Kemp v Department of Natural Resources and Water
[2008] QLC 87
•7 May 2008
LAND COURT OF QUEENSLAND
CITATION:Kemp v Department of Natural Resources and Water [2008] QLC 0087
PARTIES:Christopher L Kemp and Robyn J Kemp
(appellants)
v
Chief Executive, Department of Natural Resources and Water
(respondent)
FILE NO:AV2006/0362
DIVISION:Land Court of Queensland – General Division
PROCEEDING: An appeal against an annual valuation
DELIVERED ON: 7 May 2008
DELIVERED AT: Brisbane
HEARD AT:Blackall
MEMBER:Mr JJ Trickett, President
ORDER:The appeal is allowed, the valuation of the Chief Executive is set aside and the unimproved value of “Milparinka” as at 1 October 2005 is determined at Two Million, Two Hundred and Ninety Thousand Dollars ($2,290,000).
CATCHWORDS: Unimproved value – grazing property at Blackall – comparison with determinations of test cases – sales relied upon in the test cases – classification of country – carrying capacity – sheep area values – disabilities – Valuation of Land Act 1944
APPEARANCES: Mr A Boyd, agent, for the appellants
Mr W Isdale, Executive Legal Consultant, Crown Law, for the respondent
This is an appeal by landowners in the Shire of Blackall against the unimproved value applied to their land by the Chief Executive, Department of Natural Resources and Water (the Department) under the provisions of the Valuation of Land Act 1944 (the Act).
Background
Mr and Mrs Kemp are the owners of a grazing property known as “Milparinka”, containing an area of 15,451.499 ha, situated about 31 km east of Blackall. As at 1 October 2005, the respondent applied an unimproved value of $2,400,000, or $155/ha, to that property. Mr and Mrs Kemp appealed to the Land Court against that valuation, stating that their estimate of the unimproved value is $1,105,000.
The appeal was lodged on their behalf by their agent, Mr A Boyd. The grounds of their appeal are wide-ranging but general in nature, essentially contending that the unimproved value is excessive because of the failure by the Department to take into account and make proper allowance for various matters, or to apply the correct principles of valuation.
This was one of a number of cases tried by the fast-track process, following the determination of agreed test cases in the Shires of Blackall and Tambo. The parties agreed that the remaining appeals be determined by confining the evidence to comparisons with the decisions in those cases and to the sales relied upon in arriving at those determinations. However, evidence of the differences between individual properties was also heard.
Mr Kemp’s Evidence
Evidence on behalf of the appellants was given by Mr CL Kemp, whose written statement was supported by oral evidence. “Milparinka” consists of a western and an eastern part. The western part known as “Milparinka”, consists essentially of a mixture of downs and gidyea country, with some lighter carrying boree and ridge country. The eastern part comprises what was formerly known as “Crighton”, comprising mainly gidyea and brigalow scrub, some scrubby forest and an area of desert country in the north-east corner.
Mr Kemp was of the opinion that the Department had over-assessed the area of downs country, which he estimated to be 5,500 ha. According to Mr Kemp, the downs country consists of two categories:
2,500 ha of lighter carrying downs country, comprising approximately 1,000 ha of boree timbered downs and 1,500 ha of what he described as “ashy” downs, where the grass deteriorated more quickly; and
3,000 ha of what he called “Blackall” downs, by which I understood him to mean good quality Mitchell grass downs.The downs country is essentially confined to the western block.
Mr Kemp took issue with the Department’s assessment of 6,577 ha (43%) of developed scrub. Although he did not provide an area, Mr Kemp produced a map which showed the various categories. That map showed that a substantial portion of the developed scrub on the eastern block (“Crighton”) comprised what he called brigalow forest and scrubby forest, or forest with an understorey, which included an area of about 650 ha of sandy box, sandalwood, deadfinish and brigalow country which was suckering badly. According to Mr Kemp, this country is akin to desert and must be developed to grow grass. He tendered photographs which showed that much of the developed scrub is subject to regrowth and/or seedlings.
Mr Kemp’s evidence was to the effect that much of the scrub could not have a potential carrying capacity as assessed by the Department of 1 sheep to 1.3 ha. Although Mr Kemp runs only cattle, for historical reasons the Department’s carrying capacities of all these properties had been assessed in terms of sheep. Mr Kemp made the point that sheep could not be run on the eastern block, because of the presence of dogs.
According to Mr Kemp, depending on the season the appellants run between 1,400 and 2,000 cattle on the property.
Mr Haydon’s Evidence
Evidence for the Department was given by registered valuer, Mr P Haydon, who explained that he had classified the country on “Milparinka” by utilising the WARLUS land system mapping, regional ecosystem mapping and satellite imagery. The various areas had been measured using a computer based measuring system.
Mr Haydon classified the property as follows:
6,450 ha (42%) of downs country, with a carrying capacity of 1 sheep to 1.3 ha;
6,577 ha (43%) of developed scrub, with a carrying capacity of 1 sheep to 1.3 ha;
402 ha (3%) of channels, with a carrying capacity of 1 sheep to 1.8 ha;
923 ha (6%) of remnant scrub, with a carrying capacity of 1 sheep to 3 ha;
1,100 ha (7%) of desert country, with a carrying capacity of 1 sheep to 2.6 ha.
