Webb v Department of Natural Resources and Mines
[2005] QLC 16
•24 March 2005
LAND COURT OF QUEENSLAND
CITATION: Webb v Department of Natural Resources and Mines [2005] QLC 0016 PARTIES: (1) Colin G, Ethel A and Ian J Webb
(2) Hugh L Webb
(3) Colin G and Hugh L Webb
(applicants)v. Chief Executive, Department of Natural Resources and mines
(respondent)FILE NO.: (1) AV2003/0214 and AV2003/0215
(2) AV2003/0227
(3) AV2003/0216DIVISION: Land Court of Queensland PROCEEDING: Appeals against annual valuations under Valuation of Land Act 1944 DELIVERED ON: 24 March 2005 DELIVERED AT: Brisbane HEARD AT: Toogoolawah MEMBER Dr NG DIVETT ORDER: 1. The appeals in respect of AV2003/0215 and AV2003/0216 are adjourned until a decision is made by the Environmental Protection Authority.
2. Having considered the whole of the evidence in respect of the appeal in AV2003/0214, I find that the appellants have not proved their case. The appeal is dismissed, and the unimproved value as determined by the Chief Executive in the sum of Seventy-Four Thousand Dollars ($74,000) is affirmed.
3. In the matter of AV2003/0227, I find that the appellant has in part proved his case. The unimproved value as determined by the Chief Executive is set aside, and the unimproved value of Lease A (197.5 ha) is determined at Nine Thousand, Two Hundred and Fifty Dollars ($9,250).
CATCHWORDS: Valuation – Valuation of grazing lands – Timber on land – Impact of Vegetation Management conditions. APPEARANCES: Mr CG Webb for the appellants
Mr A Ross for the respondent
Background:
These matters deal with four adjoining parcels known as "Gibbarnee", located on Brisbane River Eastern Branch Road, about 41 km by road north of the Linville Post Office. Linville is located about 40 km north of Toogoolawah, in the Brisbane Valley. The subject lands are about 200 km north-west of Brisbane. Access is only fair to Brisbane River Eastern Branch road, which is gravel only, with about 32 low level river crossings, which can flood in heavy rains. Access to public services such as a school bus is now no longer available even to nearby Mount Stanley (about 15 km to the south). The only utility service available is telephone, about 1 km to the south. It is agreed that the subject lands are isolated in that locality. Access to medical treatment is a round journey to Kingaroy of in excess of 100 km.
The subject lands are zoned as "Rural and Special Purposes" under the Town Plan of the Esk Shire Council, effective at the date of valuation of 1 October 2002. The lands are used for the grazing of beef cattle. The areas of the four parcels are:
· Lot 101 on Plan CSH 721 (AV2003/0214) – 372.4 hectares
· Lot A on CG 3409 (AV2003/0227) – Special Lease 27/49318 – 197.5 hectares
· Lot A on CSH 1451, Reserve 329, Special Lease 27/43949 (AV2003/0216) – 67.38 hectares
· Lot A on CSH 1451, Reserve 329, Special Lease 43949 and Lot 97 on CSH 1316 and Lots 99 and 100 on CSH 721 (AV2003/0215) – 899.9 hectares
The Chief Executive issued valuations of the four subject lands at:
· Lot 101 - $74,000 (AV2003/0214)
· Lot A - $10,000 (AV2003/0227)
· Lot A - $19,000 (AV2003/0216)
· Lot A, Lot 97, Lots 99 and 100 - $177,500 (AV2003/0215)
Following objections the Chief Executive confirmed the valuations on 3 June 2003, and the appellants have now appealed claiming the unimproved values should more probably be:
· Lot 101 - $59,000 (AV2003/0214)
· Lot A - $7,400 (AV2003/0227)
· Lot A - $13,600 (AV2003/0216)
· Lot A, Lot 97, Lots 99 and 100 – $143,000 (AV2003/0215)
Mr Colin Gerald Webb, a retired elderly valuer appeared and gave evidence for the appellants. Mr A Ross, Counsel of Crown Law appeared for the respondent, calling evidence from Edwin George Ridley, the very experienced departmental registered valuer responsible for determining the valuations.
