Duncombe & Anor v Valuer-General [2015] QLC 4 (2015) 36 QLCR 1

LAND COURT OF QUEENSLAND CITATION: Duncombe & Anor v Valuer-General [2015] QLC 4 PARTIES: Joseph Lawrence Duncombe and Margaret Ann Duncombe (appellants) v Valuer-General (respondent) FILE NO: LVA353-12 DIVISION: General Division PROCEEDING: Appeal against valuation under the Land Valuation Act 2010 DELIVERED ON: 13 February 2015 DELIVERED AT: Brisbane HEARD ON: 20 August 2014 HEARD AT: Charters Towers MEMBER: PA Smith ORDER: 1. The appeal is allowed. 2. The unimproved value of the subject property is fixed in the sum of Two Million, One Hundred Thousand Dollars ($2,100,000) as at 1 October 2011. CATCHWORDS: Valuation – appeal against annual valuation – relevant sales Valuation – valuation methodology – whether sales meet the “Spencer test” Valuation – enquiries by valuer – weight to be given to enquiries made by others and adopted by valuer Valuation – carrying capacity – use as a check method Land Valuation Act 2010 Land Court Act 2000 Brewarrana Pty Ltd v Commissioner of Highways, S.A. (1973) 32 LGRA 170 Callcott v Chief Exeuctive, Department of Natural Resources and Mines Unreported, Land Court of Queensland, 28 September 2011, AV00-620 -- 1 of 14 -- 2 Fairfax v Department of Natural Resources and Mines [2005] QLC 11 Fenton Nominees Pty Ltd v Valuer-General (1981) 47 LGRA 71 Mayne Property Development Pty Ltd v Chief Executive, Department of Natural Resources (1996-1997) 17 QLCR 709 Donald Neil Meiers and Florence Myrtle Meiers v Valuer- General [2012] QLC 19 Micaesea Pty Ltd v Department of Natural Resources and Mines [2004] QLC 0079 Nimmo v Department of Natural Resources and Mines [2005] QLC 0028 Spencer v The Commonwealth (1907) 5 CLR 418 Steers v Valuer-General [2012] QLC 12 APPEARANCES: Mr JC Duncombe representing himself and his wife MA Duncombe Mr PS Prasad, legal officer, In-house legal, Department of Natural Resources and Mines, for the respondent Background [1] This is an appeal by Joseph Lawrence Duncombe and Margaret Ann Duncombe (the appellants) against a determination by the Valuer-General (the respondent) of the unimproved value of the appellants’ property known as Clarke Hills as at 1 October 2011. Pursuant to the provisions of the Land Valuation Act 2010 (LVA), the respondent initially valued the appellants’ land at $2,500,000. [2] By letter dated 4 July 2014 the respondent, in accordance with the provisions of s 163 of the LVA, reduced the valuation of Clarke Hills to $2,300,000.1 [3] By their notice of appeal, the appellants contended for an unimproved value of Clarke Hills of $1,000,000 as at 1 October 2011. However, during the course of the hearing, the appellants revised their estimated of valuation to “somewhere slightly less than $2 million”. 2 [4] Clarke Hills is a rural property. Accordingly, pursuant to the provisions of the LVA, Clarke Hills has been valued as unimproved land. The subject land [5] Clarke Hills is situated about 249 km by road north-west of Charters Towers. The road access is 107 km of bitumen on the Flinders Highway to Pentland, followed by 142 km of mostly gravel road. The access may be cut by flooding during the wet season. 1 See Ex 5. 2 T 1-51 line 47. -- 2 of 14 -- 3 [6] Charters Towers is a well serviced town which has primary and secondary schools, a hospital, supermarkets and saleyards. [7] Clarke Hills is connected to rural power and telephone services. The property is comprised by two parcels, being Lot 3578 on PH 30 and Lot 4 on PP 19. Lot 3578 is a large irregularly shaped parcel, while Lot 4 is smaller and regularly shaped. Pursuant to the LVA, both lots have been valued together to arrive at a single valuation. [8] As stated in Ex 4, Clarke Hills, 3 is located near the top of the watershed and Lot 3578 contains the headwaters of, and is intersected by, the Clarke and Dry Rivers and the Gregory River forms much of the northern boundary. Lot 3578 contains a mix of landforms. In the northern part it is predominantly undulating granite hills intersected by narrow creek/river flats and hollows with an area of level black and red basalt soil in the north east corner. The central and southern part is comprised of undulating to rugged granite hills with narrow creek flats and isolated pockets of level to undulating basalt country and an area of rugged unavailable basalt. Lot 4 is mostly near level to