Ogg v Department of Natural Resources and Water
[2008] QLC 157
•12 August 2008
LAND COURT OF QUEENSLAND
CITATION:Ogg v Department of Natural Resources and Water [2008] QLC 0157
PARTIES:Peter G Ogg and Sally Ogg
(appellants)
v
Chief Executive, Department of Natural Resources and Water
(respondent)
FILE NO:AV2006/0295
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 “Talkara” as at 1 October 2005 is determined at Nine Hundred and Eighty-five Thousand Dollars ($985,000).
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
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
The Ogg family are the owners of an aggregation comprising the subject property, “Talkara”, the adjoining property, “Ayrshire Downs” and “McKenzie”, situated to the north of “Talkara”. 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.
“Talkara” comprises an area of 11,246 ha and is situated about 50 km north-west of Winton. As at 1 October 2005, the Department applied an unimproved value of $1,250,000, or $111.15/ha, to that property. The owners appealed against that valuation, advising that their estimate of the unimproved value is $60,000. Their grounds of appeal contend:
· lack of relativity between the valuation and valuations of other properties;
· the Department overestimated the carrying capacity of the country;
· the Department did not have proper regard to the quality of the country, the deterioration of the land because of the poor seasons, or the increased prickly acacia infestation.
The owners were represented at the hearing by their agent, Mr A Boyd. As with the other landowners represented by Mr Boyd, their cases were tried by fast-track hearing, whereby 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 36 and Elliott v Department of Natural Resources and Water [2008] QLC 40.
The Evidence for the Appellants
Evidence for the appellants was given by Mr PG Ogg, who maintained that the country on “Talkara” was far inferior to the country on the selected case “Bonnie Downs”. He estimated that 25% of the property contained poorly grassed gidyea-stone areas, which grow only patchy Mitchell grass and herbage. There are also large areas of ashy country, far greater in extent than the ashy country on “Bonnie Downs”. Mr Ogg referred to the various types of country on a map attached to his statement,[2] and tendered a series of photographs.[3]
[2] Exhibit 2.
[3] Exhibits 3 and 4.
In its decision in the Ogg family’s appeal against the 2001 valuation of “Talkara”, the Land Court had accepted that prickly acacia infested approximately 18% of “Talkara, for which it made an allowance of 3.5%.[4] According to Mr Ogg, the prickly acacia has increased in density and area, despite control measures of pushing and poisoning being undertaken by the owners. He contends that a greater allowance should now be made for this disability. Despite the estimate of unimproved value in the notice of appeal, Mr Ogg contends that by comparison with the “Bonnie Downs” decision the valuation of “Talkara” should be $92/ha, less an allowance of 6% for prickly acacia infestation, resulting in a valuation of $86.45/ha.
[4] Ogg v Department of Natural Resources and Mines [2004] QLC 98 at [38].
The Evidence for the Department
Evidence for the Department was given by registered valuer, Mr DA Routh, who assessed “Talkara” 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 “Talkara” and revised his valuation. He now leads evidence to a valuation of $985,000, or $87.59/ha.
Mr Routh described “Talkara” as comprising predominantly open Mitchell grass downs, but mostly pebbly with stony patches, lightly shaded with Coolibah along the creeks and gullies, but the balance area is sparsely shaded with odd whitewood and vinetree. The north-western end of the property fronts the Wokingham Creek and its associated channels.
He classified the country as comprising:
10,846 ha (96.5%) downs, with a carrying capacity of 1 sheep to 1.8 ha and
400 ha (3.5%) channels, with a carrying capacity of 1 sheep to 1.8 ha.Mr Routh was aware of the extent of the prickly acacia infestation which had been recognised by the Land Court in the appeal against the 2001 valuation, where the Court had made an allowance of 3.5%. Mr Routh maintained that he had continued that allowance in the valuation for which he now contends.
Mr Routh maintains that his revised valuation of $87.59/ha would be in proper relationship to the Court’s determination of the valuation of “Bonnie Downs” at $110/ha. “Bonnie Downs” is situated on the eastern side of the Winton-Hughenden railway line and it is common ground that it is superior country to the Ogg family’s properties. That figure of $87.59/ha, according to Mr Routh, takes into account the 3.5% allowance for the prickly acacia infestation.
Mr Routh does not dispute Mr Ogg’s description of the property or the areas of stony and ashy country. However, he contends that a carrying capacity of 1 sheep to 1.8 ha is appropriate, as it has long been recognised as the traditional carrying capacity for properties in the area. He does not dispute that during the recent poor seasons, the owners would not have achieved that carrying capacity. However, for the purposes of comparison he maintains that the traditional carrying capacity should not be extended, although he concedes that it is more difficult to run 1 sheep to 1.8 ha in this area than it is to run sheep at that rate further to the east.
The Issues
There is essentially no issue about the classification of the property or its comparison with the selected case, “Bonnie Downs”. The principal issues relate to the carrying capacity and the extent and effect of the prickly acacia infestation.
I accept Mr Ogg’s evidence about the fragility of the country and that it is only possible to carry sheep at the rate of 1 sheep to 1.8 ha in the better seasons. However, it seems that carrying capacities are assessed by the Department only for the purposes of comparison, not as an indication of what individual owners should run on their properties. As long as they are assessed consistently, they provide a useful measure for comparison
Mr Routh has inspected the subject property and the other properties in the aggregation, as well as numerous other properties in the area. As a professional valuer he is in a better position to make comparisons between the determinations in the selected cases, “Bonnie Downs” and “Belmont”. I therefore accept his assessments, based on those comparisons.
The only remaining issue is the extent of the allowance that should be made for the prickly acacia infestation. It seems that prickly acacia is widespread throughout this area of the Winton Shire. In Mr Routh’s opinion, the infestation of “Talkara” is not as severe as on the other components of the family’s aggregation and by no means the most severe infestation in the area.
In the circumstances, I must accept Mr Routh’s opinion. He is best able to make comparisons between the various properties and arrive at what he considers to be an appropriate allowance. In the absence of evidence to the contrary, I accept his assessment of the revised valuation of “Talkara”.
Order
The appeal is allowed, the valuation of the Chief Executive is set aside and the unimproved valuation of “Talkara” as at 1 October 2005 is determined at Nine Hundred and Eighty-five Thousand Dollars ($985,000).
JJ TRICKETT
MEMBER OF THE LAND COURT
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