Morris v Valuer-General
[2011] QLC 78
•20 December 2011
LAND COURT OF QUEENSLAND
CITATION: Morris v Valuer-General [2011] QLC 78 PARTIES: Roma Morris
(Appellant)v. Valuer-General
(Respondent)FILE NO: VLA369-10 DIVISION: Land Court of Queensland PROCEEDINGS: Appeal against annual valuation under the Valuation of Land Act 1944 DELIVERED ON: 20 December 2011 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: His Honour, Mr WL Cochrane, Member ORDERS: 1. The appeal is dismissed. CATCHWORDS: VALUATION – Particular factors in valuation – Restrictions on use – Vegetation Protection Order (VPO) over large fig tree on property – Effect on development and amenity – Whether land remained suitable for residential purposes – Allowance 25% made on merits of case – EXPERT EVIDENCE – Evidence of deceased expert – Expert conclusions – ISSUE ESTOPPEL APPEARANCES:
SOLICITORS:
Mr AJH Morris of Queen’s Counsel with Mr AC Barlow appeared for the Appellant
Mr SP Fynes Clinton for the RespondentLegal Services – Department of Environment and Resource Management
Background
This is an appeal brought by a landowner, Roma Morris, pursuant to the provisions of the Valuation of Land Act 1944 (hereafter “The VLA”). The appeal was filed on 27 August 2010.
The chief executive’s valuation issued on 20 July 2010 effective from 30 June 2010 with a valuation as at 1 October 2009 was, after objection, determined at $1,575,000. The original valuation had been $1,700,000.
In the appeal the appellant contends for a valuation of “less than $100,000”.
The subject land has been the subject of at least six other appeals to this Court with respect to annual valuations.[1]
[1] See AV1998/593; AV2002/0180; AV2003/0680; AV2005/1734; AV2007/0071 and AV2008/0363.
On three occasions the appeals have been subject to formal determinations by the Land Court.[2]
[2] See Estate of LV Bressow (Deceased) v Chief Executive, Department of Natural Resources, Land Court Brisbane 23 December 1999, Morris v Department of Natural Resources and Mines [2003] QLC 0037 and Morris v Department of Natural Resources and Water [2010] QLC 0021.
All told, appeals have been brought in respect of valuations determined in March 1998, 1 October 2001 effective 30 June 2002, a valuation of 1 October 2006 and a valuation of 1 October 2007. As indicated above the present appeal is in respect of a valuation effective as at 1 October 2009.
In all the matters brought before this Court the focus of submissions before the Court has been the impact that the existence of a Vegetation Protection Order (“VPO”) which exists over the subject land has on the unimproved value of the land. The VPO is in respect of a large White Fig Tree (Ficus Virens) which is located close to the northern boundary of the subject land.
The subject land
The subject land is described as Lots 9 and 10 on RP46719:Parish of Toombul Country of Stanley and has a total area of 2,039m². It is, accordingly, a relatively large residential block on which has been constructed for some considerable period of time a quite imposing residential property and a pool.
The land is located at the corner of Dennison Street and Windermere Road at Hamilton about 5 km north-east of the Brisbane CBD. Both of those roads are bitumen sealed and all of the normal services of town water, sewerage, electricity gas and telephone are connected to the subject land.
In the decision [2010] QLC 0021 His Honour Mr Smith set out in some detail the characteristics of the location of the subject land.
I can do no better than recite what His Honour observed in that decision at paragraphs [6] to [10]. His Honour observed:
[6]Shopping and commercial facilities are located in Racecourse Road, approximately 550 m to the east of the subject land. The Centro Toombul Regional Shopping Centre is located approximately 2.5 km to the north of the subject land.
[7]The subject land is well serviced by public transport. Ascot train station is located approximately 700 m to the north of the property, and the subject also enjoys regular bus services in the area.
[8]Development in the area surrounding the subject land is predominately single detached residential in nature, comprising a mixture of quality character, post-war and contemporary design houses.