slightly undulating box flat and ironbark granite slopes intersected by the Clarke River. The Hearing [9] Mr Duncobme represented himself and his wife and gave evidence at the hearing. Mr Duncombe has no legal or valuation qualifications. The respondent was represented by Mr Prasad and relied on the evidence of a registered valuer, Mr Cotter. [10] An inspection of the subject land, in the presence of both parties was undertaken on 19 August 2014 and the hearing was held at Charters Towers on 20 August 2014. The Valuation Process [11] It is the responsibility of the respondent to undertake a valuation of not only the subject property, but all properties throughout Queensland. Those valuations are the basis for rating and land tax and related purposes. [12] I note with approval what His Honour Isdale said in Steers v Valuer-General:4 “[8] The use of sales to provide comparisons of value is well established. In NR and PG Tow v Valuer-General (1978) 5 QLCR 378, the Land Appeal Court constituted by Stable SPJ, Mr Smith and Mr Carter said at page 381: ‘Courts of the highest authority have laid down that the best test of value is to be found in the sales of comparable properties, preferably unimproved, on the open market round about the relevant date of valuation and between prudent and willing, but not over-anxious parties.’ 3 Ex 4 p 5. 4 [2012] QLC 12. -- 3 of 14 -- 4 [9] This Court is required to follow the decisions of the Land Appeal Court and accordingly must prefer the evidence of comparable sales to the method contended for by the appellant, simply increasing a previous value by a factor of 10. Mr Steers did not explain why this particular multiplier and not some other one should be applied.” [13] Market value is also a relevant feature to consider under the LVA. As then President Trickett said in Fairfax v Department of Natural Resources and Mines:5 “[11] The principles for determination of the ‘market value’ of land were established by the High Court in Spencer v The Commonwealth (1907) 5 CLR 418. In that case, the High Court found that the value of land is determined by the price that a willing but not over-anxious buyer would pay to a willing but not over-anxious seller, both of whom are aware of all the circumstances which might affect the value of the land, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding facilities, the then present demand for land and the likelihood of a rise or fall in the value of a property. (See Griffith CJ at 432 and Isaacs J at 441). [12] It has been well established that the unimproved value of land is ascertained by reference to prices that have been paid for similar parcels of land in Waterhouse v The Valuer-General (1927) 8 LGR (NSW) 137 at 139, Pike J said that: ‘Land in my opinion differs in no way from any other commodity. It certainly is more difficult to ascertain the market value of it but-as with other commodities-the best way to ascertain the market value is by finding what lands comparable to the subject land were bringing in the market on the relevant date-and that is evidenced by sales.” [14] In essence, the Spencer test6 has been codified in s.18 of the LVA, which provides as follows: “18 What is a bona fide sale (1) A bona fide sale, for land, is its sale on reasonable terms and conditions that a bona fide seller and buyer would require assuming the following (the bona fide sale tests)— (a) a willing, but not anxious, buyer and seller; (b) a reasonable period within which to negotiate the sale; (c) that the property was reasonably exposed to the market. (2) For subsection (1), in considering whether terms and conditions are reasonable, regard must be had to— (a) the land’s location and nature; and (b) the state of the market for land of the same type. (3) To remove any doubt, it is declared that if— (a) there is a sale of the land in question; and (b) the bona fide sale tests are complied with; the sale is a bona fide sale. (4) In this section— land in question means land whose value is being decided.” 5 [2005] QLC 11. 