Ogg v Department of Natural Resources and Water

[2008] QLC 158

LAND COURT OF QUEENSLAND

CITATION:Ogg v Department of Natural Resources and Water [2008] QLC 0158

PARTIES:David E Ogg, John W Ogg and Peter G Ogg

(appellants)

v

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

FILE NO:AV2006/0297

DIVISION:Land Court of Queensland – General Division

PROCEEDING:  An appeal against an annual valuation

DELIVERED ON:                  12 August 2008

DELIVERED AT:                   Brisbane

HEARD AT:Winton

MEMBER:Mr JJ Trickett

ORDER:The appeal is allowed, the valuation of the Chief Executive is set aside and the unimproved value of “McKenzie” as at 1 October 2005 is determined at One Million and Fifty Thousand Dollars  ($1,050,000).

CATCHWORDS:                  Unimproved value – grazing property in Winton Shire – relativity with valuations of other properties – direct comparison with determinations of selected cases – allowance for prickly acacia infestation – Valuation of Land Act 1944

APPEARANCES:                  Mr A Boyd, agent, for the appellants

Mr W Isdale, Executive Legal Consultant, Crown Law, for the respondent

1. This is an appeal by landowners in the Shire of Winton against the unimproved value applied to their land by the Chief Executive, Department of Natural Resources and Water (the Department) as at 1 October 2005 under the provisions of the Valuation of Land Act 1944 (the Act).

Background

1. The Ogg family are the owners of an aggregation of three properties, including "Ayrshire Downs", "Talkara" and the subject property, "McKenzie".  The owners lodged separate appeals against the valuations of each of the three properties.  The valuation of "Ayrshire Downs" was determined by consent at $1,157,000, or $84.11/ha.  The other two appeals were heard separately at the request of the appellants.  The unimproved value of "Talkara" has been determined at $985,000, or $87.59/ha.

2. "McKenzie" has an area of 13,060 ha and is situated about 73 km north-west of Winton, with access by 50 km of the bitumen sealed Winton to Cloncurry Road and 23 km of the Wokingham Stock Route Road, which is predominantly a formed earth road, impassable for weeks at a time after heavy rain.  As at 1 October 2005, the Department applied an unimproved value of $1,150,000 or $88/ha, to that property.  The owners appealed against that valuation, advising that their estimate of the unimproved value is $52,000. 

3. The owners grounds of appeal raise a number of issues, including:

   ·        the  of relativity between the valuation and the valuations of other properties;

   ·        the Department overestimated the carrying capacity;

   ·the failure of the Department to take into account the inferior country, the increasing prickly acacia infestation, the shallow stony soil and the bare gidyea-stone area;

   ·the deterioration of the land resulting from continuing poor seasons.

4. The owners were represented at the hearing by their agent, Mr A Boyd.  As with other landowners represented by Mr Boyd, their cases were tried by fast-track hearing, where evidence was confined to comparisons with the determinations of the valuations of selected cases, "Bonnie Downs" and "Belmont", and the sales relied upon in the determination of those appeals.[1]  However, evidence of the differences between individual properties was also heard. 

   [1]     Fawckner v Department of Natural Resources and Water [2008] QLC 0036 and Elliott v Department of Natural Resources and Water [2008] QLC 0009.

The Evidence for the Appellants

1. Evidence for the appellants was given by Mr PG Ogg, who emphasised the fragile nature of the country.  He estimates that about 40% of the property comprises stony/pebbly country, growing little grass, while the balance of the property is mainly ashy country, together with areas of Bull Mitchell grass.  Mr Ogg estimates the area of ashy country at 30%, which means approximately 70% of "McKenzie" is lightly grassed country.  In addition, there are areas of claypan along the creek system running into the Wokingham Creek channels along the south-eastern boundary.  Silt in the gullies running into Wokingham Creek becomes boggy.  He estimates that about 14% of the property is Bull Mitchell grass country in the low-lying run-off areas from McKenzie Rise and along Wokingham Creek.

2. Mr Ogg disagreed with the Department's historical carrying capacity of 1 sheep to 1.8 ha.  He maintained that the carrying capacity was more like 1 sheep to 6 acres (1 sheep to 2.4 ha) and in dry times 1 sheep to 8 acres (1 sheep to 3.2 ha).  He regarded the country on "McKenzie" as fragile and it was only by conservative stocking that the family had been able to stay on the property for so long.  In his opinion, "McKenzie" was the lightest carrying country of the aggregation, with "Ayrshire Downs" being the best, followed by "Talkara". 

3. "McKenzie" is also the worst affected by prickly acacia.  In the appeals against the 2001 valuations, the Land Court had made an allowance of 10% of prickly acacia infestation.[2]  Mr Ogg maintains that the infestation has thickened and extended since 2001, so that prickly acacia now extends over approximately 30% of the property. 

   [2]     Ogg v Department of Natural Resources and Mines [2004] QLC 98 at [37].

4. Although he had not inspected the selected properties, "Bonnie Downs" and "Belmont, he knew that they were reputed to be superior to "McKenzie".  He therefore could not compare "McKenzie" directly with either property, which the Court had determined at $110/ha and $105/ha respectively.  However, he knew the nearby properties "Moreena", which the Court had determined at $88.42/ha, and "Ingle Downs", which the Court had determined at $86.90/ha, by comparison with "Bonnie Downs".  In Mr Ogg's opinion, "McKenzie" is inferior to both "Moreena" and "Ingle Downs" and on that basis he contends for a value of $76.25/ha. 

