Robino & Robino v Chief Executive, Department of Natural Resources and Mines
[2001] QLC 19
•12 April 2001
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BRISBANE
12 APRIL 2001
Re: AV99-06
An Appeal against an Unimproved Valuation
Valuation of Land Act 1944
Local Government: Hinchinbrook
David J and Ronald A Robino
v.
Chief Executive, Department of Natural Resources and Mines
REASONS FOR JUDGMENT
This matter arises under the Valuation of Land Act1944 pursuant to which the Chief Executive valued land owned by the appellants as at a relevant date of 1 October 1997 at a figure of $215,000. The appellant contends for a figure of $170,000. David Joseph Robino, a co-owner appeared for the appellants and gave evidence in support of the appeal. Peter Geoffrey Simmonds, a registered valuer in the employ of the Chief Executive, provided valuation evidence in support of the valuation appealed against.
The land, the subject of this appeal, has an area of 66.47 ha and comprises land used for sugar-cane growing purposes. The land is located on Mizzis Road, Braemeadows, approximately 3.4 km south of Cordelia and 13 km east north-east of the Ingham Central Business District. In its original state the subject land comprised undulating light to medium coastal forest merging with coastal ti-tree and mangrove swamp. By employing a combination of visual inspection and perusal of historical records, Mr Simmonds formed the view that the original vegetation would have comprised mainly heavy ti-tree coastal timber. A watercourse flows through the subject land and joins with another watercourse which runs along part of the northern boundary of the land, then through it. Attempts have been made by the construction of levee banks to limit saltwater tidal intrusion. Areas of the subject land have been either filled or levelled to assist in cultivation and drainage.
It is the matter of inundation of the subject land which is of greatest concern to the appellants in this matter. Inundation which results in water standing for long periods will kill cane plants and limit sugar production. The inundation problem comes from two sources. There is an increase in the area of cultivation land upstream and in the levelling of these upstream lands with the result that run-off is increased and the rate of run-off is also accelerated. As a result, a rainfall event upstream of the subject land, which might not have unduly impacted upon the Robino property in past years, will now cause inundation. That inundation is exacerbated by reduced drainage downstream of the subject land through Lagoon Creek. An increase in vegetation in that waterway in the form of overhanging trees and water hyacinth, as well as some hymenachne introduced from upstream sources inhibits stream flow. The appellant landholders are not permitted to clear this stream vegetation without a permit, any such permit being conditional upon certain environmental aspects being satisfied. One particular aspect of concern in the granting of a permit is the presence of acid sulphate soils, particularly in the mangrove areas. Any permit would be conditional on either the disposal or the covering of such soil if disturbed, for example, by the removal of trees or the clearing of drains. According to Mr Robino, the conditions cannot in practical terms be satisfied, thus there is effectively a prohibition on the improvement of downstream drainage. Over time, without any work being carried out on downstream drainage, the inundation problems on the subject land are compounded.
Mr Robino provided photographs showing inundation of part of the subject land in December 2000. He said that water would remain standing in the flooded areas for about two weeks and that a minor flood event would occur even if there were only 70 millimetres of rain upstream over a period of hours. I note that the rainfall in the year 2000 was substantially higher than the previous five years according to a schedule reproduced at paragraph 6.
Mr Robino said that government funding had been allocated by way of a program called the "Sugar Industry Infrastructure Package" (SIIP) to address the drainage problem in the area of the subject land, but that no practical works had actually been carried out during the seven years since the provision of funding. He is not confident that the drainage problems will ever be addressed from that source - a view that is largely reflected in a letter provided to Mr Robino from the Loder Creek Drainage Board dated 16 February 2001. Another letter dated 8 December 2000 from the Department of Natural Resources to the SIIP Steering Committee indicates that in addition to the improvement of downstream drainage, if that is ever to be carried out, there might be a requirement to "create a buffer between the cane production area and the mangroves". Mr Robino is properly concerned that, given the location of his farm, he may, as a result of the treatment of the overall drainage problem, be required to sacrifice part of his cane land. Mr Simmonds said that in the event that Mr Robino's worst fears in this regard come to fruition, the Chief Executive's valuation would need to be adjusted to take into account the presence of the buffer. I agree that it would be appropriate for that matter to be taken into account when it becomes a reality and not to make any allowance in the present valuation because of the prospect of that occurring.