[9]The subject land comprises two separate allotments that together form a near rectangular shaped corner allotment with a north-easterly aspect. The land falls gradually from the Windermere Road frontage to the northern boundary, the total fall being approximately 5 m from the north-east corner to the south-west corner, an overall distance of approximately 75 m. Frontage to Windermere Road is 30 m, whilst the side frontage to Dennison Street is approximately 69 m. There is a 2 m wide drainage easement along the rear boundary held by the Brisbane City Council.
[10]The subject land is developed for residential purposes. It comprises a single dwelling and swimming pool. The house has been built towards the southern end of the property facing Windermere Road.
The grounds of appeal
The appeal in the present matter identifies the following grounds of appeal.
“The valuation fails to take proper account any, or all of the following:
(a)80% (or greater) of the subject property is infested by the root system of a White Fig, growing at the northern boundary of the property;
(b)the White Fig, and its root system are subject to a Vegetation Protection Order;
(c)the White Fig’s root system continues to expand into the property, year by year;
(d)consequentially the potential for construction on the land, in its unimproved state, is extremely limited, or in fact negligible;
(e)additionally, and alternatively, as a matter of law it is not possible to construct a dwelling house anywhere upon the land without damaging or destroying the White Fig’s root system and consequentially breaching the Vegetation Protection Order;
(f)in the further alternative the risk that the White Fig’s root system would prevent construction of a dwelling house, of a size and style commensurate with the property’s size and position is high;
(g)in the circumstances an arms-length at purchaser would not consider the property for purchase on the basis that construction of a dwelling house could take place on the subject property;
(h)in the circumstances the unimproved value of the subject property is negligible, say less than $100,000.”
Those grounds of appeal although expressed in eight paragraphs very substantially mimic (save with respect to amenity aspects such as access to breezes) the grounds of appeal (expressed in six paragraphs) that were before the Court in 2010.[3]
[3] See paragraph [12] of the Decision of His Honour Mr Smith [2010] QLC 0021.
Relevant Legislation
The valuation exercise carried out by the Chief Executive is pursuant to s.13 of the (now repealed) VLA. That section provides:
“The chief executive must decide the unimproved value of the land to be valued for the Acts under which local authorities are established.”
The meaning of unimproved value, is set out in s.3(1) of the VLA as follows:
“3(1) For the purposes of this Act –
‘unimproved value’ of land means –
(a)in relation to unimproved land – the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require; and
(b)in relation to improved land – the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require, assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist.”
In this case, as indicated above, the property is improved with a residential dwelling and a swimming pool amongst other things.
Accordingly the task of this Court is to ascertain the market value of the subject land on the assumption that the land carries none of the improvements presently extant but, as I note later in this judgment subject to the requirements of s.3(4) of the VLA.
The valuation exercise is generally carried out having regard to the identified highest and best use of the subject land.
Once the Chief Executive has carried out his/her statutory obligation, s.33 of the VLA provides that:
“33 Status of valuation
Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the chief executive shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered.”
The importance of s.33 was considered by Gibbs J (as he then was) in Brisbane City Council v The Valuer-General for the State of Queensland (1977-78) 140 CLR 41 where His Honour observed at page 56:
“In my opinion once it is shown that in making the valuation the Valuer-General acted upon a wrong principle, or made a serious error of fact, the presumption created by s. 13(7) is rebutted.”
In that decision Gibbs J was considering s.13(7) of the then Act which was in essentially the same terms as the present s.33.
Section 13(7) of the Act had earlier provided:
“Any and every valuation, or alteration of the valuation, of any land made or purporting to be made, under this Act by the Valuer-General shall be deemed to be correct until proved otherwise upon objection or appeal until altered further altered pursuant to a provision of this section.”
Counsel for the appellant in the course of closing addresses acknowledge that it was the appellant who carried the onus of showing that the valuation was incorrect.
The expression “unimproved value” has been construed by the Courts on a number of occasions most notably in the Spencer decision[4] and in Fairfax v Department of Natural Resources and Mines.[5] Reference to those decisions was made in each of the two preceding determinations in respect of this land.[6] Accordingly, it is unnecessary to repeat the oft-quoted extracts from those cases.
[4] Spencer v The Commonwealth (1907) 5 CLR 418.
[5] [2005] QLC 0011.
[6] [2010] QLC 0021 and [2003] QLC 0037.
