Willsford Pty Ltd as Trustee for the Willsford Real Estate Trust v Chief Executive, Department of Lands

[1995] QLC 145

[1995] QLC 145

 

  LAND COURT

BRISBANE

27 October 1995

Re:     Appeals against valuations -
Valuation of Land Act 1944 -
  Brisbane City Council - Moggill.
  (AV94-36 and V94-37).

Willsford Pty Ltd as Trustee for the Willsford Real Estate Trust
  v.
  Chief Executive, Department of Lands

D E C I S I O N

These are appeals against determinations of the Chief Executive, Department of Lands, of the unimproved value of Lots 2 and 3 on RP 844857, parish of Moggill, in the sums of $170,000 and $200,000 for the purposes respectively of

1)the general valuation of the area as at 31 March 1990 - V94-37; and

2)the Annual Valuation of the Area as at 31 March 1992 - AV94-36.

The appellants in their notices of appeal stated a value of $120,000 in each case on grounds that the applied value

(1)is out of relativity with other farm properties in the area as at 31 March 1990;

(2)does not properly reflect the use of the land;

(3)the land is subject to special disabilities;

and in respect of the second appeal, in addition to grounds 1 and 2 above, that

(3)the land is subject to special disabilities including VP0s on 70% of the area;

(4)prices of farm properties in Queensland were stable between 31 March 1990 and 31 March 1992;

(5)the increase in valuations is excessive.

Lots 2 and 3 contain 8.255 hectares and are situated at Upper Brookfield Road, Brookfield, about 200 metres east of the junction of Haven Road and Upper Brookfield Road.  The parcels are adjoining parcels which may be described as rear land connected to Upper Brookfield Road by access strips.  The land was acquired by contract executed in August 1991 which was settled in March 1992 following subdivision of the land from the land of the vendor.  Mrs Margaret Willsford, who appeared on behalf of the appellant owner, said that the land is within line of sight of land owned by a different family entity and situated in Haven Road where, since 1981, they have run poultry, grown macadamia and pawpaws.  She said that the subject land was purchased for the purposes of agricultural production.  In March 1992, Vegetation Protection Orders were placed over the rear portion of Lot 2 and the whole of Lot 3.  Mrs Willsford said that since purchase and fencing the land, some cattle were run on the lots - 3 head at that stage.  Prior to the subdivision and prior to the valuation dates, the land was not used for anything "because the fellow was already in his eighties and since he had polio as a child, he was fairly crippled".  The consideration paid for the land was $250,000.  This sale is relied upon by Mr Uday Singh, registered valuer in the employ of the Department of Lands, when he wrote the second valuation.  Mrs Willsford believes that the land should be valued as "farming" land as this was the purpose for which the land was purchased.  She produced details of "farming" valuations applied to some 15 lots in the area of which she said four were of comparable size including a lot of 8.446 hectares (White) which is valued at $95,000 or $11,248 per hectare.  In each case, Mr Singh has valued the land for a highest and best use as a rural residential site.  In order for the appellant to succeed in its submission, the use made of the land at the respective valuation dates would need to satisfy the criteria found in s.17 of the Act and in the definition of "farming" -

"'farming' means -

(a)the business or industry of grazing, dairying, pig farming, poultry farming, viticulture, orcharding, apiculture, horticulture, aquiculture, vegetable growing, the growing of crops of any kind, forestry; or

(b)any other business or industry involving the cultivation of soils, the gathering in of crops or the rearing of livestock;

if the business or industry represents the dominant use of the land, and-

(c)has a significant and substantial commercial purpose or character; and

(d)is engaged in for the purpose of profit on a continuous or repetitive basis.  "

The Land Appeal Court has considered this criteria in depth in the case of Whackett v. Chief Executive, Department of Lands (AV93-163/164) - 3 March 1995 to be reported.  I have no need to address the criteria in the subject case as the land was not used for farming of any description or substance at the relevant dates of valuation.  It follows that the land must be valued for its highest and best use which as evidenced by the sales, including the consideration paid by the appellants for the subject land is for rural residential purposes.
           For the purpose of the first valuation (31 March 1990), the valuation must be made on the assumption that the land, as subdivided in 1992, existed at the date of the previous General Valuation.  See Del Villar Investments Pty Ltd v. The Valuer-General (1986/87) 11 QLCR 159.
           For the purposes of this valuation there is no evidence upon which I can find that the applied value of $170,000 is incorrect.
           The relevant date of the second valuation is 31 March 1992.  At that date, VPOs had been issued covering the rear of Lot 2 and the whole of Lot 3.  Having concluded that, for the purposes of the valuation, the provisions of s.17 have no application, it is unnecessary to address the question as to the effect a VPO may have on farming or potential farming land.  The price paid for the land by the appellant when compared with the "farming" valuations put in evidence by Mrs Willsford demonstrate clearly that the consideration paid was for the higher and better use of residential living.
           In the analysis of the sale, Mr Singh valued access to the lots and clearing that existed on sale at $15,000, leaving a land value of $235,000, the applied value is $200,000.  The VPOs issued subsequent to the execution of the contract of sale in August 1991.  The two remaining sales used by Mr Singh as evidence of value were also completed prior to the issue of the VPOs which cover the whole of those lots.  These sales were of Lot 23 on RP 234265 - Grandview Road, Pullenvale, containing 6.141ha - which sold for $250,000 on 10 October 1991 and Lot 7 on RP 234246 - Savages Road, Brookfield, containing 4.161ha - which sold on 11 July 1990 for $130,000.  For the purposes of this Annual Valuation, these lots are valued as rural residential sites at $235,000 and $108,000 respectively.  Both are of rear land with long access strips - Lot 23 with 550 metres of shared access and Lot 7 of 350 metres with a culvert crossing.  In the experience of Mr Singh, the issue of VPOs has had no depreciatory effect on the value of land for rural residential living for reasons that selective clearing for homesite purposes is permitted by the Local Authority.  He said that Lot 23 on RP 234265 since the issue of the VPO had been amalgamated with other land and then subdivided into two 4-hectare sites.
           Under the Act the onus of proving that the applied value is incorrect rests upon an appellant.  On the evidence in this matter, the onus has not been discharged. 
           In the circumstances, both appeals are dismissed and the determinations of the Chief Executive are affirmed.

(DM White)           
  President of the Land Court