Morris v Valuer-General - [2011] QLC 78

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 Respondent

Legal 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QLC 78
Decision Date: 20 December 2011

CaseChat Overview and Summary

In Morris v Valuer-General, the dispute centered on the valuation of a property in Hamilton, which was subject to a Vegetation Protection Order (VPO) due to a large fig tree on the property. The court was tasked with determining whether the tree's presence and the restrictions imposed by the VPO affected the land's suitability for residential purposes, and if so, how this should be reflected in the property's valuation.

The legal issues before the court included the impact of the VPO on the property's development potential and its suitability for residential use, the admissibility and weight of expert evidence regarding the tree's growth and vitality, and the application of issue estoppel to the valuation process. The court had to decide whether the land remained suitable for residential purposes and if a 25% allowance was appropriate given the circumstances.

The court reasoned that the tree had reached maturity and had begun to arrest its growth, which had an impact on the property's development potential and residential suitability. The court considered the expert evidence provided by Mr. Fletcher, though it found his cross-examination responses lacking in responsiveness and understanding. The court dismissed the appeal, concluding that the valuation process had adequately considered the restrictions imposed by the VPO and that the 25% allowance was justified. The final order was that the appeal was dismissed.

Orders

Orders of the court

1. The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 ConclusionTrees 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Respondent Legal Services – Department of Environment and Resource Management