Knight v Department of Natural Resources and Water

[2009] QLC 20

LAND COURT OF QUEENSLAND

CITATION:

Knight v Department of Natural Resources and Water [2009] QLC 0020

PARTIES:

Simon J Knight
(appellant)

v.

Chief Executive, Department of Natural Resources and Water
(respondent)

FILE NO:

RV2008/0830 and AV2008/0831

DIVISION:

Land Court of Queensland

PROCEEDING:

Appeals against valuations of land under the Valuation of Land Act1944

DELIVERED ON:

17 February 2009

DELIVERED AT:

Brisbane

HEARD AT:

Mareeba

MEMBER:

Mr RP Scott

ORDER:

The appeals are dismissed.

CATCHWORDS:

Valuation of Land Act – s.14(5) – restrictions relevant to use – general restrictions irrelevant – conditions do not operate as restrictions if they do not impair highest and best use – condition need not be relied on if the terms of the condition are reflected in the fee-simple value

Valuation of Land Act – s.14(1) – valued as fee simple – threat of native title claim is irrelevant

APPEARANCES:

The appellant in person
Mr G Smith, Acting Principal Legal Officer, for the respondent

Background

1. Pursuant to the provisions of the Valuation of Land Act 1944 (the Act) and for the purposes of the Land Act 2000 the Chief Executive placed a valuation on land held by the appellant in the amount of $114,000 as at a relevant date of 1 October 2007.  Whilst there are two statutory valuations, each is at the same figure and based on the same principles and methodology.  The appellant has appealed against those valuations and contends to a valuation of $57,000 a figure which apparently applied to an earlier valuation in 2006.  The parties consented to both matters being heard together. 

2. The appellant appeared in person and provided evidence in support of the appeals whilst David Frank Paton registered valuer provided evidence in support of the Chief Executive’s valuations.  That evidence comprised both valuation reports and oral evidence. 

3. The subject land is located on a non-dedicated extension of Walsh River Road adjacent to the southern bank of Walsh River in the Watsonville locality in North Queensland.  Its nearest towns are Watsonville, Herberton and Atherton.  The land has an area of 14.26 ha and is held under a Permit to Occupy granted under the Land Act. Section 14(1) of the Valuation of Land Act provides:

   (1)     “For the purpose of deciding the unimproved value of land that is not granted in fee simple, the land is taken to be land granted in fee simple.”

4. This provision is qualified however by s.14(5)(b) of the Valuation of Land Act which relevantly provides:

   “(5) In making, under this part, the valuation of the unimproved value of any land—

   (a)   …

   (b) in a lease, licence, permit or permission to occupy under the Land Act 1994 or granted or issued by the coordinator-general or the chief executive of the department responsible for the administration of the Forestry Act 1959; or

   …

   the unimproved value of that land shall be determined having regard to and making proper allowance for any restriction or limitation of use having regard to the purpose and conditions to which that permit, lease, licence permission to occupy, agreement or determination is subject.”

5. The main contention advanced by the appellant is that Mr Paton has failed to properly apply s.14(5)(b) of the Act in his valuation of the subject land.  In particular, Mr Knight said that Mr Paton had not taken into account the conditions numbered 4, 5 and 6 in the Permit to Occupy nor had he sufficiently taken into account the effect of condition 12 having regard to the condition of the relevant access road:

   “4.     The occupancy shall be terminable at any time at the discretion of the Minister on notice in writing by this Commission or immediately upon the decease of both of the permittees.

   5.       No compensation whatsoever shall be payable by the Crown on termination of the occupancy, but the permittees shall remove their improvements within three (3) months from the date of termination of the occupancy.

   6.       The permittees shall not under any circumstances enter into any arrangements to sublet, dispose of, or transfer the occupancy.

   …

   12.     No dedicated or practical access to the land shall be provided by the Crown or Local Authority.”

6. In his submissions Mr Knight submitted that s.14(5)(b) requires that the relevant valuation have regard to “any restriction” and that condition 4, 5 and 6 of the Permit to Occupy could properly be described as “restrictions”. I do not think that s.14(5)(b) should be read in the manner proposed by Mr Knight. The provision refers to “any restriction or limitation of use” and not to any restriction per se. 

