Sparrow v Chief Executive, Department of Natural Resources and Water
[2007] QLC 71
•5 October 2007
LAND COURT OF QUEENSLAND
CITATION: Sparrow & Anor v Chief Executive, Department of Natural Resources and Water [2007] QLC 0071 PARTIES: Glenn K and Keith N Sparrow
(appellants)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NO.: AV2005/1314 DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under Valuation of Land Act 1944 DELIVERED ON: 5 October 2007 DELIVERED AT: Brisbane HEARD AT: Barcaldine MEMBER Mr BR O'Connor, Judicial Registrar ORDER: The Appeal is allowed and the unimproved capital value is determined at Six Hundred and Thirty-Five Thousand Dollars ($635,000) CATCHWORDS: Practice and Procedure – role of expert witness – whether expert witness should act as advocate.
Valuation – unimproved value – classification of grazing land – assessment of brigalow scrub areas – preferred means of assessing such – use of satellite imagery and aerial photos.
APPEARANCES: Mr J Compton (Valuer - Herron Todd White) for Appellants
Mr W Isdale (Counsel – Crown Law) for respondent
Tresillian is a grazing homestead freeholding lease comprising an area of 6608.8 ha situated some 34 kms north of the town of Alpha, in the Shire of Jericho. It is one of eight blocks in an aggregation owned by the present appellants. The owners have appealed against the unimproved capital value imposed by the Chief Executive under the Valuation of Land Act 1944 (VLA) with a relevant date of October 1, 2004. Tresillian is the only block in the aggregation that is subject to appeal to full hearing. (Some other appeals have previously settled.)
After a court-directed conclave of the opposing valuers, the Chief Executive reduced the valuation on Tresillian from $800,000 to $670,000. The latter is the current figure contended for by the Chief Executive. The appellants contend for a figure of $370,000.
It is common ground between the parties that Tresillian's value has been increased by the Chief Executive at a substantially greater rate than other blocks in the Sparrow aggregation, particularly those on the western side of the creek bisecting the aggregation (Tresillian is on the far south of this western side). This change in relativity between the previous (2001) valuation and the 2004 valuation essentially results from a reclassification of the better land on Tresillian after further evidence became available to the Chief Executive.
Issues
The key issue in this matter centres on the disputed assessment on an area of some 1,250 ha (or 19%) of the subject property described by the Chief Executive as brigalow/blackbutt scrub. This area he values at $178 per ha. By contrast, the respondent claims this area has been now wrongly classified, that is, in this 2004 valuation report. The appellants claim this area should be described as superior forest country, attracting a rate of $100 per ha.
Preliminary matter – valuer's dual role as advocate
Before considering the substantial valuation dispute, it is necessary to deal with a preliminary procedural matter.
Counsel for the Respondent, Mr Isdale, questioned whether it was appropriate for Mr Compton, the appellants' valuer, to also perform the role of advocate in the case. Mr Isdale claims such dual role is contrary to Australian Property Institute (API) Practice Guide for its members. In correspondence with the appellants' legal representatives well before the hearing, Mr Isdale indicated he would be raising this conflict issue at the hearing.
Mr Compton states he was aware of this position the respondent would be taking but did not seek any ruling from the API as to his performing the dual role in the present case. Mr Compton states he is confident that he could perform the dual role in this case without any conflict of interest.
Mr Isdale acknowledges there is no legal prohibition to Mr Compton performing such dual role (for example, it is not prohibited under the Valuers Registration legislation or regulations); rather, the restriction is a rule of practice adopted by the API of which Mr Compton is a Fellow. Also, Mr Isdale states he is not seeking to prevent Mr Compton performing the dual role in the present circumstances; he merely stresses his objection is to the weight to be placed on Mr Compton's evidence.
In evidence, Mr Compton states he is well aware of the role of the expert witness before the Court as he is an experienced valuer and has given evidence in Land Court and other courts many times. Mr Compton also raises the practical question of cost of representation in the cases of this nature. The appellants' solicitors are Brisbane based and the cost of having them attend and represent at Barcaldine in a case of the current nature may not seem justified.
The dual role performed by Mr Compton is not an ideal situation and does technically conflict with API rules. However, I am prepared to accept Mr Compton's evidence without diminished weight in the current case. His role as advocate was relatively minor: leading his own evidence, cross-examining Mr Schefe and making brief final submissions. Also of relevance is Mr Compton's court experience in acting in both roles and the presence of an experienced counsel representing the Chief Executive to monitor any possible conflict. The Court, of course, would also be mindful of any possible conflict.