6 Spencer v The Commonwealth (1907) 5 CLR 418. -- 4 of 14 -- 5 [15] Importantly, the LVA casts the following duty on the appellant at the hearing in s.169(3): “However, the appellant has the onus of proof for each of the grounds of appeal.” [16] It should also be noted that appeals under the LVA are to be determined on what is essentially the balance of probabilities.7 The Appellants’ evidence [17] Mr Duncombe gave both statement and oral evidence to the Court. His statements are Ex 2 and Ex 3. His grounds of appeal were set out in very simple terms in Ex 1, alleging that the valuation of Clarke Hills was inconsistent with the sale of a similar property. [18] It could perhaps have been argued by the respondent that the evidence put forward by Mr Duncombe in Ex 2, where he referred to 10 sales, went further than the grounds of appeal. The respondent however made no submissions in this regard, and, in my view, acted responsibly in so doing. [19] The appellants’ grounds were clearly that the valuation of Clarke Hills was too high in light of comparable market evidence. The evidence which the appellants led was clearly consistent with the appeal. The respondent is to be congratulated for not attempting to take issue with the evidence in light of the grounds of appeal. [20] As well as referring to the 10 sales which he said were comparable, Mr Duncombe also took issue with the classifications of some parts of Clarke Hills by the respondent. He also contended that the overall carrying capacity of Clarke Hills was 1:25 and not 1:20 as put forward by Mr Cotter. [21] As regards issues relating to the classification of Clarke Hills, Mr Duncombe made his position clear, both by visual representation at the view, and in his oral evidence. [22] While not necessarily accepting Mr Duncombe’s classifications, Mr Cotter made an adjustment to his classification figures taking into account what Mr Duncombe said. 8 [23] I found Mr Duncombe to be a truthful witness. I accept his evidence as to the classification of Clarke Hills. [24] I note that, based on the amended classification figures, Mr Cotter’s assessment of carrying capacity becomes 1:20.4. 9 I will make further observations on carrying capacity later in these reasons. [25] I turn now to Mr Duncombe’s evidence of comparable sales. 7 See Donald Neil Meiers and Florence Myrtle Meiers v Valuer-General [2012] QLC 19 at [27]. 8 T 1-22 line 11 to line 42. 9 T 1-24 line 20. -- 5 of 14 -- 6 [26] Although Mr Duncombe refers to 10 sales, his material in this regard has been well summarised in Ex 2 as follows: 10 “Sales Evidence: Charters Region 2009 to 2012 4/09 Camden Park 66,814 acres, 130 km north east of Hughenden. Sold for $5.6million with 2,600 cattle including 800 steers plus a good list of plant. Country comprises about 15,000 acres basalt, balance granite forest. Improvements to a high standard. Sale analyses at roughly $55 per acre or $1,200 per beast area. 11/09 Bodalla 75,390 acres, 130 km west of Charters Towers. Sold for $6million with 4,000 cattle and basic plant included. Roughly 1/3 basalt with Lolworth Creek frontage, 1/3 granite spear grass country, balance rough but usable range. Sound structures. Approx.. $60 per acre, $1,100 per beast area. 1/10 Christmas Creek 102,547 acres, 160 km north of Charters Towers. Sold for $7million with 800 cattle and plant included. Burdekin river breeding country, primarily ironbark, spear grass, some good frontage areas plus some range, bitumen highway access. Approx.. $65 per acre, $1,300 beast area value. 6/10 Goldsborough 88,957 acres, 160 km west of Charters Towers. Sold for $4.75million with 4,200 cattle and plant included. Well regarded breeding property with Cape River frontage, red soil granite, low hills, sandy tableland, good waters, sound structures. Approx.. $36 per acre, $800 per beast area. 12/10 Bullock Creek 183,100 acres, 80 km west of Mt Garnet. Sold for $2,657,200 with 1,400 mixed cattle plus plant. Granite breeding country, sandy soils, gravelly ridges, small areas of range, sound improvements, inferior cattle. Approx.. $11 per acre, $500 per beast area. 11/11 Keen Gea 47,791 acres, 240 km south west of Charters Towers. Sold for $4.4million with 1,700 cattle and plant included. Level country mostly pulled, featuring softwood scrub, bauhinia, gidgee with black soil plains also sandy loam ironbark, box country plus channel of Torrens Creek system with buffel grass, sea stylo well established. Sound improvements, upgrading required. Carrying capacity 3 to 4,000 head. Est. $75 per acre, $1,000 per beast area. 12/11 St Ronans 44,000 ha (108,724 acres) 60 km south west of Mt Garnet, 370 km north of Charters Towers. Sold for $4million with 800 cattle plus plant, farming equipment included. Primarily red and black basalt country running to granite forest, range areas, 6,000 acres cleared, 3,000 acres cultivation. Structures include 2,000 head feedlot, grain silos, steel yards, older style homestead, machinery sheds. Carrying capacity 4,500 head. Sale analyses at $30 per acres, $700 per beast areas. 