously existing relativities were adopted as the base for this relevant date valuation.
The thrust of the affidavit was that the inspection made by Mr FitzGerald resulted in an inferior quality of land being found when compared with some previous departmental classification. If anything the opposite is the case but if it was necessary to make a ruling on that specific point, I would adopt the classification supplied by Mr FitzGerald as being reliable and as accurate as is necessary for valuation purposes.
Mr Jackson impressed me as an honest witness, but I do not accept that each of the opinions expressed in his affidavit was necessarily his own. Much of the content appeared to be assertions by his agent who had "assisted" him "in the preparation of this Affidavit". The affidavit, rather than being of assistance, proved to be a hindrance to the Court in efficiently dealing with what was described therein as a simple matter.
Finding
I have not been persuaded that the grounds as contained in the Notice of Appeal have been proved or that the valuation of the chief executive is erroneous.
Order
The appeal is dismissed and the unimproved valuation of the chief executive in the amount of Three Hundred and Forty Thousand Dollars ($340,000) as at 1 October 2000 affirmed.
RE WENCK
MEMBER OF THE LAND COURT
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