History of the appeals –
Mr Ridley explains that in the matters of AV2003/0215 and AV2003/0216, those two valuations are now the subject of a review in respect of the legal standing of those two matters. He advises further that AV2003/0215 comprises part freehold lands and part leasehold land; while AV2003/0216 is entirely leasehold land. However Mr Ridley explains that the two special leases on those properties had expired prior to the effective date of these valuations at 30 June 2003. Because of the differing ownership of AV2003/0215 and AV2003/0216, Mr Ridley is unable to include the lands in a single valuation (s.34). Accordingly, as responsibility for those former leased areas has now transferred to the Environmental Protection Authority, it has so far not been clarified whether those leases will be renewed. That uncertainty has continued since clarification of the expiration of the leased area of 67.4 hectares (Reserve 329) on 20 November 2003, with effect from 31 December 2000 (Exhibit 1). It is noted that advice of the cancellation of the special lease post-dated the original decision on objection, which issued on 3 June 2003.
Until that uncertainty about the future use of those leased areas has been clarified by the Environmental Protection Authority, it was agreed by both parties that the appeals in respect of AV2003/0215 and AV2003/0216 should be adjourned until a decision is made by that Authority. Mr Ridley notes that a new lease may be issued, or if not, then perhaps some lesser use may be approved such as a grazing permit to occupy. Depending upon that decision, if continued use is not allowed, then the respondent Department would need to reconsider the valuation of the freehold land in AV2003/0215. Both AV2003/0216 and AV2003/0215, are accordingly adjourned to a date to be fixed by the Court, thus preserving any rights for the appellant. If a fresh valuation is made to replace AV2003/0215, then the appellant will have a fresh right to object and appeal that new valuation.
Mr Webb advises that he saw the continued use of that leasehold area (Reserve 329) as important to the continued viability of the existing grazing operations. He advises that Reserve 329 lies between Lot 100 and Lot 97, and has an important frontage to the Brisbane River. That Reserve 329 has been leased by the appellant's family for many years, and arose out of an approach to the appellant's grandfather by the former Forestry Department to exchange that area for part of the adjoining freehold 97, for the planned use of a forestry nursery. Mr Webb notes that Reserve 329 has never been fenced from Lot 97, and if a new lease was not forthcoming, then major fencing would be required on those common boundaries between Lots 97 and 100. He advises also that the forestry nursery had not proceeded. However those are not issues for consideration in the current matters.
In explaining his approach to the two remaining matters, Mr Webb explains that he has based his estimate of the unimproved value of AV2003/0214 ($59,000) and AV2003/0227 ($7,400) at the same level as the previous unimproved values of those two parcels. He notes that the 197.5 hectares of AV2003/0227 has virtually remained unoccupied for about 150 years, which he argues provides an indication of the type of country that it represents.
Nature of the lands –
Mr Webb overall agrees with Mr Ridley's assessment of the nature of the subject land in AV2003/0214, but argues that Mr Ridley has not fully allowed for the disabilities of the very steep country, and the current restrictions upon maintenance clearing of timber needed to ensure adequate pastures for cattle. Mr Webb argues that new growth of noxious weeds such as "Creeping Lantana" are now expanding at a rapid rate. He advises that the low "Creeping Lantana" may be poisonous to cattle, and while frost tender in winter, overall it kills off the good grass feed. He notes that the current restrictions upon maintenance clearing of useless timber is a major problem, as it is now dropping the water table, and thus reducing available water from springs for stock. He notes that the dense tree cover is restricting grazing operations, and Government restrictions are impacting viability, and carrying capacities are now reducing.
Mr Webb agrees that in good times Cherry Tree Creek, which traverses Lot 101, does provide adequate water for stock. However during the very dry recent few years, the creek has been dry and the existing internal fence across Lot 101 has had to be opened to allow cattle to drink at the waterhole along the Brisbane River (see photograph 2, Exhibit 4). Mr Webb estimates the current carrying capacity of Lot 101 at about 1 beast per 5.6 ha (1 beast to 10 to 12 acres). Mr Webb currently has about 60 head of cattle on Lot 101, which is used for both breeding and fattening of cattle. The homestead is located on the adjoining Lot 100 to the south.