5/12 Toomba 47,500 ha (117,373 acres) 100 km west of Charters Towers. Sold for $7.4million with 3,670 cattle including steers, bullocks and extensive list of plant, including airplane and stock horse stud. Unique mix of country with red, black basalt fattening country plus fertile Lolworth creek frontage, box and ironbark forest, plus an area of wetland with heavy para grass, springs and swamps. Some waste country, basalt wall. Carrying capacity 5,000 mixed cattle, turning off bullocks. Sale reflects $50 per acre, usable county, $950 per beast area. 10 Ex 2 p 1-3. -- 6 of 14 -- 7 6/12 Rosella Plains 81,600 (201,635 acres) 300 km north west of Charters Towers. Sold for $7.3million with 5,000 cattle and full list of station plant included. God balance of country, red and black basalt plus granite forest country. Improvements of high standard, good quality cattle herd. Carrying capacity 8,000 head. Sale analyses at $600 per beast area of $24 per acre. 7/12 Beverley Hills 50,500 ha (125,540 acres) 45 km south west of Einasleigh, 380 km north west of Charters Towers. Sold for $2,250,000 with 1,510 branded cattle plus progeny and basic plant included. Useful breeding country with areas of range, tidy improvements, good quality cattle herd. Carrying capacity 2,500. Beast area value $500, $10 per acre.” [27] Mr Duncombe in particular gave important further evidence regarding the Goldsborough sale. His evidence is that he spoke to the vendors and they informed him that they wanted to sell Goldsborough but they were not in the position where they had to sell at any price. They wanted to make sure that they got fair value for their property. 11 [28] During cross-examination Mr Duncombe conceded that he had relied on a real estate person for the information regarding his 10 sales. 12 He also conceded that he had not analysed the 10 sales to an unimproved value. 13 The Respondent’s evidence [29] The respondent relied on the evidence of a highly experienced registered valuer, Mr Gary Cotter. Mr Cotter relied on the direct comparison method of valuation with regard to relevant sales.14 [30] Mr Cotter relied on four sales for his direct comparison method of valuation. Helpfully, he provide a table summary of his sales as follows: 15 Sale Date of Sale Area Carrying Capacity Sale Price Analysed rate Applied rate Comparison Bodalla 11/2009 30,510 ha 1:17.5ha (1727 head) $6,000,000 ($196/ha) $3,472/BA) $2,807,946 ($92/ha) ($1,625/BA) $@,300,000 ($76/ha) ($1,331/BA) Superior on per hectare but overall similar in value due to difference in size Goldsborough 06/2010 36,000 ha 1:23.5ha (1526 head) $4,750,000 ($132/ha) ($3,013/BA) $1,292,826 ($36/ha) ($847/BA) $1,750,000 ($49/ha) ($1,146/BA) Slightly superior on per hectare but inferior overall due to its size Vee Nee 04/2011 12,100 ha 1:17ha (720 head) $2,800,000 ($231/ha) ($3,888/BA) $1,888,633 ($156/ha) ($2,622/BA) $1,100,00 ($91/ha) ($1,530/BA) Far superior on per hectare but overall far inferior due to its size The Bluff 07/2011 31,400 1:18.5ha (1699 head) $5,850,000 ($186/ha) ($3,443/BA) $2,738,475 ($87/ha) ($1,611/BA) $2,200,000 ($70/ha) ($1,294/BA) Far superior on per hectare but overall similar due to the difference in size Subject “Clarke Hills” 50,764 ha 1:20 (2549) $2,300,000 ($45/ha) ($900/BA) 11 See T 1-3 lines 29-37 and Ex 3. 12 T 1-12 lines 24-35. 13 T 1-12 lines 43-44. 14 Ex 4 p 8. 15 Ex 4 p 11. -- 7 of 14 -- 8 [31] As regards the Goldsborough sale, Mr Cotter in his report stated that it was purchased by an adjoining owner from vendors who were financially pressed at the time. 16 During cross-examination, he stated his opinion that Goldsborough sits “way below” his other sales, 17 and that in every market there are low and high sales and it is the role of the valuer to interpret the market. 18 Mr Cotter further stated in cross-examination that the vendors of Goldsborough needed to sell for financial reasons. Importantly, when further questioned in this regard by Mr Duncombe, Mr Cotter admitted that he did not make his own enquiries but that “the sales analysis was undertaken in collaboration with a fellow valuer and that was the information that he was given” 19 by the vendors. [32] Mr Cotter very helpfully in his report set out his response to the appellants’ evidence. 