Mr Robino tendered a schedule showing the following:
| Year | Rainfall | Total Hectares | Total Tonnes | My Yield | Average Yield |
| 2000 | 3203 | 38.29 | 1392.26 | 36.3 | 43 |
| 1999 | 2495 | 35.24 | 2532.28 | 71.9 | 64.1 |
| 1998 | 2733 | 35.25 | 2794.82 | 79.1 | 84.1 |
| 1997 | 2506 | 42.51 | 4862.59 | 114.4 | 101.2 |
| 1996 | 1049 | 38.01 | 4246.09 | 111.7 | 105 |
| 1995 | 1465 | 39.96 | 3964.37 | 99.2 | 104.6 |
If I put aside for the moment the 1998 to 2000 production figures, it is apparent that the subject farm's production has increased from 1995 up to and including 1997, whilst average yield throughout the area has fluctuated, though has decreased overall. It is not, however, an easy matter to compare one year to another. For example, in 1997 the Robino farm had some stand-over cane which allowed it to cope with the high rainfall of that year and to produce an above average yield. Whilst it is not appropriate to consider the precise figures included in the above schedule for the periods 1998 to 2000, given that the relevant date for valuation is 1 October 1997, it is appropriate, in my view, to refer to that evidence to the extent that it confirms what would be foreseeable at the relevant date. In particular, it would have been observable on 1 October 1997 that for a high rainfall year there would be an expectation of inundation of the subject land with a consequent impact upon production. (See, for example, CMB No. 1 Pty Ltd v. Cairns City Council (1999) 1 QdR 1 as to the relevance of after date evidence).
Mr Simmonds said that the average production for the Four Mile area in which the subject land is located (and in respect of which the "average yield' figures contained in the above schedule are supplied) is about 85 tonnes per ha. He suggested that the subject farm would have produced above average up to the year 1997 largely because of the effort that Mr Robino put in and not simply because of the natural capacity of the land. Mr Simmonds acknowledges the problem of inundation on the subject land, however, considers that he has taken that aspect into account in his valuation. In that valuation report he valued 55.2 ha of the subject land as being arable and applied a value of $3,875 per ha to that part. For the balance 11.27 ha, which comprised drains, mangrove and acid sulphate-affected areas, he applied what I understand to be a nominal figure of $100 per ha.
In carrying out his valuation Mr Simmonds referred to seven sales transactions. His approach was to analyse each of these sales to an unimproved figure, having regard to various improvements including any standing crop and thus to calculate an unimproved value. The country on the sale properties was then classified according to aspects of quality. He had regard to what he described as a "service area" which includes headlands and paddock areas around the house and sheds and allocated that area on a pro-rata basis over the other country classifications. His thesis is that the service area services the arable area of the farm and therefore ought to be so allocated. There was no challenge by Mr Robino to this approach which seems to be valid.
Mr Robino's main concern with the sales referred to by Mr Simmonds is that they are not in his local area. He made the point also that each of these sales was superior to the cane farm under appeal, however, that is not a matter that was really in issue as Mr Simmonds placed a value per ha on the subject land at a rate lower than any of those revealed by his sales. Mr Simmonds said that the sales referred to in his valuation were relied upon for other statutory valuations in Mr Robino's area and whereas the relativity one to the other of those properties has been maintained, the subject land has received further allowances. It had been adjusted downwards in relativity in comparison with those properties. He said that some allowance for drainage problems on the subject land had been made in past revaluations, but that he had increased this allowance in the subject valuation.
The classes of land included in Mr Simmonds' valuation to which I have referred above may be further broken up as follows:
30 ha poor arable;
25.2 ha very poor arable ie subject to inundation;11.27 ha drains, mangroves and acid sulphate-affected balance land (non arable).
Mr Simmonds applied a figure of $4,750 per ha to the "poor arable" class of land and $4,250 per ha to the "very poor arable" class. His sales numbered 3, 4 and 5 provided him with values of the poor and very poor arable classes of land as follows:
· Sale 3 - all "poor arable" analysed unimproved value $5,044 per ha
- applied unimproved value $4,760 per ha.