While I am not aware of any Queensland Land Court or Land Appeal Court decision on the particular issue now in question, it is perhaps convenient to note the Land Appeal Court remarks on the role of an expert witness. In Cominos v Chief Executive, Department of Lands 16 QLCR 311 at 338 the Land Appeal Court stated:
"… it is relevant to remind those concerned with the preparation of experts' reports of some of what Cresswell J. said in The Ikarian Reefer [1993] FSR 563 at p 565:
'The duties and responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation: Whitehouse v. Jordan [1981] 1 WLR 246 at 256, per Lord Wilberforce.
2. An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise: Polivitte Ltd v. Commercial Union Assurance Co. Plc [1987] 1 Lloyd's Rep 379 at 386, Garland J. and Re J. [1990] FCR. 193, Cazalet J. An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from this concluded opinion (Re J., supra).'
It is clear that in saying that, Cresswell J. had just as much in mind the expert's report as the evidence given orally at trial."
It should be observed that the reference to the High Court in this matter is the English High Court, equivalent to the Queensland Supreme Court. The restrictions on expert witnesses as advocates may be less in inferior Courts or Tribunals. In this regard, the Land Appeal Court decision in Bowden v Valuer-General [1980] 7 QLCR 138, traditionally quoted on costs, is also relevant. It stated at 147:
"Easy access to the Land Court to air grievances and have valuations reviewed is, as we have already stressed, most desirable in revenue cases and such access should be available without fear of costs being awarded to either party except in special cases."
Perhaps in future occasions where this situation of dual role arises and the issue is raised in advance by the opposing party, a ruling could be obtained from the API as to its stance in the circumstances of the case to be litigated. Factors of relevance would be the complexity of issues involved in the case, the location of the hearing and the experience of the valuer. Perhaps some warning of the need to be aware of role of the two functions would also be necessary.
To conclude this issue, I am prepared to accept Mr Compton's expert evidence in this case on face value, untarnished by his other role as advocate.
Respondent's evidence
Mr Schefe, valuer for the respondent, states that the prime reason for the increase in classification of the Class 1 country (1250 ha he describes as brigalow/blackbutt scrub) on the subject is that more precise detail became available as to the nature of that country than was previously at hand. He claims he can now confidently describe the country as brigalow scrub because of the following factors:
· The regional ecosystem maps produced by the Queensland Herbarium (a unit of the Environmental Protection Agency) show that the area in question to be of such quality. (see p.10 of Exhibit 8). Such maps are the products of various agency and individual imputs, including satellite imagery and historical departmental records.
· Mr Schafe has verified the regional ecosystem maps by "ground truthing", that is, by driving on the subject land and plotting Global Positioning System (GPS) readings to match ground observations with the relevant maps.
· Aerial photographs (taken in 1969) depict the land in its uncleared state and show an area thought to be brigalow scrub. Designated heavier colour shows heavier scrub content within the forest country. Mr Schefe states that this map certainly demonstrates the heavier brigalow content within the forest country in that central locality between points 8 to 25 and 11 to 30, rather than the brigalow being small isolated pockets.
· A vegetation line of uncleared country running from the northern to southern boundaries, having a width of some 50 metres and centred on a man-made dam described as "Fords Tank". It is claimed this line provides clear evidence that the country type is as noted by Mr Schefe. This line acts as a type of "country slice" running across most the subject land.
· A "Permit to Clear" submitted by the Sparrows, owners of the subject land at the time of application in 1989, refers to brigalow (and other species) on Tresillian and claims the carrying capacity would be doubled if the clearing sought in the Permit were approved.
· The historical relativities between the Sparrow blocks on the western side of the bisecting creek (and with "Mentmore" to the immediate south) is still maintained, even with the new classification of brigalow scrub on the subject.
Mr Schefe also relied on sales evidence as a basis for the level of values applied to the subject lot. His primary method of valuation was a direct comparison with the sales. As a secondary check method, he derived a classified country level from the sales and applied such classified levels to the subject. This provides the basic evidence for the level applied to the brigalow scrub in issue here.
