Scarr v Chief Executive, Department of Natural Resources
[1998] QLC 20
•20 February 1998
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BRISBANE
20 February 1998
Re: Appeal against Annual Valuation -
Valuation of Land Act 1944 -
Shire of Richmond.
(AV96-792).
Estate AV Scarr
v.
Chief Executive, Department of Natural Resources
(Hearing at Richmond)
D E C I S I O N
This is an appeal by the Estate of AV Scarr against the unimproved value determined by the respondent Chief Executive of a grazing property known as "Winchester Downs", which is situated about 90 kilometres south-west of Richmond. "Winchester Downs", or Grazing Homestead Perpetual Lease No 23/16618, described as Lot 5 on Plan AN 20, Parish of Fraser, has an area of about 11,325 hectares. As at 1 January 1996 under the provisions of the Valuation of Land Act 1944 (the Act), the respondent Chief Executive determined the unimproved value of that land at $160,000, or $14.13 per hectare. Mr Robin Darcy Scarr, the Executor of the Estate of AV Scarr, objected against that valuation and following notice from the respondent that the objection had been disallowed, he appealed to the Land Court against the respondent's decision upon that objection.
Section 45 of the Act provides that an owner who is dissatisfied with the decision of the chief executive upon the owner's objection, may appeal to the Land Court within 28 days after the issue of the notice of decision upon objection. In this case the decision upon objection issued on 23 October 1996. The 28 day period expired on 20 November 1996. However, the appellant's notice of appeal was dated 12 December 1996 and not received in the Land Court registry until 16 December 1996, some 26 days out of time.
In addition to being out of time, the notice of appeal did not state the owner's opinion of the unimproved value as required by the Act.
In accordance with Section 58 of the Act, the registrar of the Land Court issued to the appellant on 23 January 1997, a requisition specifying that the notice of appeal appeared to be defective in not stating the owner's opinion of the unimproved value and advising that the defect could be remedied by answering the requisition within 21 days of the date of that requisition.
However, the registrar did not advise the appellant that the appeal had been received out of time. Section 57 of the Act provides that in such circumstances the registrar shall notify the owner that the appeal was not filed in the Land Court registry within the time prescribed and the appeal does not lie, unless the owner proves to the satisfaction of the Court that the failure to institute the appeal within the prescribed time was caused by undue delay in the transmission of mail in the ordinary course of post. The owner is also required to notify the registrar within 21 days of the owner's intention to endeavour to so satisfy the Court.
The appellant's reply to the registrar's requisition was dated 10 February 1997 and received in the office of the Land Court on 14 February 1997, being one day out of time. However, the reply to the requisition was accompanied by a letter which stated that owing to wet weather the appellant did not receive mail on two consecutive mail days. The property has a mail service once a week only.
When the matter of jurisdiction came before the Court, Mr Vize, counsel for the respondent, indicated that the respondent did not take issue with the late reply to the registrar's requisition. However, he pursued the point that the original appeal had been received some 26 days out of time.
The Act makes no provision for such a circumstance as has occurred in this case, where the registrar has not notified the owner that the appeal was received out of time. However, the Act does make provision for the situation where the registrar has not issued a requisition where there is an apparent defect in the notice of appeal. In such circumstances, the Court shall require the appellant to remedy the defect within 7 days and if the appellant does not do so, the Court shall strike out the appeal.
The matter of the consequences of the failure of the registrar to notify the owner was not argued in this case. Mr Vize submitted that the appeal was 26 days out of time and, unless the appellant could prove to the satisfaction of the Court that the failure to institute the appeal within time was caused by undue delay in the transmission of mail in the ordinary course of post, the appeal does not lie. However, the question arises as to the effect of the failure by the registrar to notify the appellant that the appeal was out of time.
In my view, if an appeal is out of time, it is out of time, whether or not the registrar notifies the appellant as prescribed by the Act. The purpose of the registrar issuing such a notification is to advise the appellant of the fact and to give the appellant the opportunity to argue that there was delay in the mail. The required response that the appellant intends to endeavour to so satisfy the Court, gives the respondent and the Court notice that the appellant intends to argue the matter when the case is heard. In this case, however, the respondent is not prejudiced by the lack of such a reply. The respondent's officers were aware that the appeal was out of time and that the appellant would, in all likelihood, argue the matter of jurisdiction. Mr Vize was well briefed and well prepared to argue the point.