20 He notes that Bullock Creek, Keen Gea and St Ronans are all mortgagee in possession sales. Rosella Plains and Beverley Hills are both considered by Mr Cotter to be in a different market area and are eight and nine months respectively after 1 October 2011. Mr Cotter also considers Toomba a late sale as it was seven months after the relevant date. [33] Out of the appellants’ 10 sales, that only leaves Camden Park, which Mr Cotter considered was too early a sale being two and a half years before the relevant date, and Bodella and Goldsborough, which he notes are his sales one and two Key Findings [34] An important sale for both parties is that of Goldsborough. While Mr Cotter includes it in his list of sales, he considers it a low sale out of kilter with the rest of the market. His reason for this is that he understands that the vendors were financially strained. Therefore, although he has analysed the sale to $36/ha, his applied rate for the sale is $49/ha. 21 This represents an increase of over 36%. [35] Interestingly, in oral submissions, Mr Prasad for the respondents attempted to water down the reliance that the Court can apply to the appellants’ sales generally on the basis that they did not obtain the sales evidence themselves but via a third party.22 Unfortunately for Mr Prasad, specifically for the sale of Goldsborough, his words can apply with even greater force against his witness, Mr Cotter. As already detailed, the evidence makes it clear that Mr Cotter did not make any enquiries himself of the vendors 16 Ex 4 p 9. 17 T 1-29 lines 9-15. 18 T 1-29 lines 34-38. 19 T 1-30 lines 16-17. 20 Ex 4 Appendix 1. 21 Ex 4 p 11. 22 T 1-43 lines 25-28. -- 8 of 14 -- 9 in the Goldsborough sale, but that he relied on the work of another valuer of the respondent. [36] I can certainly appreciate why the respondent’s valuers, due no doubt to the sheer size of the annual valuation task and the number of valuers employed by the respondent, rely on each other for the exchange of information. However, as this case exemplifies, there are inherent risks with such an approach. [37] Firstly, Mr Cotter’s report is written in the first person. On its face, it is nothing other than his own valuation work. In circumstances where a valuer relies on the work of other valuers in the preparation of a report, that factor should be made clear on the face of the report. [38] Secondly, well before the time that he was required to give evidence, Mr Cotter clearly knew that the appellants took issue with the Goldsborough vendors being financially distressed. At that point, he had a choice: to either continue to rely on the enquiries of the other valuer; to present the other valuer to the Court to give evidence; or to make his own enquiries of the vendor. [39] Mr Duncombe has given evidence that he has spoken directly with the vendors, and that they satisfied him that they were not financially distressed and that, essentially, they got the best price for Goldsborough that they could from the market. Given that the evidence from Mr Duncombe is more direct than that of Mr Cotter, and bearing in mind s 7 of the Land Court Act 2000, I prefer the evidence of Mr Duncombe to that of Mr Cotter regarding the vendor’s position with respect to the Goldsborough case. [40] Further, I agree with Mr Duncombe that, if anything, the Goldsborough sale may be suspect in a Spencer23 sense, not because it is low, but because it is to an adjoining owner who, the evidence suggests, was eager to purchase. Accordingly, it may actually be an above market sale. [41] Properly analysed from an adjoining purchaser perspective, it may be that the price of Goldsborough should be analysed down, not up, thus further strengthening the appellants’ case. However, as authorities on adjoining owner purchases show, care must be taken in analysing sales to neighbours. [42] As Wells J said in Fenton Nominees Pty Ltd v Valuer-General:24 “The sort of situation in which a purchaser by an adjoining owner becomes suspect is where the purchaser is induced or forced to acquire the land, by unconditional contract, once and for all, to gain some obvious commercial advantage, or to escape some threatened commercial disadvantage. In such a case, the special hope or threat turns him into an anxious purchaser.” 