Schiefelbein v Chief Executive, Department of Natural Resources

[1999] QLC 23

[1999] QLC 23

 

LAND COURT,

BRISBANE

9 April 1999

Re:     Appeal against Annual Valuation

Valuation of Land Act 1944
  Shire of Esk.
  (AV97-289)

Trevor J Schiefelbein

v.

Chief Executive, Department of Natural Resources

(Hearing at Toogoolawah)

D E C I S I O N

Mr Schiefelbein is the owner of land described as Lot 195 on Plan CH31682 and Lot 2 on RP 121622, Parish of North, County of Churchill, containing an area of 85.39 hectares.  As at 1 October 1996, the Chief Executive determined the unimproved value of that land at $108,000.  Mr Schiefelbein objected to that valuation and after being advised that his objection had been disallowed, he appealed to the Land Court, advising that his estimate of the unimproved value was $68,000. 

The grounds of appeal were:

·    The valuation had increased from $68,000 to $108,000, an increase of 60%, which is grossly excessive for land of this type;

·    The land is prone to erosion and landslips;

·    Underground tunnelling is a major problem;

·    Patches of poor soil do not grow much grass leaving it open to erosion;

·    About 20 hectares, affected by past volcanic activity, is rocky and covered with vines and bushes, making it useless as it cannot be cleared by mechanical means; and

·    Only about half the area is useable ground.

The property fronts the Glamorganvale-Lowood Road, approximately 2.5kms east of the town of Lowood.  The road is bitumen sealed and provides good access to the property.  Electricity and telephone are connected and the property has access to the Glamorganvale Rural Water Supply Scheme. 

At the hearing of the appeal, Mr Schiefelbein appeared and gave evidence, while the respondent was represented by Mr J O’Rourke and evidence on the respondent’s behalf was given by Mr EG Ridley, a registered valuer employed by the Department of Natural Resources.

Mr Ridley’s report described the land as follows:

“Land falls within an area known generally as the Marburg Scrub.  More specifically the land may be described as comprising approximately 22 hectares of steep Tertiary basalt slopes, 12 hectares of very steep Tertiary basalt rock covered hill top and the balance area, 51.39 hectares, being described as steep slopes of sandstone scrub country cleared of the original brigalow softwood vegetation.  ”

The report went on to say that the land is zoned “Rural A” under the Esk Shire Council Town Planning Scheme and is used for grazing and opportunity cropping.
           Mr Schiefelbein explained that the property is used for vegetable growing and for the breeding and fattening of cattle.  At the date of hearing, it was running approximately 60 head of cattle, including young heifers.  The property used to be a dairy farm but when the butter factories closed down, it was not possible to convert to milk because tankers could not get to the property.  He went on to say that approximately 25 acres of fairly flat to sloping country had been cultivated.  It had originally been very rocky country and in order to grow crops, all the rocks had to be removed.  Between three and four acres of the best and flattest of that land is irrigated from a dam.
           Mr Schiefelbein had little disagreement with Mr Ridley’s description of the property.  His main concern was that he thought the increase in valuation was grossly excessive for that type of country.
           He explained that the country has a propensity for erosion and tunnelling.  The tunnelling occurs after heavy rain on the hilly country and is caused by water running under the ground, particularly after a drought.  Mr Schiefelbein said that the holes caused by tunnelling are repaired by either filling with rocks when they occur on his access road, or by ripping with a dozer if the holes occur in the paddock.  Those holes vary in depth from 1 metre to over 2.5 metres and stock sometimes fall into them.
           In addition to the tunnelling, parts of the property with sandier soil are subject to landslips.  Other parts of the property have patches of poor soil that does not grow anything. Towards the north of the property is an area of about 20 hectares affected by past volcanic activity.  In places that area is so rocky that no soil can be seen, the area being covered by vines and bushes which, he claimed, cannot be cleared by mechanical means.
           Mr Ridley had estimated that there were 22 hectares of steep Tertiary basalt slopes which he regarded as very good grazing and superior to the sandstone scrub country, although he conceded that it is a stony area.  He had classified a further 12 hectares as very steep basalt rock covered hill, covered with what he thought was the original vegetation, but which he did not regard as entirely useless.  In his opinion, that country forms a cache for water, as he felt that rainfall would be held in that area, absorbed by the rock, underlying roots and vegetation and gradually released to run towards the dam. 

The balance 51.39 hectares of steep sandstone scrub country was regarded by Mr Ridley as country that needed some nurturing and judicious stocking to protect the erodable slopes.  He claimed that if the land had been treated differently in earlier days and more vegetation was left, the propensity for the land to erode would not be as great.  In his opinion, the whole area was subject to tunnel erosion, particularly when a period of light rainfall was followed by heavy rain.  He felt there would also be tunnel erosion on the sales he had used as a basis for the valuation, although he admitted that he had not seen any, as he had inspected the sales after a period of moderate rainfall.