In the circumstances of this case, I have come to the conclusion that I should deal with the matter of jurisdiction on the material before me. The only alternative would be to refer the matter back to the registrar and order that a proper notification be sent to the appellant that the appeal was out of time, advising that if the appellant wished to argue undue delay in the ordinary course of post, the appellant should notify the registrar within 21 days. That, in my opinion, would be absurd. The parties were before the Court at the time and the Land Court may not again be in Richmond for another two years.
I turn now to the matter of jurisdiction. Mr Scarr raised a perfectly reasonable argument. At the time that the notice of decision on objection issued to him as the executor of the Estate of AV Scarr, he was undergoing medical treatment in Brisbane. While the mail was delivered to the property without undue delay, he was not there to receive it. He did not get the notice until he arrived home well after the closing date. Mr Scarr went on to say that his medical treatment was urgent and could not be delayed. He had not made any arrangements for the onforwarding of mail during the period of his absence from "Winchester Downs".
While Mr Vize agreed that Mr Scarr's reason for not appealing within the time was perfectly reasonable, he submitted that the Act does not provide for such circumstances to be taken into account. Where an appeal has been received out of time, the Court has no jurisdiction to hear the appeal unless the appellant can prove that the failure to institute the appeal within the prescribed time was caused by undue delay in the transmission of mail in the ordinary course of post.
I agree with Mr Vize's submissions. The authorities clearly indicate that the requirements relating to an appeal under the Valuation of Land Act are mandatory and all of them must be complied with for an appeal to be valid (Fischer v. The Valuer-General (1990) 13 Q.L.C.R. 129, and the cases cited therein). One of those requirements is that an appeal must be instituted within 28 days after the date of issue of the respondent's notice of decision upon objection (s.45(2)). In the event that an appeal is received out of time, the Court does not have jurisdiction unless the appellant proves to the satisfaction of the Court that the failure to institute the appeal was caused by undue delay in the transmission of mail in the ordinary course of post (s.57).
It does not matter what other reason the appellant has, or how reasonable that reason is, for the lateness of the appeal. The Legislature has provided for only one means of satisfying the requirement if the appeal is out of time. If the appellant is not able to satisfy that requirement, this Court has no jurisdiction to hear the merits of the appeal.
In this case, Mr Scarr did not suggest that there had been undue delay in the transmission of mail. He stated quite frankly that he could not rely upon that argument. He relied upon the fact that he was not home to receive the mail because he was undergoing urgent medical treatment.
Unfortunately, in such circumstances, I have no alternative but to find the appellant has not satisfied the Court that there has been undue delay in the transmission of mail in the ordinary course of post. Therefore, this Court has no jurisdiction to hear the appeal. While this no doubt seems harsh to the appellant, it is the result of a mandatory requirement provided for in the Valuation of Land Act.
In amendments to the Act in 1997, the time for lodging appeals was extended to 42 days. However, that was not given retrospective effect. In any case, it would not have assisted the appellant, as the appeal was filed outside that 42 day period. Although the period for lodging appeals has been extended, the requirements regarding late lodgment remain unaltered. Therefore, until such time as those requirements are amended to recognise that in some cases there may be other valid reasons for the late lodgment of appeals, then landowners in the position of the present appellant will be unable to have the merits of their appeals heard and determined by this Court.
The Merits of the Appeal
After dealing with the submissions as to jurisdiction, I reserved my decision on that point and heard argument in relation to the merits of the case so that the matter could be dealt with should I find that the Court did have jurisdiction. Although I have found that I have no jurisdiction to hear and determine the merits of the case, it may be of some assistance if I make some comments on the evidence.
Mr Scarr's case was based on the fact that an adjoining property, "Carnwath", of some 12,932 hectares, sold on 19 May 1994, for $859,000, or $66.42 per hectare. He was of the opinion that "Winchester Downs" would sell for much the same price per hectare. Based on his tax accountant's figures, Mr Scarr came to the conclusion that the value of improvements on "Winchester Downs" amounted to $730,000, or $64.46 per hectare. This left very little for the unimproved value of the land and certainly not $160,000, or $14.13 per hectare, applied by the respondent.
Mr LR Croton, a registered valuer employed by the Department of Natural Resources, gave valuation evidence on behalf of the respondent. He described "Winchester Downs" as comprising undulating open black soil downs, mainly loose with intersecting firm patches and scattered coolibah and whitewood trees on Thompson Creek, with about 20% subject to flooding. He assessed the carrying capacity at 1 beast to 12 hectares.