23 Spencer v Commonwealth (1907) 5 CLR 418. 24 (1981) 47 LGRA 71 at 81. -- 9 of 14 -- 10 [43] Such evidence as to the sale of Goldsborough as there is shows that it was put to auction and, after being passed in, subsequently sold many months later for a sum considerably greater than that for which it was passed in. There is nothing more than passing remarks as to the intentions of the purchasers in buying Goldsborough. Absent anything definitive, I am prepared to accept the Goldsborough sale as one meeting the Spencer test, and therefore the LVA requirement, as a bona-fide sale. However, there is insufficient evidence to support a reduction of the analysed price due to the adjoining owner being the purchaser. [44] I now turn to consider Mr Cotter’s expert valuation evidence against the sales evidence of Mr Duncombe. [45] The respondent has submitted that the appellants’ sales evidence cannot be relied upon because they are not properly analysed to unimproved value; mortgagee in possession; and/or in a different locality and market to the subject.25 Save for the two common sales, and in particular Goldsborough, I agree. [46] As the respondent pointed out, the use of comparable sales was discussed in the decision of Mayne Property Development Pty Ltd v Chief Executive, Department of Natural Resources,26 where the Land Appeal Court referred to the case of Brewarrana Pty Ltd v Commissioner of Highways, S.A. 27 which said that: “It is general valuation practice for sales characterised as comparable sales to be used as bases for the valuation of lands said to be similar. But allowances must always be made before such sales can be so used. No two parcels of land are identical in all respects: the sale price of any given piece of land is not necessarily the price at which it ought to have been sold, or the same thing as its true value. Before using any allegedly comparable sale, therefore, the valuer must consider whether, having regard to the circumstances (using that word in its broadest sense) appertaining to the parcel of land in question, and to the transaction of sale, there are sufficient similarities to the circumstances appertaining to the parcel of land in question, and to the transaction of sale, there are sufficient similarities to the circumstances appertaining to the subject land and to the notional sale presupposed by the test formulated in Spencer v The Commonwealth of Australia and in later cases to warrant a court’s reasoning from the sale price paid under the allegedly comparable sale, with or without other evidence, to a value for the subject land. Adjustments must, of course, be made every time reasoning of that kind is undertaken. For example, in relation to the land itself and the circumstances appertaining to it, it may be necessary to consider such matters as topography, location, size, shape, slope, view, land use (actual and potential), scope for, and difficulties of, development, services and amenities; and in relation to the transaction of sale, the valuer must weight such things as the character, business and relationships of the parties, their motives, the terms and conditions in their contract of sale, and any other special considerations that induced or may have induced them to conclude the contract at the selling price agreed, as well as the dates when the contract of sale and the transfer were concluded or effected. I do not 25 Respondent’s written submissions paras 26-32. 26 (1996-1997) 16 QLCR 709 at 719. 27 (1973) 32 LGRA 170 [179] – [180]. -- 10 of 14 -- 11 for a moment pretend that I have been exhaustive. What I am concerned to emphasise is that, as I understand the evidence, and according to the inferences that I feel I can safely draw from it, there is no hard and fast rule by the application of which a valuer may, whatever the circumstances, draw the line that clearly separates the sales that are comparable from those that are not. It is, in my view, all a matter of degree: some adjustment is always necessary; too much adjustment will render it unsafe to use a sale, subject to such a degree of adjustment, for the purpose of the reasoning process in the comparable sales method. Just where the line is to be drawn is, it seems to me, the very sort of question