Mr Haydon originally assessed the carrying capacity of “Milparinka” at 1 sheep to 1.4 ha, or 11,036 sheep. However, after hearing Mr Kemp’s evidence he amended that carrying capacity slightly to 1 sheep to 1.45 ha, or 10,656 sheep.
Mr Haydon was cross-examined extensively about the areas and the quality of country described by Mr Kemp. He conceded that the area marked by Mr Kemp as ashy downs was of lesser quality than the good open Mitchell grass downs. He also conceded that the eastern block, “Crighton”, contains areas of what might be regarded as lighter country. However, he said that the brigalow and lighter country had responded well to buffel grass and what might have been in earlier times regarded as poor country, was now sought after. Even the desert country, long regarded as inferior country, responded well to buffel grass, although lighter carrying.
The Issues
The differences between Mr Kemp’s areas and Mr Haydon’s areas of the downs and scrub country were not fully resolved. Mr Kemp explained that he had estimated his areas based on the size of the various paddocks and the proportions of country in each. Mr Haydon, on the other hand, explained how his measurements were based on the various maps. He was quite confident of the area of non-remnant, or developed, scrub country because those areas are coloured white on the relevant regional ecosystem map. That is particularly important, he said, as it indicates the Department’s assessment of the areas which will be able to be maintained in the future. However, the remnant areas can no longer be cleared because of the restrictions in the vegetation management legislation.
The evidence seems to indicate that the cleared country comprises not only gidyea scrub, but what Mr Kemp has referred to as brigalow forest and scrubby forest. Although there is buffel grass through that country, it seems that it is more susceptible to suckering and regrowth.
There was some disagreement about the area of remnant scrub, Mr Kemp estimating that there were 720 ha, or 750 ha, while Mr Haydon measured an area of 923 ha, including the shade lines. In the circumstances, I accept that Mr Haydon’s assessment is more likely to be accurate.
On the state of the evidence, the differences between Mr Haydon and Mr Kemp cannot be resolved with any certainty. In my view, it is more fruitful to consider the overall carrying capacity of the property. It seems reasonable to assume that based on Mr Kemp’s figures the average carrying capacity of the property would be around 1,500 adult cattle. At a conversion factor of 1 beast to 7 sheep, that amounts to 10,500 sheep. That equates closely with Mr Haydon’s revised carrying capacity of 1 sheep to 1.45 ha, or 10,656 sheep.
Mr Haydon agreed with Mr Kemp that “Milparinka” is not similar to any of the test cases or the sales referred to in those cases. They are all better quality country. However, Mr Haydon felt that a comparison could be made on the basis of sheep area values. He readily conceded that the desert and other lighter country would result in a lower sheep area value than any of those properties.
The respective details of the test cases and the sales are set out below:
· “Ravensbourne”, 8,777 ha, determined by the Court at $200/ha, or $1,755,000.
Carrying capacity 1 sheep to 1.4 ha, or 6,269 sheep at a sheep area value of $280, $1,755,000.
· “Minnie Downs”, 22,177 ha, determined by the Court at $185/ha, or $4,100,000.
Carrying capacity 1 sheep to 1.5 ha, or 14,785 sheep at a sheep area value of $277, $4,100,000.
· The sale property “Eastwood”, 10,097 ha, applied value $178/ha, or $1,800,000.
Carrying capacity 1 sheep to 1.3 ha, or 7,767 sheep at a sheep area value of $232, $1,800,000.
· The sale property “Mineeda”, 13,057 ha, applied value $222.50/ha, or $2,900,000.
Carrying capacity 1 sheep to 1.3 ha, or 10,044 sheep at a sheep area value of $289, $2,900,000.
Mr Haydon reasoned that while “Milparinka” is reasonably comparable in size to “Minnie Downs”, it is a different type of country and required considerable expenditure and ongoing maintenance to achieve its carrying capacity. Although larger, he thought that “Milparinka” was most comparable to the sale property “Eastwood” and the test case “Ravensbourne”, although the proportions of downs and gidyea country were somewhat different. However, he had adopted the lower sheep area value of $217.50 in recognition of the extent of remnant scrub and the desert component on “Milparinka”.
Conclusions
Because of the lighter type downs country and the ongoing suckering and regrowth problems on the brigalow country, Mr Haydon had extended the carrying capacity from 1 sheep to 1.4 ha to 1 sheep to 1.45 ha. However, in my view the sheep area value could be reduced a little further having regard to the nature of this property.
Although “Milparinka” does not have the proportion of scrub country of “Eastwood”, on the evidence it would not have the potential to achieve the same carrying capacity. It seems likely that more expenditure would be incurred in maintenance of the developed country to continue to run 1 sheep to 1.45 ha. Furthermore, the “Crighton” block suffers from being a buffer to the desert country. I will adopt a sheep area value of $215.
At a carrying capacity of 1 sheep to 1.45 ha, “Milparinka” would run 10,656 sheep. At a sheep area value of $215, the unimproved value is $2,290,000 (rounded), or $148.20/ha.
Order
The appeal is allowed, the valuation of the Chief Executive is set aside and the unimproved value of “Milparinka” as at 1 October 2005 is determined at Two Million, Two Hundred and Ninety Thousand Dollars ($2,290,000).
JJ TRICKETT
PRESIDENT OF THE LAND COURT
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