However Mr Webb agrees with Mr Ridley's overall assessment of about 200 hectares of moderate forest slopes with iron bark and gum trees, and 172 hectares of steep forest slopes. Mr Webb notes that grasses, which are a bigger deterrent to erosion, do not grow on rocky areas, or where the "Creeping Lantana" is destroying the grass pastures. Mr Webb also argues that replacement fencing along the old survey boundary (1885) on the northern side of Lot 101, would be very difficult due to the very steep nature of the terrain in that area. Mr Webb advises those areas are completely inaccessible to 4 wheel drive vehicles, so fencing costs would be very expensive. Mr Webb's family has occupied the land since soldier settlement from World War I about 80 years ago.
In respect of the lease of 197.5 hectares on AV2003/0227, Mr Webb advises that he has not been able to run cattle upon that land, in the upper reaches of Avoca Creek, for the last two years because of lack of any water for stock. He advises that he has leased that area for 15 to 20 years, and argues that has poor access, a water shortage in dry seasons, a low carrying capacity, is heavily timbered and mostly bladed grass. He advises that he had to build about 1.6 km of fencing to enclose Lot A, as it was only fenced on the north-west and north-eastern sides (Exhibit 7 – map). It was formerly a forestry area. Mr Ridley has not personally inspected that leased 197.5 ha area, but argues that based upon Mr Webb's advice of 1 beast to 5.6 ha, (1 to 12 acres), the value of $10,000 for that parcel is reasonable in view of its ability to provide reserve holding capacity to take pressures off the other adjoining lands. Mr Ridley has made his assessment of country type based upon stereoscopic examination of aerial photos, and a personal inspection of Lot 101.
Mr Webb notes that the nature of the lands were set out in an earlier decision by the President of this Court in HL, IJ and CG Webb v Valuer-General (V86/143) 7 March 1987, unreported, with which he agrees. Mr Ridley agrees that while the gravel access road is "not too bad" (transcript 41), the river crossings can flood. It is also agreed that the gum top box country on the subject lands is liable to "tunnelling" which can impact stock. Mr Ridley also argues that while the country type is thickly timbered with poor grasses, it still runs about 10 to 12 head of cattle per acre as noted previously by the President. Mr Ridley argues that he has included all of those features in his valuations.
In respect of perceived current problems with vegetation management, Mr Webb advises that his personal enquiries at the Kingaroy office of the respondent Department, had left him with an understanding that maintenance clearing of timber could be a problem on the subject land. In response to that opinion Mr Ridley supplies a vegetation control map of the subject land (Exhibit 3). He notes that most of Lot 101, except for several small areas in the centre and north-eastern side, are shown as areas where vegetation restrictions are not applicable. On that basis he argues that the appellant has a reasonable outcome of permission being granted to thin the troublesome timbers to enhance grazing. He argues that similar areas clear of remnant endangered vegetation exist upon his comparable sales, so that any uncertainty about clearing rights would be reflected in those sale figures. He advises that people on similar uncoloured parts of the vegetation mapping are treating regrowth similarly to historical approaches. It is only in the coloured declared areas that restrictions are occurring. He argues that the problem for owners is really one of the delineation of the protected areas, where care must be exercised.
Comparison of sales –
Mr Webb provides no sales to support his estimates of the unimproved values, and argues there had been no sales of properties close by to the subject lands. He agrees that in the general district there had been some sales, but argues that those properties had been purchased by business people who generate their income from elsewhere. Mr Webb agrees that he had sold land on Squirrel and Avoca Creeks about seven to eight years ago, as part of a process of rationalising his family estates due to the ill health of his brother. However he advises that sale to Mr Clarkson was for land about 15 km south of the subject lands, and Mr Clarkson bought that very hilly country for $235 per ha ($94 per acre), and subsequently leased that parcel out following that sale.
Mr Ridley provides the following sales to support his valuations:
· Sale 1 – (Linville Road, Linville (Carseldine to Earle). This is a 1,588 ha property located about 30 km south of the subject land. The sale comprises moderate to steep forest country with narrow creek frontages and small areas of scrub. There is permanent water in Blackbutt Creek. The sale has superior location, services and access, and has superior country type and a better distribution of natural water. The sale is a larger parcel, and is seen overall as superior on a rate per hectare basis. The sale was purchased by an adjoining owner, and sold in March 2002 for $1,250,000. Allowing for stock, structures, fencing, water and timber treatment, the sale price was analysed at $522,522 ($320 per ha), and has been amalgamated with the adjoining property for valuation purposes.