· Sale 4 - all "poor arable" analysed unimproved value $5,186 per ha
- applied unimproved value $4,793 per ha.
· Sale 5 - 11 ha "poor arable"
- 11.27 ha "very poor arable"
- analysed unimproved value $4,608 per ha
-applied unimproved value $4,284 per ha according to Mr Simmonds' valuation but calculated by me to $4,288 per ha.
In applying $4,750 per ha to the land on the subject property, which he classified as "poor arable", Mr Simmonds has adopted the lower of the two figures available to him from Sales 3 and 4 for that class of land. It is clear that with respect to Sale 5 the poor arable component of that property would have attracted a higher value per ha than the $4,750 per ha which he has applied to the property the subject of this appeal. Mr Simmonds has therefore applied the sales to the classes of land that he identified on the subject property, in a conservative manner.
Mr Robino offered his opinion on the classification and values as follows:
Badly affected dark humic clay 25 ha @ $2,100 = $52,500 Moderately affected dark humic clay 11 ha @ $2,700 = $29,700 Reasonable quality grey silty clay 16.5 ha @ $4,134 = $68,211 TOTAL = $150,411
Mr Robino provided no sales evidence in support of his suggested classified values, therefore if Mr Simmonds' classification of land types on the subject property were to be accepted then his classified values would correspondingly be supported.
As to the classification of land on the subject property, Mr Robino tendered a letter provided by the Bureau of Sugar Experiment Stations (BSES) dated 11 January 2001 which said, in effect, that the inundated area on the subject property had an area of about 12 ha. The sketch provided as an attachment to that letter was not, however, consistent with a sketch provided in evidence by Mr Robino and which indicated that the BSES estimate dealt with one side only of the creek running through the subject farm, whereas land on the other side of the creek was also subject to inundation. The boundary of the area the subject of inundation on Mr Robino's sketch also differed from that provided by Mr Simmonds, but in the end their respective estimates of area are probably similar (see paragraph 17). Mr Simmonds said that his sketch was based on historical records and on the boundary of the inundated area being based on an old ti-tree watercourse. Mr Robino's sketch plan, on the other hand, was based on the actual farm, as it existed just before this matter was heard. He acknowledged that the levels of the farm property had been modified over time. Mr Simmonds suggested that the difference in area between his classification and that provided by Mr Robino probably arose from the different sources employed. In addition he said that whereas he had included the "service areas" in his classified areas, it was apparent that Mr Robino had not.
On Mr Robino's figures there would be a total of 52.5 ha arable, whilst Mr Simmonds' total of 55.2 ha would apply to the arable content. There is not a large difference between these figures, that difference probably arising in part from the difference in the treatment of the "service areas". Whereas Mr Robino has three classes of land treated as arable, Mr Simmonds has two classes only. If I assume that that classified as "badly affected dark humic clay" in Mr Robino's classification (25 ha) equates with Mr Simmonds' "very poor arable" class (25.2 ha), then the difference between the two lies in the better quality, though still "poor arable". I have no means of taking this matter further excepting to draw attention to the fact that Mr Robino's classifications are not based on an unimproved state, but on his appreciation of the land in early 2001; and on the fact that he has not included "service areas" in his method of classification.
I am therefore led to the conclusion that Mr Robino has not shown Mr Simmonds and therefore the Chief Executive, to have carried out the statutory valuation on a wrong factual basis nor in a manner contrary to principle.
In the circumstances I find the following quotation from Qualischefski v. The Valuer-General (1979) 6 QLCR 167 at 172 most appropriate:
"However upon appeal a statutory onus of proof is cast upon the appellant and he has to accept, within the confines of the grounds set out in his Notice of Appeal to the Land Court, the burden of proving the Valuer-General incorrect. Neither this Court nor the Land Court in the subject jurisdiction may assume the role of an investigating tribunal requiring the Valuer-General to substantiate his case. This is in contradistinction to jurisdiction conferred under the Land Act."
Accordingly, the appeal is dismissed and the valuation of the Chief Executive is affirmed.
RP SCOTT
MEMBER OF THE LAND COURT
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