that is fit for the expert valuer to determine; the assessment of the risks of adjustment is peculiarly his sphere of skill.” [47] The opinion of the lay person in the assessment of the unimproved value of land was discussed in the decision of Nimmo v Department of Natural Resources and Mines28 where the Land Court said: “Assessment of the unimproved value of land is an enterprise considered to be within the province of a recognised area of expertise. Accordingly, in appeals such as these, a valuer’s evidence on matters of opinion relating to his field of expertise would ordinarily be preferred to differing opinions of a lay person. However, it is quite another thing to say that, because the valuation of land is the issue, the valuer’s evidence should automatically be preferred to that of a lay person. It may be that the valuer’s opinion is expressed in a manner or upon bases which are unable to be scrutinised, or otherwise lacks rational explanation. It may also be shown that in reaching his opinion the valuer has relied on information shown to be wrong or has failed to take into account relevant and material facts. Accordingly, it is clear, in my view, that the opinions of value expressed by Mr Van Hees are not immune from challenge by the appellant. That said, in the absence of any demonstrated error of approach or reasoning on the part of Mr Van Hees, his opinions on matters within his field of expertise ought to be preferred to the opinions of the appellant on the same matters.” [48] Save with respect to the findings that I have already made with respect to the Goldsborough sale, I accept the sales evidence of Mr Cotter. [49] There is one final aspect of this case which needs to be addressed, that being the question of carrying capacity. [50] At issue is whether there should be a finding that the carrying capacity of Clarke Hills is 1:20; 1:20.4 or 1:25. [51] To begin with, I am prepared to accept the truthfulness of Mr Duncombe as regards certain aspects of the country classification, they being those as amended by Mr Cotter following the inspections, which result in a carrying capacity of 1:20.4, which I believe should be rounded to 1:20.5. 29 However, that is far from the end of this question. 28 [2005] QLC 0028 at paragraphs [16] – [18]. 29 Consistent with Mr Cotter’s use of .5 for carrying capacity on his sale properties 1, 2 and 4. -- 11 of 14 -- 12 [52] As then Member Scott said in the case of Callcott v Chief Executive, Department of Natural Resources and Mines: 30 “… I should say that it is my view in a matter such as the present one that in considering an issue such as carrying capacity this Court should be less concerned with absolute numbers than with the use of carrying capacity as an expression of the class of country. Absolute numbers will vary according to such matters as the style of management, the type of enterprise being conducted (including whether it is breeding and growing and/or fattening), the age of turning off stock and a range of similar matters.” [53] I also note what Member Dr Divett said in the case of Micaesea Pty Ltd v Department of Natural Resources and Mines: 31 “[39] … I also note that the matter of carrying capacity of grazing lands was accepted, with some reservation, by the Land Appeal Court in Toolebuc Pastoral Holding – Australian Agricultural Company v The Crown (1979) 6 QLCR 120, where it said at 123: “Whilst actual numbers carried over a period of time are relevant when considering the ‘average season’ carrying capacity, such numbers are not necessarily the deciding factor. Care must be taken in considering stocking figures to have due regard to seasonal and economic conditions over the period as well as management practices and skills. The court strives to acquire a common yardstick throughout a district namely the number of stock which the hypothetical prudent grazier would reasonably carry on the holding concerned in an average season. Over the years, the ‘average season’ carrying capacity, especially in the case of leases comprising old developed country, has to a great degree, except in unusual or varying circumstances, become so well established and accepted as to be in the nature of a classification of country.” [40] The matter of whether “carrying capacity” should be used, rather than comparisons with sales of comparable properties, was also explored by the