· Sale 2 - (Ivory Creek Road, Toogoolawah – Lot 137 on CA 31890 – (Arnold to Loveland). This is a 254.952 ha vacant parcel located about 50 km south of the subject land, and only 5 km north of Toogoolawah. The sale comprises mainly easy to moderate sloping forest, with areas of steeper country with exposed rock areas. Water is provided in dams from surface runoff. The sale has superior location, services and access, and is superior country type, but it lacks natural water. Overall the sale is superior on a rate per hectare basis. The sale sold in October 2002 for $230,000, was analysed at $155,848 ($611 per ha), and applied at $143,000 ($560 per ha).
[18]
· Sale 3 – (Cooyar Creek Road, Avoca Vale – "Tucheringa" – Thomson to Christensen). This is a 1,068 ha property located about 18 km south of the subject lands. The sale has easy to moderate forest grazing country, with some steeper timbered lands to the western part. There is permanent natural waters in Cooyar Creek and the Brisbane River. The sale has superior location, services and access, and is superior country type, and has better natural waters available. Overall the sale is seen as superior on a rate per hectare basis. The sale sold in October 2002 for $950,000, was analysed at $500,810 ($469 per ha), and applied as four separate parcels for a total unimproved value of $499,000 ($467 per ha).
As noted in paragraph [14] each of those three sales has similar vegetation management implications as the subject land, and that would have been considered by those prudent purchasers. While at the date of valuation there was a State-wide embargo upon clearing, that embargo also affected the sale lands, so that any uncertainty was also reflected in those sales. In respect of the adjoining owner influence on Sale 1 (Carseldine to Earle), Mr Ridley has made some adjustment for any premium that may have been paid. Mr Ridley also notes that each of those three sales would have also been affected by the severe drought in that area at the dates of sale.
Mr Ridley advises that sales throughout the whole of the Shires of Boonah, Gatton, Laidley and Esk had all reflected increases in value during the relevant period, after many valuations remaining static for the subject lands. Mr Ridley has used his three selected sales as reflecting prices nearer to the subject lands. He notes that Lot 101 (AV2003/0214) has been increased by 25% in line with the other similar sized properties in that area.
In explaining his method of valuation, Mr Ridley advises that the sales had been compared on a site to site basis, with the use of a per hectare comparison as a further aid in assessing the properties. He argues that each of those purchasers of his sales were conversant with cattle operations in the upper Brisbane and Stanley Rivers catchment areas, and are seen as prudent buyers. He agrees that there is a market in that area for rural home buyers, but argues that his selected sales were all used for "farming" purposes under s.17 of the Act, and are therefore reasonable comparisons. He advises further that the purchaser of Sale 2 (Arnold to Loveland) purchased that parcel to run a few breeders, separate to his better quality scrub country.
Mr Ridley advises that his Sale 1 is particularly steep, Sale 2 has small areas of steep country, while Sale 3 has its steeper lands confined to the western areas, which is a lesser disadvantage than on the subject land. Mr Ridley also agrees that generally prices paid for larger properties are less per hectare than comparable smaller properties. However he notes that principle can be taken too simplistically, as it can be influenced considerably by differences in the country type. In drawing his comparisons, Mr Ridley has sought to maintain the relativities established by this Court in 1987.
Relativity –
In maintaining the previous relativity between Lot 101 and the adjoining Lots 99 and 100 (AV2003/0215), Mr Ridley has accepted the Court's directions, based upon valuation evidence, that both parcels should have equal rates per hectare, balancing the differing disabilities of both parcels (p.4). It is noted that while Lot 101 is conceded to be steeper and inferior country type, the adjoining lands to the south suffer restrictions on tenure on the State Forest Reserve (Reserve 329), precipitous vine scrub, and similar erosion and land degradation. I would agree with Mr Ridley that maintenance of that relativity, in the absence of other evidence, would be appropriate.