Appellants' evidence
Evidence for the appellants was given by owners, Keith and Glenn Sparrow (father and son respectively). They have owned the property for many years, with Glenn stating he has spent his whole life on the property. Their evidence emphasised that the subject was essentially a forest grazing block and not a "finishing" one, that the established relationship between their blocks on the western side of the bisecting creek had been now substantially altered with the new level on Tresillian, that it was misleading to place emphasis on the brigalow suckers in the 1,250 ha area classified as brigalow scrub by the respondent as the brigalow regeneration was more intense than the original scrub. Further, the remnant brigalow scrub line radiating from Fords Tank was certainly not the good quality brigalow to warrant the level placed on it by Mr Schefe.
Mr Compton, the appellants' valuer, after a fairly detailed inspection of the property in company of the owners, confirmed the latters' evidence. After a valuation conclave with Mr Schefe the amount of brigalow scrub classified by the Chief Executive had been reduced from 1,380 ha to 1,250 ha. Mr Compton now argues not so much that the area is in error but as to the value applied to the area. He argues the 1,250 ha should only attract a $100/ha. In his oral evidence, Mr Compton attempted to put the whole dispute in a nutshell. He states that Mr Schefe has plotted about 28 points in what he calls his brigalow country. It indicates about 50% of the property as brigalow country but he (Mr Schefe) has not even adopted that attitude himself. He (Mr Schefe) has gone in and said there is only 1,250 ha of proper brigalow/blackbutt country compared to the area identified as having brigalow influence. Mr Compton does not disagree that there are patches of brigalow influence over a substantial area, but claims that the actual location and delineation on any map before the Court does not prove that 1,250 ha of proper scrub country that is worth $178/ha, which is one of the top rates applied in the Shire.
Mr Compton's valuation is based more on a relativity basis rather than on sales evidence. He stresses the poorer quality of the brigalow scrub, the traditional relationship with the other Sparrow aggregation blocks and the fact that a close examination of the soil types of the cleared 1,250 ha suggests a less than superior scrub country.
Consideration of issue
It is acknowledged that both valuers are experienced in rural matters and have carried out a detailed inspection of the subject property for the purposes of the present hearing. They approached the Court-ordered conclave in good faith and there made significant progress towards a settlement of the matter. It is noted that a substantial reduction has already been made by the Chief Executive after the conclave, with a reduction in the scrub area after inspection. Weight must also be given to the evidence of the long term owners who have spent a virtual life time in managing the subject property.
Mr Schefe's evidence has superior technical support particularly from the Herbarium mapping and the aerial photographs. He has relevant sales as his primary basis, traditionally the preferred evidence in this Court. The remnant shade line emanating from Fords Tank across the property also lends support to Mr Schefe's classification. Further, the evidence of the application for a Permit to Clear trees on the land supports the Chief Executive's case.
Mr Schafe has also explained why the historical relativities between the Sparrow blocks is not now warranted, chiefly due to new evidence and classifications being now available.
After consideration of all the evidence, my view is that the classified level placed by Mr Schefe in areas other than the 1,250 ha brigalow scrub area remains untarnished and should now be confirmed. However, on balance, some reduction in the rate per hectare of $178 applied to the 1,250 ha of scrub is warranted because of the following factors, considered collectively:
· The evidence of the owners who have worked the property for many years that the alleged scrub area is not of the quality claimed by the Chief Executive. They concede that there is some brigalow in the Fords Tank area but only in smaller patches. It is perhaps also of note that the owners have accepted the level and classifications ascribed by the Chief Executive to the other seven lots in the aggregation.
· The evidence that the brigalow suckers in the regenerated area show a deceptively high brigalow scrub content.
· Mr Schefe's evidence that the brigalow scrub is not of the superior kind found in other areas east of Alpha. In saying this, I acknowledge the reduction Mr Schefe has already made in both area and rate per hectare of the developed scrub (t.82).
· Mr Compton's evidence that the soil types plays an important role as an indicator of country type (t.58) and his claim that such do not support the Chief Executive's conclusion from the Herbarium mapping and aerial photographs.
Decision
The rate/hectare on the 1,250 ha of brigalow/blackbutt classified by the Chief Executive should be reduced from $178 to $150. This then can be rounded to a unimproved capital value on the subject land of $635,000.
Order
The Appeal is allowed and unimproved capital value of Tresillian is determined at an amount of Six Hundred and Thirty-Five Thousand Dollars ($635,000).
BR O'CONNOR
JUDICIAL REGISTRAR
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