Land and Environment Court of New South Wales in Nap Nap Station Pty Ltd v Valuer-General (1989) 72 LGRA 275, where Stein J said at 282: “My above conclusions should not be construed as indicating that carrying capacity concepts have no place in the valuation of rural land. I accept that in suitable cases the carrying capacity or “productive capacity” can be of assistance, particularly as a cross checking tool. I accept Mr Kennett’s evidence that the concept may be a “handy check”. In circumstances where there are no sales of directly comparable properties the concept may be used as the primary approach. However, when comparables are available, as in this case, I do not believe that the approach should be used except as an aid to valuation. … 30 Unreported, Land Court of Queensland, 28 September 2001, AV00-620. 31 [2004] QLC 0079 at [39]-[41]. -- 12 of 14 -- 13 I find myself in agreement with remarks in a recent decision of Wiradjuri Regional Aboriginal Land Council v Southern Estates Pty Ltd (8 September 1989, unreported), where Hemmings J said: ‘Whilst an exercise based solely upon estimated carrying capacity is an acceptable approach to determine the value of improved grazing land, I have considerable reservations as to its reliability to deduce unimproved land value, or the value of improvements.’” [41] On the basis of that guidance, I agree with Mr Craig that the use of carrying capacities, land classifications, and beast area figures are really only a final checking procedure. The best method of valuation is by comparison with sales of similar properties.” [54] I have no doubt that Mr Duncombe adopts a management style for Clarke Hills consistent with his evidence of a carrying capacity of 1:25. That however is not necessary inconsistent with Mr Cotter’s evidence of 1:20.5, as the authorities above show. Perhaps the true position lies somewhere in between. At the end of the day, however, such difference between the parties as there is in relation to carrying capacity is of little moment, as for this valuation, comparable sales evidence is available. Carrying capacity is useful in this case as a check method only, at best. Determination [55] I am faced with the somewhat difficult task of working in the sale of Goldsbrough at Mr Cotter’s analysed rate of $36/ha and not his applied rate for that sale, whilst at the same time accepting Mr Cotter’s applied rate for his sales 1, 3 and 4. When this is done, Goldsborough sits out as being a low sale compared to other sales, but a sale which, nonetheless, for the reasons already given, I accept as a Spencer market sale. [56] It is clear from the evidence that, as at 1 October 2011, the market was in decline. The difficult thing to gauge, of course, is the extent of that decline. [57] Taking the sale evidence I have accepted into account, and doing the best I can on the evidence before me, I have decided to adopt a value of $41 per ha for Clarke Hills. [58] The lay reader may be confused by such a finding, wondering why I have not kept closer to the relatively comparable Goldsborough sale. The reason is that I must take all of the four sales I consider appropriate into account, and apply some form of balance between the higher sales and the Goldsborough sale in what was clearly enough a changing market. When viewed this way, a value of $41 per ha fits within Mr Cotter’s comparison schedule as set out in para [30] of these reasons, remembering of course to reduce the Goldsborough figure from $49 per ha to $36 per ha. [59] Given that Clarke Hills has an area of 50,763.799 ha, at $41 per ha this equates to the sum of $2,081,316, which I round to $2,100,000. -- 13 of 14 -- 14 [60] In my view, the value of $2,100,000 sits comfortably when considered alongside the carrying capacity evidence in this case, particularly when it is applied as a check measure only. In this regard, I note the assistance of Mr Prasad in providing the Court with various scenario check measure figures. 32 [61] Accordingly, the result will be that the appeal is allowed and the value of the land fixed in the sum of $2,100,000 as at 1 October 2011. Orders 1. The appeal is allowed. 2. The unimproved value of the subject property is fixed in the sum of Two Million, One Hundred Thousand Dollars ($2,100,000) as at 1 October 2011. PA SMITH MEMBER OF THE LAND COURT 32 T 1-58 line 15 – T 1-59 line 11. -- 14 of 14 --