Ogilvie v Chief Executive, Department of Natural Resources

[1999] QLC 15

[1999] QLC 15

 

LAND COURT

BRISBANE

5 MARCH 1999

Re:     AV98-602

An Appeal against a Determination of Unimproved Value –
Valuation of Land Act 1944 –
  Local Government:    Wambo

E.L and I.A.R. Ogilvie

v.

Chief Executive, Department of Natural Resources

(Hearing at Dalby)

D E C I S I O N

Mr and Mrs Ogilvie are the registered proprietors of a property known as "Bon Accord", situated about 10 km west of Dalby, with frontage to the Warrego Highway.  The Condamine River forms the southern boundary and Spring Creek intersects the northern section of the property.
           "Bon Accord" contains an area of 575.1 ha.  The real property description is as follows:

Lots 222-227 on Crown Plan A3451, Lot 1 on Registered Plan 28520, Lots 1-2 on Registered Plan 57124, Lot 2 on Registered Plan 135112 and Lot 2 on Registered Plan 177193, Parish of Myall.

As at 1 October 1997 the unimproved value of the land was assessed by the Department of Natural Resources in the amount of $172,500. Mr and Mrs Ogilvie appealed against that assessment, contending for an unimproved value of $138,000. Pursuant to s.68 of the Valuation of Land Act, the chief executive reviewed the valuation and reduced it to $160,000.  That is the valuation now appealed against.
           Mr Ogilvie conducted the appellants' case.  Both he and Mrs Ogilvie gave evidence.   The grounds of appeal include an allegation that works, including a large ring tank (said to have been constructed, in part, over a stock route) on a neighbouring property, have caused increased flood flow into the Condamine River and as a consequence, erosion damage on the subject property.  It was the opinion of the appellants that "Bon Accord" comprises only "around 400 acres of good cultivation and the rest flood and swampy country".  A licence to irrigate 80 acres (32 ha) and the associated irrigation plant was said to have been rendered ineffective due to demand by other irrigators exceeding the available supply of water.  Difficulty was being experienced with underground water supplies which, apart from being brackish, were diminishing in volume, through, in the appellants' opinion, irrigation demands for cotton crops in the locality.
           The grounds of appeal also referred to the perceived deleterious effect on unimproved value resulting from chemical overspraying and drift from neighbouring cotton-growing activities, together with pollution of the watercourses through various local activities, including the alleged practice of the Dalby Town Council directing solids from bore water into the Condamine River.
           Mr Ogilvie tendered a statement and gave evidence dealing generally with the grounds of appeal and his concerns relative to the future of localities in which cotton growing is practised.  He spoke of the prevalence of "Condamine couch" on much of the subject property and the cost of the appellants' efforts to control both this grass, as well as erosion, through the introduction of improved pastures.
           However, it is clear that the main concerns of the appellants related to the interference to their enjoyment of the property and grazing livelihood, through use of a neighbouring property for the growing of cotton and the resultant use of pesticides and aerial spraying during the growing season.  Mr Ogilvie's evidence indicated that chemical management practices on the immediately adjoining property are unacceptable to the appellants.  They are clearly frustrated by the lack of control they have been capable of exercising over a particular aerial spraying operator, and their inability to maintain a pollution-free environment within their own property boundaries.  Mr Ogilvie spoke of the "E-list" classification of cattle which, as I understand it, has been recently introduced in association with a survey to test cattle sold from cotton-growing localities, for endosulfan residues.  Mr Ogilvie interpreted the E-list as meaning "We are found guilty without a trial because we join a cotton property and we have to lodge a form saying that we join cotton …  We get less for E-listed cattle."  At Mr Ogilvie's request, the Court viewed part of a video film which was intended to demonstrate aerial spraying practices in an unidentified locality and the concerns of residents in that cotton-growing locality as to effects on health and property values.
           The appellants had found the need to purchase filtered water, face masks, asthma sprays and various medical-related aids.  They had also purchased equipment – wind socks and a wind meter to allow the monitoring of prevailing winds.  Mrs Ogilvie spoke of the infiltration of chemical fumes into the dwelling and the perceived health risks involved.  She provided photographic evidence of indoor pot plants which she believed had succumbed to chemical poisoning as had, she suspected, many young plants in the home garden. 
           Valuation evidence was given by Mr J.C. Stevenson, a registered valuer employed by the Department of Natural Resources.  He had not been responsible for the initial valuation appealed against, but had carried out an inspection of the property and the relevant sales evidence, specifically as a result of this appeal.  It was his opinion that a reduction in the initial valuation had been warranted particularly as he accepted that the added value of the irrigation licence had been negated by the reduced volume of irrigation water and the level of chemical contamination said to have existed in the river water, when it was available.  It was his opinion that rather than classifying an area of 32 ha as being irrigable as was the case in the initial valuation, the cultivation land should instead be regarded as suitable only for dry land farming.  He also found after the inspection that a slightly smaller total area of land suitable for cultivation was available in comparison with the previously adopted classification.  The initial valuation had incorporated an allowance for severance and access disabilities (caused as I understand it primarily by Spring Creek) for each of the classifications of country and that allowance was maintained.
           Mr Stevenson's valuation was calculated as follows:

