Torkington v Chief Executive, Department of Natural Resources, Mines and Water
[2007] QLC 68
•26 September 2007
LAND COURT OF QUEENSLAND
CITATION: Torkington v Chief Executive, Department of Natural Resources, Mines and Water [2007] QLC 0068 PARTIES: Trevor and Venetta Torkington
(appellants)v. Chief Executive, Department of Natural Resources, Mines and Water
(respondent)FILE NOS: RV2006/0093
AV2006/0094DIVISION: Land Court of Queensland PROCEEDING: Appeals against valuations. DELIVERED ON: 26 September 2007 DELIVERED AT: Brisbane HEARD AT: Charters Towers MEMBER: Mr RP Scott ORDER: The appeals are dismissed. CATCHWORDS: Valuation – comparison with sales – refined detail of points of comparison in relevant but covered in broad comparison. APPEARANCES: Mr T Torkington for the appellants.
Mr W Isdale of Crown Law for the respondent.
Pursuant to the provisions of the Valuation of Land Act 1944 and the Land Act 1994 the Chief Executive placed valuations on land owned by the appellants as at a relevant date of 1 October 2004. The valuation amount in each matter was $310,000 and the appellants, having unsuccessfully objected against that figure, lodged appeals to this Court contending to a valuation of $108,000.
Whilst the two valuations have each been prepared for two different statutory purposes the applications of the relevant statutory provisions means that the valuations for each appeal cannot be differentiated in principle. Thus a single figure applies to each based on the same valuation evidence and, accordingly, the parties consented to the appeals being heard together.
The subject property is known as "Fern Spring Holding" and comprises a pastoral lease granted under the provisions of the Land Act 1994.
The subject land has an area of 7,847.7 hectares is located approximately 56 kilometres west of Charters Towers which provides services and facilities such as schooling, hospitals, supermarkets and sale yards. Access to the subject land is via 32 kilometres of the sealed Flinders Highway then 24 kilometres of formed earth and gravel road. Digital Radio Concentrator Site (D.C.R.S) telephone is connected to the property, mail is delivered twice weekly; whilst rural power is not connected.
Michael McDougall a registered valuer in the employ of the Chief Executive's department provided valuation evidence in support of the Chief Executive's valuation figures. He described the property as being an irregular shaped parcel generally falling from a red earth tableland in the south east to Hann and Dillon Creeks. The property contains significant areas of rough unavailable bendee and lancewood ridges and gorges. Mr McDougall classified the land as having 28% or 2,170 hectares of fair to poor developed forest grazing; 47% or 3,710 hectares of fair to poor woodland grazing and 25% or 1,967.7 hectares of poor to unavailable forest grazing comprising steep and broken conglomerate walls and gorges thickly timbered with lancewood, bendee, Normanton box and wattle. The property has no permanent natural water but is watered by artificial means including three bores and ten dams.
Mr McDougall classified the property as having a carrying capacity of 1 beast to 23 hectares or 341 Adult Equivalents.
Trevor Torkington one of the co-owners gave evidence on behalf of the appellants and he accepted the description of the subject property which I have outline above. Mr Torkington said that the appellants' estimate of value of $108,000 had been a pre-existing unimproved value which as he recalls was eight to ten years old. He did agree however that the market had "really started moving" in 2004 and had improved from 1994 and that on that basis the $108,000 figure may not be accurate as a reflection of unimproved value. However he said that income from the property had not improved over previous years and that the owners had to spend considerable funds on improvements on the land.
Mr McDougall said that departmental valuers had inspected in excess of twenty sales for the purpose of the 2004 revaluation and that, having regard to that investigation work, he had concluded that improved values had virtually doubled between 2001 and 2004. The cost of the effecting improvements had not increased at the same rate, therefore it is the unimproved land component that has attracted the bulk of the increase. Improvements are, of course, generally available whereas land is strictly limited in its supply.
Mr Torkington advanced four main grounds of appeal. The first related to the fact that the road that needs to be traversed by stock transporters carrying cattle to market from "Fern Spring" has, in recent years at least, frequently been closed at the Shire Council's initiative in order to protect the road during periods of wet. Those periods when they occur tend to coincide with the preferable marketing period for cattle turned off from the property. He said that about 20 kilometres of road was closed regularly for about three months of the year, though accepted that this did not occur during the dry years.
Mr McDougall said that he had only recently become aware of the road closure issue; that he was not aware if the road was closed regularly during and leading up to the 2004 date of valuation, but that he had travelled the road during the period of February to April approximately and had not encountered road closure signs. Having said that he said that his sales number two and three to which I refer below have access difficulties especially during the wet. He had considered the question of access in his valuation and he is of the view that the market was extremely strong in 2004 such that disabilities of that type, whilst they would be taken into account, would not lead to substantial price discounting. That is, purchasers would need to compete aggressively in a sellers market.