However I note that the matters of AV2003/0215 and AV2003/0216 are currently adjourned due to the lapsing of the lease on Reserve 329, and the uncertainty about whether that Reserve area will continue to be available to the appellant. I note that Mr Webb sees continued use of Reserve 329 as important to the future operations of "Gibbarnee". However, I note that because of its steep terrain, and its unlikely use as a "forestry nursery", in spite of its Brisbane River frontage, Reserve 329 was likely to have disabilities which could influence the overall relativity with Lot 101.
While Mr Ridley agrees that areas of land in that locality such as Lot 101 and Reserve 329 are not separate "living units", and thus comparisons with whole "farming" operations may not be truly comparable, however he argues that when such small parcels are placed on the market, they tend to attract higher prices for grazing purposes. Mr Ridley argues that relativities throughout that general area have been retained for about 60 years, and without strong evidence to the contrary, he saw no reason to change the 13 affected properties in that area. He argues that except for matters of access, the broad country type is all Brisbane River forest, and is fairly large scale grazing country.
Decision:
Nature of the lands –
While the appellant argues that Mr Ridley has made insufficient allowance for the disabilities of the subject lands, he does not disagree overall with the respondent's assessment of the type of country. As those matters were apparently considered in some detail before the President of this Court in 1987, I see no reason to change that understanding. While Mr Ridley has not personally inspected the 197.5 ha leasehold parcel (AV2003/0227), he has undertaken a detailed examination of aerial photography of that area, and drawn comparisons with his personal knowledge of the nearby Lot 101.
The use of stereoscopic examination of aerial photos is a well recognised method of land assessment, and involves a detailed examination of the visually enhanced three dimensional model of the terrain in the aerial photographs. Mr Ridley has recorded those visual interpretations in his land classification sketch maps (Exhibit 6, page 7, and Exhibit 7, page 3). I see no reason to question his understanding of the land types for valuation purposes. The agreed comparable beast carrying capacities would tend to support that understanding.
In respect of the appellant's concern that "vegetation management" legislation is causing a serious problem for farmers across Queensland, I accept that is a view widely held by the rural community. Indeed, where farmers have long held the view that the maintenance of vegetation cover was an enshrined right of the freehold land tenure system, to now be presented with a legislative restriction, would certainly seem a new restriction upon the use of the land for farming purposes. While the unimproved value of all lands is determined to not include the value of timber or minerals (s.16); it also notes that any land which is not freehold lands must be valued as if those lands are taken to be granted in fee simple (s.14(1)).
Now while the value of timber upon leasehold land is reserved to the Government, the value of timber upon freehold land is vested in the owner of that land. To be restricted in how that owner can use that timber is seen by the farming community as an infringement upon their rights of ownership. But such restrictions are now widely applied upon many freehold lands other than rural farming lands. Operations of the Local Government Act, the Integrated Planning Act and other planning legislations all monitor and control developments on the use of freehold lands in urban communities. The Vegetation Management Act 1999 has now extended similar controls to rural areas.
Now while I note that the Vegetation Management Act 1999 is apparently expanding the level of control by Government in line with similar planning controls elsewhere in the community, that must also be seen in the perspective of new penalties which are now being brought upon farming practices. I note for instance in the decision of the Federal Court of Australia in Minister for the Environment and Heritage v Greentree & Ors [2004] FCA 74, 11 June 2004, unreported, that those matters were explored. In that matter clearing of certain protected wetlands unlawfully occurred in 2003, and were subsequently sown to wheat (paragraph [187]). In the Federal Court, Sackville J found that a serious breach of the law had occurred in a protected area, and imposed penalties against the owner, and possible remediation relief to the Minister. Clearly the matter of breaches of habitat control is now gaining significance throughout Australia, and any prudent purchaser of the subject land would be conscious of any restrictions under vegetation management.
Indeed in the matter of Vegetation Preservation Orders (VPO) in urban areas, I note the history of the legislation enshrining power to the Brisbane City Council to determine VPOs was explored by the Full Court of Queensland in Bone v Mothershaw [2003] 2 QdR 600, from p.603 onwards. That matter dealt with lands at Rochedale in Brisbane, where about 32 ha of land was covered by a VPO, and was subsequently cleared unlawfully. A fine of $20,000 was imposed upon the appellant.