By way of assistance to the Court, the parties were able, prior to the beginning of hearing, to agree on a “statement of agreed facts” which was tendered as Exhibit 5.
The agreed facts were as follows:
“1.The Appellant, Mrs Morris, is:
(a) the owner and registered proprietor of land situated at 56 Windermere Road, Hamilton, described as Lots 9 & 10 on RP 46719 (“the Land”); and
(b) the successor in title to the previous owner and registered proprietor, the Estate of LV Bressow (deceased), being the sole devisee under that estate.
2.A large white fig (“the tree”) is situated on the Land, near the centre of the northern boundary.
3.A vegetation protection order, VPO VIC FIR 04 (“the VPO”), applies to the tree.
4.As to the tree:
(a)its canopy is extending above the Land; and
(b)its root system is extending under the Land.
5.On 22 March 2010, the Valuer-General valued the land at $1.7 million with effect from 30 June 2010.
6.The Appellant has validly instituted appeal number VLA 369-10, to the Land Court of Queensland, against the valuation dated 22 March 2010.
7.The value of the Land – as at several earlier points in time – has been determined in a number of previous appeals, namely:
(a) Estate of LV Bressow (Deceased) v Chief Executive, Department of Natural Resources, AV98-593 (23 December 1999);
(b) Morris v Department of Natural Resources and Mines [2003] QLC 0037 and;
(c) Morris v Department of Natural Resources and Water [2010] QLC 0021.
8.None of those previous appeals has been the subject of any further successful appeal by either party.
9.The value of the land, as at the material time for the determination of the present appeal, has not previously been the subject of any determination by the Land Court (or any other tribunal of competent jurisdiction).
10.The Respondent is, for the purposes of the present appeal, the legal successor to the Chief Executive of the Department of Natural Resources.”
The Hearing
Mr AJH Morris of Queens Counsel together with Mr Barlow of Counsel appeared on behalf of the appellant, who is his mother, at the hearing of the matter. The respondent was represented by Mr Fynes-Clinton of Counsel.
Unusually, the appellant, effectively, called no oral evidence. The appellant relied upon the statement of Graeme Oriel Morris (exhibit 2) who was not required for cross-examination by the respondent.
After argument on an earlier occasion and having had their attention drawn to the provisions of the Evidence Act (1977), the appellant also successfully sought to tender an expert report prepared by a Mr John Mulholland dealing with arborial matters.
Mr Mulholland had been engaged to provide evidence on the last occasion this matter was before the Court in 2010 but, unfortunately, passed away prior to the hearing occurring. Notwithstanding that, on the occasion, Mr Mulholland’s report was admitted into evidence.
Given that Mr Mulholland was not available for cross-examination and that his report was dated the 26th February 2008 and related to the circumstances surrounding the subject tree at that time its usefulness to the Court is clearly a matter of weight having regard to all of the other evidence.
The circumstances of its admission on the last occasion are canvassed by His Honour at paragraph [23] of the decision of 2010.
On the previous occasion Mr G.O. Morris had given oral evidence and the report of Mr Mulholland was under the consideration of the Court as obviously he was not available for cross-examination.
In the event in the decision previously His Honour Mr Smith found as follows:
“[59]As set out above, I accept the evidence of Mr Mulholland and Mr Morris that the tree, the subject of the VPO, on the subject land is indeed a very large tree and that the root system from that tree extends extensively in a southerly, uphill direction from the tree towards both Dennison Street and Windermere Road. I also accept that the tree roots in question are both invasive and destructive. I also accept that a very significant, although not readily scientifically assessable, area of the subject land is subject to tree root inundation. I also accept that the extent of the tree root inundation on the subject land is greater than that as found to be the case as at 1 October 2001.”
That is to say the entirety of Mr Mulholland’s report had not been unequivocally accepted by the Court. I cannot clearly glean from His Honour’s reasons any indication that other parts of Mr Mulholland’s report had been unreservedly accepted.
The respondent relied upon the evidence of an arboriculturist, Mr Jason-Jay Fletcher, as well as the report of a valuer, Ms Jennifer Robyn Manners, who is employed by the respondent department.