279.5 ha (48.5%) arable box forest suitable for
           dry land farming @ $400 per ha x factor of 0.9
           (severance/access)  $100,620

96 ha (16.5%) arable box forest (flood affected)
           suitable for dry land farming @ $320 per ha x factor
           of 0.9 (severance/access)  $27,648

199.6 ha (30.5%) broken river frontage suitable for
           grazing @ $175 per ha x factor of 0.9 (severance/access)  $31,437

Total  $159,705

Adopt  $160,000

Mr Stevenson had given consideration to the appellants' opinion that the area suitable for cultivation was only 400 acres (161.8 ha) but was confident that his estimate on review, was accurate.  He pointed out that Mr Ogilvie's management practice had been not to cultivate the total area previously developed for such use.  However that, in his opinion, was not indicative of the full potential of the land overall, but more Mr Ogilvie's preference to use the property for grazing purposes.  Mr Stevenson agreed that Condamine couch was prevalent in the lands used for grazing but felt that it was a problem common in the river country within the locality, and capable of control by cultivation in the arable areas. 

Mr Stevenson was comfortable with the relativity of values applied to the various classifications, in comparison with values applied to other lands in the locality.  The levels of value applied were, in Mr Stevenson's opinion, well supported by the overall sales evidence.  The details of two sales of properties to the east and north-east of Dalby were offered as providing supporting evidence of value. 
           Mr Ogilvie did not consider the sales evidence as provided by Mr Stevenson, to be of assistance in the valuation of the subject property.  However he produced no alternative evidence of value.  Instead he relied on the opinion that there were so many disabilities associated with the property that no increase above the previous valuation was warranted.  He suggested that it was well appreciated in the local marketplace that it would be near impossible to sell a grazing property adjoining a cotton farm because of the associated overspraying and contamination problems.  It was his theory that, in general, cotton-growing activities in a locality became so dominant that other rural activities would be unable to survive and eventually forced to relocate.  In his opinion, there was too much broken river country on "Bon Accord" for it to create any adjoining owner interest for cotton growing use.  He saw one of the past advantages of the property for grazing use as being the availability of a stock route adjoining to the east which allowed cattle to be walked to sale yards (if that practice was necessary).  However, the construction of the ring tank over the stock route had removed that perceived advantage.
           After hearing the evidence of the appellants, there is no doubt that they see their property as being subjected to a form of trespass by the practices of a neighbouring cotton farmer.  They see the cotton-growing industry as having a destructive influence which will contaminate lands to such a degree that the cotton-growing localities will eventually be rendered useless for primary production. 
           Even if that opinion was proved correct, the paradox is, according to Mr Stevenson's evidence, that potential for cotton growing was, at the date of valuation, having an appreciating effect on market value of suitable arable lands in the Wambo Shire.  As I understood the evidence, the sales evidence adopted for a basis in the valuation of the Shire, excluded many sales which, had they been adopted as basic evidence, would have shown higher levels of values than those applied. 
           At the time of the hearing, which was well after the relevant date of valuation, there is considerable debate about chemical management associated with the cotton spraying season.  In particular, the endosulfan residue problems which have brought about the "E-listing" of properties, is understandably causing concern amongst affected graziers. 
           It is not difficult to accept that if the controversy deepens and testing of cattle shows prevalent instances of unacceptable chemical residues then E-listed grazing lands adjoining cotton farms or subject to contamination from such farming activities, will become difficult to sell except at depreciated levels of value.  However, in valuation matters of this nature, for an argument such as that put forward by the appellants to succeed, there would need to be evidential proof of market resistance to grazing lands within cotton-farming localities, either through demonstrated lack of market interest or resultant depreciated values.
           In any event, the subject property has arable potential which dominates its market value.  It is seen as unlikely that the chemical contamination issue would become an impediment to its saleability for its highest and best use which is more valuable than for pure grazing.  Certainly there is no market evidence before the Court to suggest that adjacency to a cotton farm had caused deleterious effect on values as at the relevant date of valuation in this matter.
           The appellants have been able to show that their property suffers disabilities of some significance to them.  However, I am satisfied on the evidence before me that where those disabilities are likely to have affected unimproved value, they have been duly considered by the chief executive's valuer and reflected in the amended valuation now appealed against.  There seems to be some uncertainty as to how the original stock route to the east of the property came to be obstructed by the ring tank, but I am not convinced that the unavailability of the stock route would, with modern stock transport practices, have any perceptible effect on unimproved value.
           In my opinion the appellants have not shown that the valuation appealed against is wrong or incapable of support from the adopted sales evidence.
           The appeal is disallowed and the valuation of the chief executive affirmed.

RE WENCK

MEMBER OF THE LAND COURT