In his concurring decision in Bone v Mothershaw, the words of Williams JA in noting the concerns of the appellant, and also in light of the more recent findings of the New South Wales Court of Appeal in Durham Holdings, have some significance. Williams JA noted at paragraph [33]:
"[33] Counsel for the appellant in this case essentially attempted to contend that the bylaw here was so unreasonable that it could not be said to be a law for the welfare and good government of the citizens of Brisbane applying the Lynch test. In particular he referred to the fact that by virtue of s.23(2)(d)(ii) the mowing of lawn could even constitute a breach of a Vegetation Protection Order. Also, the removal of a tree blown over in a storm and thereby creating a nuisance could not be removed without Council approval (of course upon payment of the prescribed fee) unless it had 'become dangerous'. While the apparent unreasonableness of the bylaw in those regards is a matter of concern, the problems thereby identified are ultimately for the elected representatives of the community and not for the courts to resolve."
Williams JA went on to note at paragraph [35]:
"One of the major concerns of the appellant is that the value of his property has been significantly diminished by the impact of the vegetation protection order; effectively he cannot lawfully use his property in the way in which he could immediately prior to that order being made. Fair minded citizens would regard it as only just that a person in that position should be compensation for the loss suffered. But as is implicit in the reasoning of the High Court in Durham Holdings Pty Ltd v State of New South Wales (2001) 205 CLR 399 there is no common law right to compensation in Australia where a person is deprived of property rights by a State Law: it must follow that there is no such right where the loss is occasioned by a local authority by-law."
The concerns of Mr Webb in this matter are also supported by a recent decision of the Magistrates Court in Queensland in Doonan v McKay, [2002] QDC 209, where a considerable penalty was imposed upon a grazier (McKay) who was found to have illegally cleared timber shown as protected under the Vegetation Management Act. While appeal rights continue against that decision, considerable uncertainty lies within the rural community about the potential impact of that legislation.
In seeking to understand those vegetation management controls, I note that the purpose of that Act is enshrined in s.3(1), and the definition of vegetation management is included in s.9. The preparation of regional management plans is provided for under s.12. In respect of the subject lands, an Environmental Protection Authority (EPA) regional eco system map has been provided covering those parcels and the surrounding areas (Exhibit 3). Within Lot 101 there are four areas of remnant "of concern" dominant eco systems. While the adjoining Lot A (197.5 ha – AV2003/0227), is comprised totally of remnant "not of concern" regional eco systems.
The purpose of the vegetation management in those areas is to preserve any relevant "of concern" vegetation with a view to reducing land degradation, to maintain biodiversity and ecological processes, to allow for ecologically sustainable land uses, and to retain vegetation clumps or corridors. It is noted that under s.10(2)(b) the vegetation management policy must include a code for the "clearing of vegetation". It is further noted that, "clearing" of vegetation means to remove or cut down, ringbark, push over, poison or destroy the vegetation in any way. However it does not include any destruction of standing timber by stock, or the lopping of a tree, or the destruction of the vegetation in any way as a forest practice, which is taken to mean for the management of trees as part of a plantation, or for felling for timber purposes (other than wood chipping), and which does not cause land degradation (Dictionary of the Act). A "remnant of concern regional eco system" is defined as an area shown on a regional eco system map, or where there is no map prepared, where vegetation in an area of concern covers more than 50% of the undisturbed canopy, and which represents more than 70% of the vegetation height, and comprises specifies characteristic of the undisturbed canopy (Dictionary).
Where an area is shown as mapped as a remnant "not of concern" regional ego system, that is defined as an area where some clearing could be undertaken, subject to authorisation, before that area could move to a situation which could become an "of concern" area. Any approval for clearing of vegetation so declared is exercised under the Integrated Planning Act 1997, and under the Integrated Development Approval System (IDAS). While a comprehensive understanding of those criteria is likely to lead to uncertainty for land owners, I would agree with Mr Ridley that the major area for concern for owners is the delineation of the declared remnant areas. The small scale of the current mapping at 1:50,000 scale, in my opinion, means that field investigation by departmental officers is often likely to be the only safe method of avoiding conflict with the Act.