Each party to the appeal urged upon the Court that a view both of the subject land and the relevant tree together with a view of the fig trees referred to by Mr Jason Jay Fletcher in New Farm Park as well as a mature tree of the same variety located in the Newstead House parkland would be useful to me I advised the parties that I was happy to conduct the view on my own without the need for attendance by them.
Both parties acquiesced in that suggestion, and, accordingly, after the hearing had concluded, I can confirm that I attended at the corner of Windermere Road and Dennison Street as well as in New Farm Park and at Newstead House and spent some time looking at each of the relevant trees.
Given the attack mounted by the appellant’s counsel upon the evidence of Mr Fletcher to which I shall refer later the views were of some but not great assistance to me.
It is unusual in a case such as this given the sums of money involved for an appellant not to rely upon the evidence of an expert valuer. However, that was the course taken by the appellant in this case and her representatives relied upon the cross-examination of Ms Manners to contest the valuation evidence adduced by the respondent.
Expert report of Mr John Mulholland
Mr Mulholland, as appears from his report, was an arborist of some considerable experience. Unfortunately he was dead by the time the matter came on for hearing on the previous occasion and thus his report was not forensically tested by cross-examination and accordingly issues of the weight to which I should give Mr Mulholland’s report were the matter of submissions by counsel at the conclusion of the hearing.
The Evidence of Jason-Jay Fletcher (Arborist)
I should observe at the outset that Mr Fletcher was a hesitant, tentative and nervous expert witness who did not attend clearly to the questions asked of him and frequently had to be redirected or challenged as to the cogency of his answers having regard to the questions asked of him. He was the subject of trenchant criticism by His Honour Mr Smith on the last occasion.
That aside, I have no hesitation in finding that Mr Fletcher was aware of his obligations to the Court and attempted, within the limitations of his ability, to give answers which he thought were of the assistance to the Court and which were consistent with the opinions expressed by him in his report which became an exhibit before the Court.[7]
[7] Exhibit 3.
Mr Fletcher was vigorously cross-examined by Mr Morris of Queens Counsel in a focused and penetrative way as may well be expected in cross-examination by learned Queens Counsel.
In his report[8] Mr Fletcher had proffered the following observations:
“The subject tree canopy morphology age has been classified as ‘over-mature to early ancient stage’ as indicated in Plates 1.3., and 1.4. This is evident by the retrenchment of growth, reduction in net annual increment growth and increased vegetative vitality in the lower canopy/crown.”[9]
“In a declaration submitted by the plaintiff; Mr Morris, claims the subject tree continues to grow vigorously, and his quantification of tree growth refers to annual leaf, twig and branch shed in September/October period. In view of the plaintiff’s claims, I believe his visual observations are too sporadic to permit valid conclusions to be drawn from. The subject tree is a deciduous specimen and therefore leaf loss is a normal occurrence which is influenced by seasonal change. Extreme climatic events can also influence leaf loss. Consequently leaf loss is not a measure in determining tree vigor (the capacity for natural growth and survival).”[10]
[8] Exhibit 3 at pages 9, 13, 15 and 16.
[9] Exhibit 3 at page 9.
[10] Exhibit 3 at page 13.
“5.0 Conclusion
Trees exist in a state of internal and external flux with age playing a defining role. The dynamic interactions of the various tree parts are correlated through growth control regulators and resource allocations. From moment to moment, the aged tree specimen at 56 Windermere Rd, Hamilton is attempting to solve a series of simultaneous biological (a series of coincident events) equations based on age and climatic conditions.
Trees do not grow at random; but rather in predictable ways, following strict principles.
Important difference in phylogeny (the sequence of events involved in the evolutionary development of a species) and ontogeny (unfolding of events) exist between the root system of different tree species, and urban soil constraints. Nevertheless, compared with our understanding of the development of aboveground tree organs, our knowledge of the architecture of tree roots is limited. Roots of trees are opportunistic organs and their maximum penetration depends both on hereditary features of the species and soil properties. Availability of nutrients and aeration in the soil essentially control the rooting characteristics. While pioneer roots can extend many meters from the trunk, the constraints of soil exploration and photosynthate supply tend to limit the extent of most roots.