Mr Schiefelbein admitted that he had not investigated sales of comparable properties in the area or had undertaken a comparison of the valuations of neighbouring properties.  He did not know any of the sales used as a basis of valuation by Mr Ridley.  His estimate of unimproved value of $68,000 was simply the previous valuation of the land. 
           Mr Ridley relied upon five sales of properties to support his valuation, two of which were resales of the same property.
           Sale No 1 is situated south of the Warrego Highway, near Marburg.  It fronts a bitumen road which provides good access, has electricity, telephone and school bus, but is not connected to a rural water supply scheme.  Mr Ridley described the land as easy to moderate slopes, originally timbered with brigalow and softwood scrub. 
           That property, of 48.3 hectares, with the same zoning as the subject land, sold in November 1995 for $195,000.  That sale was analysed to show an unimproved value of $85,994 and as at 1 October 1996, the respondent applied an unimproved value of $85,000, or $1,760 per hectare, to that property.
           In comparing the sale property with the subject property, Mr Ridley conceded that the class of country on the sale was superior, but the subject land was better situated and had better services.  Overall he considered the sale to be superior to the subject land on a rate per hectare basis.
           Sale No 2 joins Sale No 1 to the east and has access by a gravel surfaced road.  It has electricity and telephone, but does not have access to a rural water supply scheme.  Mr Ridley described the land as comprising easy to moderate slopes, originally timbered with brigalow and softwood scrub.  That property, of 40.47 hectares, with the same zoning as the subject land, sold in June 1995 for $250,000.  That sale was analysed to show an unimproved value of $86,004 and as at 1 October 1996, the respondent applied a valuation of $80,000, or $1,977 per hectare to that property.
           As with Sale No 1, Mr Ridley conceded that the sale property had superior country and that overall it was superior to the subject land on a rate per hectare basis.
           That property resold (Sale 3) in May 1997 for $225,000.  While this was a lower sale price than Sale No 2, the previous sale had been made on interest-free terms which Mr Ridley assessed to be worth $43,389.
           The resale analysed to show $96,410 and, as at 1 October 1997 (the following valuation), the respondent applied an unimproved value of $85,000, or $2,100 per hectare, to that property.
           Sales 4 and 5 are the sale and resale of a property situated near Bunburra, south of Boonah.  It fronts a bitumen sealed road which provides good access.  Electricity and telephone are connected, but it does not have access to a reticulated rural water supply scheme.  Mr Ridley described that land as comprising moderate to steep slopes, where soils are derived from sandstone, originally timbered with brigalow and softwood scrub, with a small area of forest in the south-east corner.  The property is watered by a bore and dams, but  natural water in the gullies is salt affected.
           That property, of 133.1 hectares, zoned “Rural A”, sold in May 1996 for $450,000.  It analysed to show an unimproved value of $209,890 and as at 1 October 1996 the respondent applied an unimproved value of $185,000, or $1,390 per hectare.
           That property resold (Sale 5) in May 1997 for $490,000, was analysed to show an unimproved value of $231,480.  When the property was revalued as at 1 October 1997, the respondent did not alter the unimproved value of $185,000.
           Mr Ridley was of the opinion that the sale had superior country and overall he considered it to be superior to the subject land.
           It is unfortunate that Mr Schiefelbein had no knowledge of those sales and therefore was not able to make a detailed assessment and comparison of those properties with his own property.  In the absence of any challenge to those sales or to the analysis of the sales, I am left with Mr Ridley’s opinions, which is the only valuation evidence before me.
           Mr Schiefelbein’s only argument was that the valuation increase was excessive having regard to the disabilities suffered by the subject land.  However, that increase resulted from Mr Ridley’s interpretation of the sales evidence and that has not been challenged.  In both his written and oral evidence, Mr Ridley has stated that he is well aware of the disabilities suffered by the subject land and he claims that he has made appropriate allowance for them when comparing them with the sales.  I must accept that evidence.
           It has been well established, that the best evidence of unimproved value is derived from sales of comparable lands (see Grahn  v. The Valuer-General (1992-93) 14 QLCR 327). The only evidence I have as to comparable sales is from Mr Ridley.
           Under the provisions of the Valuation of Land Act 1944, the valuation made by the Chief Executive is deemed to be correct until proved otherwise (s.33), and the burden of proof is upon the appellant (s.56(2)). In the circumstances of this case, I must find that Mr Schiefelbein has not discharged that burden.
           Accordingly, the appeal is dismissed and the valuation of the subject land as at 1 October 1996 is affirmed at $108,000.

President of the Land Court