However on the evidence before me, there is no conclusive indication that the subject land is impacted by that Act to any greater extent than that demonstrated by sales of comparable lands in the marketplace, which have similar areas of declared vegetation management protection. On that basis I accept Mr Ridley's advice that the impact of the Vegetation Management Act 1999 has no selective further impact upon the subject land.
Comparison of sales –
If I look then to the sales evidence I find that Mr Ridley has relied upon an analysis of sales of comparable lands, and made his basic comparisons upon a site with site comparison. In concluding those comparisons he has followed guidance of the Court in DF and M Ward v Valuer-General (1983) 9 QLCR 48, where the Land Appeal Court considering the matter of relativity between farming properties in the Dalby area, noted at 50:
"We think, on the evidence as a whole, that the subject parcel falls to be valued as a 'site' and not as a farming or grazing property. It is therefore within the 'site' market category that relativity of valuation falls for consideration. Relativity with different land use market categories is not tenable. Such cross-reference of values is not a valid valuation exercise or in conformity with the cardinal principle of valuation which calls for comparisons of like with like in all relevant points of comparison including highest and best use. Sites are valued overall and not on a rate per hectare basis. The experience of the market place reflects the former not the latter practice. This Court made a similar finding in A.C.F. and Shirleys Limited v The Valuer-General (1978) 5 Q.L.C.R. 370 at p.375"
Indeed the use of retaining previous relativities was noted in Gibson Investments Pty Ltd v The Valuer-General (1978) 5 QLCR 223, where in considering the unimproved value of a pastoral holding in the Jericho Shire, the Land Appeal Court said at 230:
"It has been stressed on many occasions that reasonable property to property relativity within shires, is highly desirable to ensure an equitable distribution of the incidence of rating. We note from the record of the Court below that Mr Gibson was satisfied that the correct relativity had been achieved by the Valuer-General within the Jericho Shire.
Likewise, lands of similar quality and use in the vicinity of the boundary of adjoining shires, should bear reasonable relativity each to each both inter and intra shire. However, this is feasible only if the relevant dates of valuation are close in point of time and there have been no intervening circumstances affecting the market place."
If I look then at the comparisons, I find the following:
Sale Area Applied Value Rate per hectare Comparison 1 1,588 ha $522,522 $329 Superior 2 254.9 ha $143,000 $560 Superior 3 1,068 ha $99,000 $467 Superior Subject land 372.4 ha $74,000 $199 -
To support those conclusions, Mr Ridley has retained the longstanding relativity throughout that area, which he argues supports an increase in unimproved value of 25% in the relevant period (paragraph [20]). I see no error in that conclusion.
If I look then at the leased area of Lot A (197.5 ha - AV2003-0227), I find that has been valued at $10,000 or $51 per ha, based upon the same sales. That reflects an increase of 35%. Now while Mr Ridley may feel that value for 197.5 ha is a reasonable level for the flexibility that parcel provides for the adjoining subject lands, he has not demonstrated why the former relativity over the previous 15 to 20 years should have changed, and I see no reason to alter that relativity in the current matter. If I allow a similar increase of 25% to the leased area, I retain that former relativity at an unimproved value of $9,250.
Summary:
Now in summarising these matters, I am reminded that in respect of a Notice of Appeal, s.45(4) of the Valuation of Land Act 1944 directs:
"45.(4) Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner."
I am also reminded that s.33 of the Act directs:
"33. 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."
On that basis I believe that the appellants have not proved their case in respect of AV2003/0214; but have satisfied that the Chief Executive has no sound basis for his valuation of AV2003/0227.
Conclusion:
1.The appeals in respect of AV2003/0215 and AV2003/0216 are adjourned until a decision is made by the Environmental Protection Authority.
2.Having considered the whole of the evidence in respect of the appeal in AV2003/0214, I find that the appellants have not proved their case. The appeal is dismissed, and the unimproved value as determined by the Chief Executive in the sum of Seventy-Four Thousand Dollars ($74,000) is affirmed.
3.In the matter of AV2003/0227, I find that the appellant has in part proved his case. The unimproved value as determined by the Chief Executive is set aside, and the unimproved value of Lease A (197.5 ha) is determined at Nine Thousand, Two Hundred and Fifty Dollars ($9,250).
NG DIVETT
MEMBER OF THE LAND COURT
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