Based on the results of my findings, I conclude that the subject tree has reached maturity, and has commenced arresting its growth potential to retain equilibrium.”[11]
[11] Exhibit 3 at pages 15 and 16.
In the course of his cross-examination, notwithstanding the skill and incisiveness of the questioning, Mr Fletcher, essentially, “stuck to his guns” in the context of the opinions advanced by him in his report which was an Exhibit before the Court.
However, the extent of the assistance of his oral evidence to the Court was somewhat limited because I formed the opinion that he either did not listen to the questions or failed to fully understand the questions posed to him by Mr Morris.
As a consequence he gave answers which were initially in conflict with the opinions expressed by him but subsequently clarified by him to reveal a lack of insight into the questioning process and an inclination to stick by the opinions which he had earlier expressed.
An example of this might be found at pages 29, 30 and 31 of the transcript where Mr Fletcher was subject to cross-examination to what he meant by growth.
The natural inclination of the listener hearing of growth is to assume that a tree exhibiting the characteristics of growth was in fact becoming bigger whereas it transpired that Mr Fletcher’s evidence was to the effect that while the plant continued to survive, and indeed, to produce shoots and leaves and branches it was not, in the sense in which he used the word “growing” or becoming substantially bigger. Mr Fletcher’s report[12] reveals that between year 2009 and year 2011 measurement with a digital clinometer shows that the tree has increased in height from 22.5 to 23 metres and that the canopy spread has increased (in a north south direction) from 33.5 metres to 34 metres. The canopy spread and the edge of the drip line to the edge of the dwelling has remained unchanged.
[12] Exhibit 3 at page 7 section 2.4 table 1.
Nothing in the course of his cross-examination caused Mr Fletcher to resile from those particular observations.
It would seem that much turned upon the expression “growth potential” which, upon reflection, Mr Fletcher seemed to regard as a capacity for survival whereas the cross-examination of Mr Morris was focused on the notion that “growth potential” equated to the possibility of the tree continuing to grow larger.
From time to time I formed the view that it was, as Mr Morris attempted to do, futile to put to Mr Fletcher questions which related to the normal English meaning of the word “growth” because he has an entirely different concept in mind. It became clear that Mr Fletcher’s perceptions of the tree hinged very strongly upon the notion that it was “regulating growth” which I came to understand from his evidence to mean that it was in a phase where it was really not advancing but was in a phase of some stability prior to it entering into phase of “arresting”.
In an answer to Mr Morris of Queens Counsel where he enquired “The process of arresting that growth potential when it ends will mean that the tree will no longer have a growth potential; that's right, isn't it? Mr Fletcher responded “It's close”.
When Mr Fletcher was pressed with the following question “It will have a growth potential for the next couple of decades at least? Mr Fletcher responded “Well, you're going to get answers from me like "Likely", "Could possibly happen". I think you need to define it.”[13]
[13] T. 1-28 Lines 25-35.
Mr Fletcher ultimately conceded.[14] It begins “You're the one who says it has commenced arresting its growth potential-----?--Mmm-hmm. -----and you agree with me that that process of arresting-----?--I’m attempting to agree. -----may not finish for another two or three decades. Is that correct?--Sounding like it, yes. Indeed; thank you. And until that time is arrived at, the tree on - in your judgment, will continue to have a growth potential; is that right?-- The tree will survive and keep living.”
[14] T. 1-28 Line 42-55.
Following that, with respect to root masses on the subject land Mr Fletcher relied upon a Ground Penetrating Radar report prepared by Enspec Environment and Risk (Craig Hallam). No objection was taken to Mr Fletcher’s reliance upon Mr Hallam’s report and Mr Hallam was not required to be made available for cross-examination.
In any event, the ground penetrating radar report seems to me to be inconclusive and I accept the observations by Mr Fletcher that the ground penetrating radar report provided evidence of numerous root masses within the test area in which some areas appear to be associated with the subject tree but other roots are explicable by the presence of a mature Agathis Robusta and a Podocarpus Elatus which co-exist with the subject tree.