In support of his valuation of $160,000, Mr Croton relied upon the analyses of the sales of two improved properties.
"Lerida", of some 12,375.3 hectares, is situated approximately 189 kilometres north of Longreach, via Muttaburra. It comprises open mitchell grass downs country with a carrying capacity of 1 beast to 12 hectares. "Lerida" sold in April 1995, for $850,000, or $68.68 per hectare and was analysed to show an unimproved value of $18.04 per hectare. As at 1 January 1996, the respondent applied an unimproved value equivalent to $16.16 per hectare.
Mr Croton considered that "Lerida" was superior to the subject land, largely because of its situation in the more favoured Muttaburra area.
Mr Croton's second sale, "Cairo" of 10,652.04 hectares, is situated about 40 kilometres north-east of McKinlay. "Cairo" sold in January 1995 for $921,235 and was analysed to show an unimproved value of $13.07 per hectare. As at 1 January 1996, the respondent applied an unimproved value of $11.73 per hectare to that property.
"Cairo" is a divided property and comprises largely open downs country, part of which is subject to flooding from the Gilliat channels. It has a carrying capacity of 1 beast to 13 hectares.
Mr Croton considered "Winchester Downs" to be superior to "Cairo" as it was in a single lot and not a divided property, but agreed that "Cairo" was more favourably situated for the live cattle export trade.
Mr Scarr questioned why those two sales, both of which are situated quite some distance from the subject land, should be used as a basis for the valuation instead of the sale of the adjoining property "Carnwath". He had obtained from the Department of Natural Resources at Hughenden a document showing the details of the "Cairo" sale. That document showed an apportionment of the sale price as the value of leasehold land $437,235, leasehold improvements $454,000 and plant and machinery $30,000. Those figures varied considerably from the figures in Mr Croton's analysis of the "Cairo" sale. However, they represent the parties' apportionment of the sale price. Mr Croton's figures were the result of an inspection and assessment of the value of each of the improvements, which is the proper method to be adopted for the analysis of a sale to unimproved value.
Mr Croton explained that he did not rely on the "Carnwath" sale because it occurred in 1994. He preferred the sales of "Lerida" and "Cairo" as they were 1995 sales, closer to the date of valuation.
I have found that this Court has no jurisdiction to deal with the merits of this case, but after considering the evidence that was presented, if I had jurisdiction I would have concluded that the appeal must fail. The Valuation of Land Act places the onus of proof upon the appellant and, on that evidence, the appellant would not have discharged that onus of proof.
The method used by Mr Scarr to arrive at the unimproved value of the subject land is not the preferred method of valuation in such circumstances. Authorities clearly indicate that in the absence of unimproved sales, the unimproved value of land must be determined by the analyses of improved sales. (See for example the judgment of the Land Appeal Court in McGuigan v. The Valuer-General (1984) 10 Q.L.C.R. 32). That is the method which has been adopted by Mr Croton.
Mr Scarr attempted to arrive at an unimproved value by first estimating the improved value of the subject land and then deducting the value of the improvements. In Dunlop Rubber v. The Valuer-General (1958) 3 L.G.R.A. 125, it was held that while that method of valuation was provided for in the proviso to the then s.12(1) of the Act, it was necessary to have proper evidence of the improved value of the property and the value of improvements.
In my opinion, it is not possible to adopt the price per hectare paid for an adjoining property and translate that exactly as the value per hectare which could be obtained for the subject land almost two years after that date. I would require much more cogent evidence to be satisfied that such a figure was the improved value of "Winchester Downs" as at 1 January 1996.
As for the value of improvements, Mr Scarr admitted that the figures were accountant's figures for taxation purposes. He had not endeavoured to ascertain the value of improvements by the accepted valuation method of replacement cost less accrued depreciation, or considered the added value of those improvements (see O'Brien Nominees Pty Ltd v. The Valuer-General (1979) 6 Q.L.C.R. 280).
In my view, that is the only means of arriving at the proper value of improvements for the purpose of analysing sales to unimproved value. The method adopted by Mr Scarr was not a proper method of valuation.
For those reasons, even if I did have jurisdiction to deal with the merits of this case, I would have found that the appeal must be dismissed. However, as discussed previously, I have found that I have no jurisdiction to hear and determine the matter.
Accordingly, the appeal is struck out for want of jurisdiction.
(JJ Trickett)
President of the Land Court
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