The Evidence for the Department

1. Evidence for the Department was given by registered valuer, Mr DA Routh, who assessed “McKenzie” by reference to the Department’s historical record, with the assistance of the WARLUS land system mapping, regional eco-system mapping and satellite imagery.  He had subsequently inspected "McKenzie" and revised his valuation.  He now leads evidence to a valuation of $1,050,000, or $80.40/ha. 

2. Mr Routh describes "McKenzie" as predominantly open Mitchell grass downs, mostly pebbly with stony patches, lightly shaded with Coolibah along creeks and gullies, with the balance partially shaded with odd whitewood and vinetree.  There is a timbered ridge running along the western boundary.  Wokingham Creek and associated channels run along the south-eastern boundary of the property. 

   He classified the country as comprising:

   11,000 ha (84%) downs with a carrying capacity of 1 sheep to 1.8 ha; and
   2,060 ha (16%) channels, with a carrying capacity of 1 sheep to 1.8 ha.

3. Mr Routh did not agree with Mr Ogg's assessment of carrying capacity, even though he agreed generally with his description of the property.  He maintained that individual landowners have different stocking rate policies, but for purposes of comparison with other properties in the area, he had adopted a carrying capacity of 1 sheep to 1.8 ha for "McKenzie".  However, he conceded that the country was inferior to properties with a similar carrying capacity situated east of the Hughenden railway line.  He agreed that it was inferior to the sale property, "Dahlia", for which the Department had assessed at a carrying capacity of 1 sheep to 1.8 ha and applied an unimproved value of $112.50/ha. 

4. Mr Routh was well aware of the extent of the prickly acacia infestation on "McKenzie" and agreed with Mr Ogg that it was the worst affected of the three properties comprising the family aggregation.  He maintained that he had continued the 10% allowance for that infestation. 

5. Having inspected the aggregation, by comparison with the determinations of the selected cases, Mr Routh was of the view that the valuation of $88/ha should be revised and that a valuation of $80.40/ha was appropriate for "McKenzie". 

The Issues

1. There is little in dispute between Mr Ogg and Mr Routh regarding the physical description of "McKenzie".  They disagree about the carrying capacity.  Mr Routh does not dispute the conservative stocking rates adopted by the owners, but has explained that for the purposes of comparison with other properties in the area, he is of the view that a carrying capacity of 1 sheep to 1.8 ha should be adopted.

2. In the circumstances, I must accept Mr Routh's opinion of those comparisons.  However, from the evidence in this case, it is clear that "McKenzie" consists of a large proportion of lightly grassed country, compared with the generally heavier Mitchell grass black soil downs in the vicinity of the "Bonnie Downs" and "Belmont" selected cases.  As I pointed out in the decision in the "Bonnie Downs" case, it seems to me that there is some disparity in carrying capacities assigned by the Department to various properties in the Winton Shire.[3]  It is to be hoped that the Department will undertake a comprehensive review of carrying capacities in the area when making the next valuation of the western Shires.

   [3] [2008] QLC 36 at [47] to [57].

3. Mr Routh has inspected this property and the properties in the area.  He is, therefore, better able to make comparisons between properties.  However, for the reasons mentioned in the "Bonnie Downs" case, I prefer to avoid comparisons on a carrying capacity or sheep area basis and to compare country for country hectare for hectare. 

4. Although there was an issue as to the extent and effect of the prickly acacia infestation on "McKenzie", Mr Ogg accepted the allowance of 10% determined by the Land Court in its decision on the appeal against the 2001 valuation of the property.[4]  According to Mr Routh, he applied the 10% allowance for prickly acacia in his revised valuation of $80.40/ha.  Although Mr Routh did not provide the details of that calculation, I accept that the 10% allowance has been made.

   [4]     Ogg v Department of Natural Resources and  Mines [2004] QLC 0098.

5. Mr Ogg rates "Ayrshire Downs" as the best country of the three aggregation properties, with "Talkara" the second and "McKenzie" as the worst.  I have determined the valuation of "Ayrshire Downs" at $84.11/ha by consent.  That was based on Mr Routh's revised valuation.  I have since determined the valuation of "Talkara" at $87.59/ha.  That was also based on Mr Routh's revised valuation. 

6. Although the valuation per ha of "Ayrshire Downs" is lower than the valuation per ha of "Talkara", it seems to me that Mr Ogg may have been referring to the better downs country on "Ayrshire Downs" and not taking into account the effects of the unusable hilly country.  Be that as it may, it is common ground that the valuation of "McKenzie" should be less per ha than applied to the other two properties.

7. Mr Routh's revised valuation is at $80.40/ha, which he contends is appropriate having regard to his revised valuations of "Ayrshire Downs" and "Talkara".  He is a registered and experienced valuer and has inspected the properties.  In the circumstances, I accept his opinion. 

Order

The appeal is allowed, the valuation of the Chief Executive is set aside and the unimproved value of “McKenzie” as at 1 October 2005 is determined at One Million and Fifty Thousand Dollars ($1,050,000).

JJ TRICKETT
MEMBER OF THE LAND COURT