At the end of the day I really understood Mr Fletcher’s evidence to be to the effect that the tree was surviving and going through the normal cycle of such deciduous trees by producing leaves and branches, shedding them in the relevant season and then continuing to grow branches and leaves but within a relatively stable perimeter or, at least within a perimeter which was not growing substantially.
Such evidence is entirely consistent with Mr Fletcher’s conclusions which are set out above.
While some aspects of Mr Fletcher’s evidence were equivocal and while he acknowledged, in some contexts that the tree was “growing” I really took that to mean surviving. A careful examination of his responses to the vigorous cross-examination of Mr Morris of Queen’s Counsel, in my opinion, confirms this.
Moreover, Mr Fletcher was the only expert called and while I could rightly have some misgivings about aspects of his evidence it seemed to me that he was unshaken in advancing the proposition that the tree was mature and to use his words which are quoted above in any event that the tree has reached maturity and has commenced arresting its growth potential to retain equilibrium.
I am satisfied that his evidence has demonstrated that, as Mr Fletcher asserts in the conclusion of his report “the subject tree has reached maturity and has commenced arresting its growth potential to retain equilibrium.”
In coming to that view I should note that the cross-examination by Mr Morris of Queens Counsel revealed an unwillingness by Mr Fletcher to focus on the questions that he was asked. It seems that, while the tree has reached maturity and has commenced arresting growth potential, Mr Fletcher also acknowledges that there will be periods when there may be some small expansion in the canopy.
I do not accept that the tree is growing in any way which will lead it to have an increased impact on the subject land. I have come to the view that, notwithstanding some apparent small increase in the canopy acknowledged by Mr Fletcher, no change which has occurred to the tree has created a scenario in any way different from that which confronted His Honour Mr Smith in the previous appeals.[15]
[15] Morris v Department of Natural Resources and Water [2010] QLC 0021.
It is impossible for me to determine whether the root system has advanced or retreated since the 2009 report and appeals. There is no evidence which convinces me it has.
I was not assisted either by the affidavit of John Mulholland.[16] Mr Mulholland’s report was based upon an inspection in November 2007 and more than three years have passed since that time. Neither did, in my opinion, the statement of Mr GO Morris take matters any further.[17]
[16] Exhibit 1.
[17] Exhibit 2.
In his statement Mr Morris gave evidence of heaving of a section of concrete driveway in a neighbour’s property but there was no compelling evidence that that was as a consequence of the roots of the subject fig tree.
He also noted that in March 2011 he noticed roots which he says he had not previously encountered. I do not regard Mr GO Morris’s evidence as establishing that there has been any substantial spread of the root system since 2007.
I have set out at paragraph [34] the observations of His Honour Mr Smith in the 2010 appeal.
In that decision Mr Smith had gone on to accept that the extent of tree root inundation on the subject land was greater in 2006 and in 2007 than had been found to be the case as at 1 October 2001.
There was no satisfactory evidence before me that permits me to conclude that the spread of the roots has increased since 2009.
In the previous decision, His Honour Mr Smith observed:
“for the purposes of determining the respective unimproved valuations of the subject property as at 1 October 2006 and 1 October 2007, and taking into account all of the evidence before me, and in particular the evidence of Mr Morris and Mr Mulholland and in order to provide some degree of certainty as between the parties with respect to an ongoing issue which has been the subject, as indicated, of numerous appeals before the Land Court, I am prepared to accept that the tree the subject of the VPO has in fact caused the greatest impact to the subject land, given the constraints and hypothetical analysis that the VLA requires the Court to undertake, that the said tree can in fact make.”[18] It is regrettable that His Honour did not choose to explicitly make that a finding of fact.”
[18] Morris v Department of Natural Resources and Water [2010] QLC 0021, paragraph 60.
Having had an opportunity to review the photographic evidence contained in Mr Fletcher’s report (subsequent to my inspection) I have come to the view that the canopy of the tree has, in any event, not materially increased in size since the 2006/2007 up to the present.
Similarly there was no evidence which persuaded me that the extent and mass of the root system has materially increased or increased at all.