7. In Mr Paton’s valuation he valued the subject land on the basis that it had a highest and best use as rural residential – the current use of the land.  It is quite clear to me that whilst conditions 4, 5 and 6 could properly described as limitations or restrictions imposed upon the holder of the Permit to Occupy, they could not be characterised as restrictions or limitations on use given that condition 3 of the Permit to Occupy permits the use currently undertaken and is consistent with the highest and best use which forms a basic part of Mr Paton’s valuation. 

8. Mr Knight gave evidence of there being a Registered Native Title Claim which includes the subject land and adjacent lands and thus, in his submission, comprises a restriction of the type contemplated in s.14(5)(b) of the Act.  That is a submission which I cannot accept.  It is not a restrictive or new limitation of use.

9. Whilst the existence of a Registered Native Title Claim over land could readily be understood as a matter of concern to a landholder not only do the facts of the present case indicate that the subject land is capable of being put to its rural residential use, but the provisions of s.14(1) of the Act make it quite clear that the land is to be valued as if it were fee simple.  Now it has been well settled that Native Title does not defeat a fee simple estate in land.[1]  I now turn to consider condition 12 of the Permit to Occupy.

   [1]     See Driscoll v Chief Executive, Department of Natural Resources (AV98/277 to 282) 30 July 1999 at 9.

10. The access to the subject property from the south is from the bitumen Herberton-Petford Road at Watsonville, along a short distance of bitumen then about 5 km of dedicated gravel and dirt access to Surveyors Creek via Bischoff Mill Road and Walsh River Road.  From Surveyors Creek a non dedicated dirt track of about 1.9 km extends to the subject land over an Occupation Licence area.  Mr Knight said that access via the non dedicated road is illegal, unsafe, rutted, eroded and dangerous all year round.  It is a single lane track with estimated average travel speed to approximately 10 km/hr with only occasional points to pass.  It is impassable during the wet season except by experienced four wheel drivers and frequently requires expensive repairs by heavy machinery.  After rain those repairs need to be carried out by landholders.  Mr Knight said that there is no access to a school bus, ambulance or emergency services such as the Herberton Fire Brigade and said also that most local carriers refuse to drive on it.  He tendered photographs of the road taken during the dry time of the year. 

11. Mr Paton said that most of the access is best described as fair but is poorer in the wet season when water levels rise in fords at Toy Creek and Surveyors Creek.  He said that there is an alternative non-dedicated access track of about 7 km from bitumen road at the northern end of Herberton but the steepness of parts of that track over the dividing range restricts it to four wheel drive access use only. 

12. Mr Knight pointed out that the Registered Native Title Claim referred to above also encompasses the area over which access to the property is obtained and suggested that that factor needed also to be taken into account.  Presently the property is valued by the Chief Executive on the basis it has non-dedicated access; that is, access which might reasonably be described, as Mr Knight did, as being “illegal”.  The uncertainties of appending Registered Native Title Claim cannot, therefore, be said to have affected the legal status of the access in any way. 

13. Mr Paton said that he was well aware of the access difficulties associated with the subject land and that in the previous annual valuation had adjusted the value downwards taking that disability into account.  The disability is also reflected in his opinion of the value that he has ascribed to the land.  In his valuation report he included four sale transactions and compared the subject property to those sale properties on a block to block basis having regard to the various features of each. 

14. I notice that in each comparison he concluded that each sale property was superior to the subject in so far as access is concerned.  A feature of a property being valued which might be considered by any objective observer to be a disability, such as access is in the case of the subject land, cannot be treated in a vacuum to adjust the land valuation downwards without having regard to the manner in which such a disability might be treated in the market place.  It seems to me that Mr Paton has applied his expertise by having regard to the market place in the form of the four sales and agrees with Mr Knight that the access to the subject land might reasonably be described as generally inferior.  It has not been demonstrated to me that his expertise has miscarried in any way and in circumstances where an appellant carries the burden of proving the Chief Executive’s valuation to be wrong (s.45(4) of the Act) I must say that the appellant has not convinced me that Mr Paton has made an error in his valuation. 

15. In passing I would make the comment that the access issue would need to be taken into account irrespective of the presence of condition 12.  That is because it is a relevant factor associated with the value of the land viewed as fee-simple.

16. The appeals are dismissed and the valuation of the subject land for the purposes of these appeals is determined in the amount of $114,000.

RP SCOTT

MEMBER OF THE LAND COURT