This issue of the road being closed from time to time came up in a number of matters heard at the same hearing at Charters Towers as "Dillon Creek", but with some inconsistency between the various recitations of the facts. Following a request by me Mr McDougall made further enquiries about the road closure issue and that evidence was produced in the hearing of Hammer v Chief Executive Department of Natural Resources, Mines and Water[1]. He spoke to Mr R Jayo and Mr J Gott the Chief Executive of the Dalrymple Shire. He was told that signs warning of the condition of the road were often erected following heavy rains. For example if Hann Creek has cut the road or the road is otherwise damaged, the sign will warn that there is no through road. Hann Creek need not be crossed to gain access to the subject property. Mr McDougall was told there was no specific local restriction on the road. Public access was therefore permitted. Just like any earth and gravel road, however, climatic conditions would dictate whether the road was passable. Pursuant to s.7 of the Land Court Act 2000 I take that evidence into account in this matter.
[1] [2007] QLC 70.
In the final analysis it appears to me that practical access to the subject is inhibited at times which can be inconvenient to the marketing of livestock and can, therefore, result in economic loss. Having said that I notice that Mr McDougall has made allowance in his valuation for the fact that the property has earth and gravel access. That is less desirable than all weather access and impacts on the property's value. No further refinement to Mr McDougall's valuation is warranted for the specifics raised by Mr Torkington. That is the nature of land valuation in which adjustments must necessarily be broad and be based on the application of subjective but professional judgment to the available evidence.
Mr Torkington said that the unavailability of mains electricity was a major issue for the property which has to depend on solar power; or power produced by a generator if air-conditioning, heating and I assume welding and such like need to be provided for.
Mr McDougall was well aware of the restricted access to electricity and the cost of obtaining access to mains power and described how he made a substantial allowance in catering for that disability in his valuation. He viewed the property as unimproved therefore considered the provision of electricity to a house and shed in locations other than where the current improvements have been constructed.
Mr Torkington noted that Mr McDougall had valued the property on the basis of 2,170 hectares of developable forest grazing with a carrying capacity of 1:12 hectares at $60 per hectare and 5,677.7 hectares at fair to poor forest grazing with a carrying capacity of 1:35 at $32 per hectare. He expressed the view that the improved country should be valued at the same rate as the unimproved land as the increased carrying capacity has resulted from the owner's investment and hard work.
Mr McDougall explained that in valuing the improved class of country on the subject property he valued it based on potential as if it were unimproved. He concluded that as the country had been developed it would probably be permitted to be cleared again when regrowth took hold and that on that basis it had a higher value than the poorer forest grazing land which would not be readily turned to development. Nor would permission be given pursuant to the provisions of the Vegetation Management Act 1999 for timber treatment on that poorer country to occur.
Mr Torkington said that the subject property was mineral deficient and that the owners were required to provide phosphate and trace element licks which they often mixed with a little molasses as a sweetener. He accepted that it was normal to the area but suggested that the subject property was worse placed in that regard than any of the three sales referred to by Mr McDougall. Mr Torkington also referred to the presence of poison peach on the subject land and gave evidence that stock were often lost during that period of the year when available grazing is scant and stock are drawn to anything that is green. Poison peach as the name suggests will kill cattle once it is ingested. Mr McDougall was not surprised that poison peach might be found associated with bendee in particular on the subject property, however he did not see evidence of the plant himself though is well aware of it and of its effect on livestock. He said that the lower carrying capacity on the poorer country on the subject property was arrived at on the basis of the general nature of that country and that his estimated carrying capacity catered for disabilities of the type mentioned by Mr Torkington. I think that that is clearly the case having regard to the three sales relied upon by Mr McDougall. His applied value of $39.50 per hectare appears to me to adequately reflect the differences between the subject and the sales.
In a matter such as this the Chief Executive's valuation enjoys the protection afforded by the presumption expressed in s.33 of the Act: -
"Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the chief executive shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered."
The nature of this presumption was considered by the High Court in Brisbane City Council v Valuer-General[2] where in reference to s.33 when it was numbered as s.13(7), Gibbs J, as he then was, said:
"In my opinion, once it is shown that in making the valuation the Valuer General acted upon a wrong principle, or made a serious error of fact, the presumption created by s.13(7) is rebutted."
[2] (1978) 5 QLCR 283 at 303.
I do not think that Mr McDougall has made a serious error of fact in his valuation nor that he has departed from principle in the way that he has treated the various issues raised by the appellants. Accordingly, the appeals are dismissed and the valuations of the Chief Executive are affirmed.
RP SCOTT
MEMBER OF THE LAND COURT
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