In my view Counsel for the respondent sums up the relevant factual matrix quite concisely in paragraph 35 of its submissions where he says:
“The impact of the tree on unimproved value relates to the fact its roots system is substantial and invasive, and the existence of the VPO means that there is no automatic legal right to simply remove the tree. A prospective purchaser would approach the subject property on the basis that it is unlikely that (sic) be granted approval to remove the tree, and that there would be a considerable degree of uncertainty as to the extent, if any, to which it might be permitted to trim the tree or its roots for the purposes related to, for example, installing a house extension or tennis court in the rear of the property.”
Having regard to all of the evidence available to me I find, as a matter of fact, that:-
(a) the subject tree has entered a stage of maturity and has commenced arresting its growth potential to retain equilibrium by which mean that any change in the size of the tree and the extent of the root invasion under the land is unlikely to change substantially in the near or far future; and
(b) the impact upon the subject land has reached a point where it is as great as it ever will become.
I note the concession in the respondent’s submissions that notwithstanding that His Honour Mr Smith in the 2006/07 appeals found that the tree at the time of those appeals had “caused the greatest impact of the subject land… that the said tree can make”, that does not bind me to that same view.
I accept the proposition advanced by the respondent however that the appellant is not entitled to ask me to make findings of fact about matters existing or occurring on or before 1 October 2007 which are inconsistent with the specific findings of fact made in the 2006/07 appeals because of the issue estoppel which arises in respect in any such findings of fact.
In that regard I note the reference by the respondent to the relatively recent decision in Castilion v P & O Ports Limited[19] and the reference in that decision to Blair v Curran.[20]
[19] (2008) 2 QdR 219.
[20] (1939) 62 CLR 464 at 531-532.
I do not feel that it is necessary to refer in detail to those decisions.
The valuation evidence of Ms Manners
Ms Manners was the valuer called by the respondent. As observed above the appellant chose not to call any valuation evidence, rather relying upon cross-examination of Ms Manners in an attempt to expose weaknesses in her reasoning and approach to the necessary valuation exercise.
In the course of his cross-examination, Mr Morris did manage to extract from Ms Manners an acknowledgement that the presence of the roots of the tree on the subject site would necessarily be a consideration in the mind of a hypothetical purchaser.[21]
[21] T.1-57.
Ms Manners did not however agree that with root network that presently exists, it would be impossible to build anything on the subject land.
Ms Manners placed substantial weight upon the prospect of obtaining, subject to making a proper application, a permit from the Brisbane City Council to interfere with the root system of the tree so as to enable a dwelling to be constructed on the subject site, the existing dwelling having been notionally removed from the land for the purpose of the valuation.
Ms Manners also attached some weight to the notion of installing a root barrier to stop the spread of the roots from the tree towards any residence that might be constructed on the subject land.[22] That proposition was also advanced by Mr Fletcher.
[22] T.1-53-55.
I accept that the discussions which Ms Manners gave evidence of having had with Mr Coulton from Root Barriers who she told the court is the person who installs most of the root barriers on the north side of Brisbane and, in the past, with Mr Hillhouse of the Brisbane City Council gave her a fair basis for optimistically assuming that a hypothetical purchaser would obtain permission to both interfere with the root system of the tree and construct a dwelling on the subject house. Ms Manners made the point that compromising the spread of the roots does not necessarily compromise the existing tree.[23] The notion of a root barrier is consistent with the evidence given by Mr Fletcher in that regard.
[23] T.1-59 L.8.
In one passage of cross-examination Mr Morris put the following to Ms Manners:[24]
You see, I - I actually put to him your words from your report where you refer to significant - "that neither it nor its root system will grow significantly larger", and he repudiated the word "significantly". You heard that, didn’t you? You heard him say-----?--Well, he - I-----
-----"Well, what is 'significant'?"?--
to which Ms Manners replied:
I understood that he - he may have had a - a different or he - he had a definition of "significant" that may not - that may have been something different than-----
[24] T.1-51 L40.
A careful re-examination of the transcript from the hearing reveals that, in fact, Mr Morris had not as he recalled put precisely Ms Manners’ words to the witness.
He may have meant to but the reality is that he did not.
What did transpire is what is recorded in the following passage:[25]
No worries. But the reality is that from your knowledge of this tree, from what you've observed, from your observation of its present condition, from your observation of its growth over the past two years, from the condition of its leaves and everything else, it is a tree which may well have had significant growth over the past 14 years as depicted in the VPO order?-- The tree has a potential to grow, yeah. I'm - I'm not quite sure what you mean by significant. To me in the terms of a broad [indistinct] significant means something of a grand stature, you know, so-----
No, I'm not suggesting grand stature, I'm not suggesting that for a moment?-- Okay. Well-----
I'm suggesting growth of the extent which reflects the difference between what is in this VPO and what is observed in 2011?-- I can only answer from - possibly.
Possibly?-- Yeah, if that helps.
[25] Page 36 L53.
In his cross-examination of Ms Manners, Mr Morris attempted to extract from her a concession that the land was effectively unable to be utilised for residential purposes.
That line of cross-examination ignores the reality that the land presently has constructed on it, as I have observed above, a substantial residential dwelling and a swimming pool. It should be acknowledged immediately, of course, that the notional valuation exercise contemplates the subject land barren of any improvements.
However that is not the end of the matter when one has regard to the provisions of s.3(4) of the Valuation of Land Act which provides as follows:
3 Meaning of unimproved value
…
(4) Notwithstanding anything contained in this section, in determining the unimproved value of any land it shall be assumed that—
(a)the land may be used, or may continue to be used, for any purpose for which it was being used, or for which it could be used, at the date to which the valuation relates; and
(b) such improvements may be continued or made on the land as may be required in order to enable the land to continue to be so used; and
(c) there is no greater risk than that which applied to the actual use of the land in its actual condition, on the date of valuation, in realising the use of the land, or continuing the use of the land, for any purpose for which it was being used on the date of valuation; but nothing in this subsection prevents regard being had, in determining that value, to any other purpose for which the land may be used on the assumption that any improvements referred to in subsection (1) had not been made.
That section was referred to in the previous appeal and in his decision, His Honour Mr Smith, observed (at para [57]):[26]
“It is a legislative requirement that the land in question be valued in a notionally unimproved state and on the basis that the use to which such land was put before the improvements were hypothetically removed would continue into the future. In short, s.3(4) requires the Court to take into account that the land is to be considered at the valuation date as being notionally unimproved but capable at law of having a house put on it. In Kent Street Pty Ltd & Ors v Department of Natural Resources and Mines, the Land Appeal Court explained the operation of the various elements of s.3 of the VLA, including, specifically, s.3(4). I respectfully adopt the reasoning of the Land Appeal Court.
For my part I adopt the articulation of the relevance of that section as provided by His Honour in the previous appeal.
[26] Page 14 para [57].
While the cross-examination of Ms Manners was vigorous with respect to the basis for her opinion about the 25% she was not pressed at all about comparable sales.
Nor was she pressed about the schedule of sales provided by her and the use she made of comparison of those sales with the subject land.
Nor was she challenged about her valuation of the subject land at a figure of $2,100,000 exclusive of the impact of the VPO as at 1 October 2009.[27]
[27] Exhibit 4 page 7 section 5 - basis of valuation.
The cross-examination of Ms Manners seemed, to me, to focus upon trying but failing to extract a concession from her that the impact of the VPO on the subject land was to render it entirely unusable, in the hypothetical valuation exercise, for residential purposes. As indicated above, I reject that contention.
Because of the findings which I have made above in respect of the evidence given by Mr Fletcher, having due regard as well to the evidence in the statement of the deceased Mr Mulholland and in the statement of Mr GO Morris, I accept the evidence of Ms Manners that 25% is the appropriate discount for the valuation of the land consequential upon the presence of the vegetation protection order over the subject fig tree.
Applying the 25% discount to the $2,100,000 figure generates a valuation of $1,575,000 which I find to be the appropriate valuation.
The appellant, acknowledged in submissions that it bore the onus of proof on this appeal and for the reasons set out above I find that it has not satisfied that onus so that the provisions of s.33 prevail, that is to say that it has not been demonstrated that in making the valuation the Valuer-General acted upon a wrong principle or made a serious error of fact.
Order
1. The appeal is dismissed.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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