Dredge & Anor v Valuer-General [2011] QLC 5

LAND COURT OF QUEENSLAND CITATION: Dredge & Anor v Valuer-General [2011] QLC 5 PARTIES: Carolyn A Dredge and Terrence Dredge (Appellants) v. Valuer-General (Respondent) FILE NO: VLA265-10 DIVISION: General Division PROCEEDING: Appeal against annual valuation under Valuation of Land Act 1944 which applies due to s.269 of the Land Valuation Act 2010 DELIVERED ON: 1 March 2011 DELIVERED AT: Brisbane HEARD AT: Toogoolawah HEARD ON: 9 February 2011 MEMBER: His Honour Mr WA Isdale ORDER/S: 1. The appeal is dismissed. 2. The valuation appealed against is affirmed. CATCHWORDS: Valuation of Land Act 1944, ss 33, 45(4) Uniform Civil Procedure Rules, r 426(1) and (2) Presumption of correctness – burden of proof – sales evidence – relativity – opinion of expert – duty to correct errors R. and M.M. Barnwell v Valuer-General (1990-91) 13 QLCR 13 G.E. Cominos & Co Pty Ltd v Chief Executive, Department of Lands (1996-1997) 16 QLCR 311 W.M. and T.J. Fischer v Valuer-General (1983) 9 QLCR 44 G. Franklin & Ors v Valuer-General (1978) 5 QLCR 181 Perpetual Trustee Company Limited v Department of Natural Resources, Mines and Water [2006] 27 QLCR 64 -- 1 of 7 -- 2 J.L. and I. Qualischefski v Valuer-General (1979) 6 QLCR 167 Thomson v Department of Natural Resources and Mines [2007] QLC 92 N.R. and P.G. Tow v Valuer-General (1978) 5 QLCR 378 APPEARANCES: Mr T Dredge appeared for the Appellants Mr J O’Rourke, Solicitor and Principal Legal Officer, Department of Environment and Resource Management, for the Respondent The appeal [1] The appellants’ property, 27.486 ha at 5042 D’Aguilar Highway, Winya, Kilcoy was valued by the Valuer-General at $325,000 as at 1 October 2009. In their Notice of Appeal, the appellants contend for a valuation of $225,000. [2] At the hearing, Mr Dredge submitted that the valuation should be in the range of $250,000 to $275,000. [3] The grounds of appeal are that the land is subject to frequent flooding in normal wet seasons, is in a flood plan and not suitable for subdivision. It is not able to be used sustainably for grazing in its own right. The Notice of Appeal sets out that significant earthworks and improvements have been made on the land for safety and environmental reasons and the relativity of the valuation with that of similar land in the locality is questioned. [4] Mr Dredge acted as the advocate for the appellants and gave evidence. He was the sole witness for the appellants. The appellants’ evidence [5] Mr Dredge had been provided with a copy of the valuation report of Registered Valuer Mr Colin Clark, who was to give evidence on behalf of the Valuer-General, and had some disagreement with it. He pointed out that residents in the area use services from further afield, not just from Kilcoy, and that there are five ramps on the land that are used by people and cattle in order to move around. When there is flooding, the cattle do not shelter near the house as a strong current restricts their access to that area. [6] When Mr Dredge took over the property, cattle would fall into billabongs when the banks collapsed in the dry seasons, which could be more hazardous to cattle than the wet. -- 2 of 7 -- 3 [7] A former railway line is on the property and the D’Aguilar Highway usually provides flood-free access, except in the January 2011 flood event. The highway has been raised several times in the last 25 years. [8] At the hearing, Mr Dredge expanded on the issue of the relativity of the valuation. He pointed out that the subject’s valuation increased by 47% as at 1 October 2009 while other properties which he identified had increases between 29.63% and 37.5%. [9] Mr Dredge is very familiar with the locality, having owned the subject land since 1976 when he was a stock inspector. Very experienced as a grazier, he runs a cattle finishing operation, buying coastal cattle from east of Stoney Creek where they tend to be mineral deficient and improving them for sale. [10] Mr Dredge stated that the average increase in the region for the current valuation was 40%. He tendered photographs of the property and copies of photos of previous flooding along with a copy of a Kilcoy Shire council map showing land subject to flooding. Taken from a local history book, a page showing some results of the 1955 and 1974 floods were also tendered. The cross-examination of Mr Dredge [11] In a focused cross-examination, Mr Dredge stated that he had not lost any stock due to flooding, but had done due to slumping of billabong banks in drought. He described the land as good grazing country, though not as good as scrub country. [12] Taken to the four sales used by Mr Clark in his report, Mr Dredge said that he was familiar with those properties. In his evidence-in-chief, Mr Dredge had tendered a letter from Mr Arthur Gray, the vendor in sale 4, which stated that the only flood damage he had experienced was to the immediate creek crossings except in a major flood when damage would extend bank to bank. The land had been in his family since 1946. [13] Mr Dredge also tendered a statement from Mr Kelvin Smith, the vendor in Mr Clark’s sale 1. Mr Smith wrote that in his time, having been on the property almost all of his life, he has not had to repair or replace fencing damaged by floods other than in the immediate creek crossings. The case for the Valuer-General [14] Mr Clark gave evidence on behalf of the Valuer-General. His report, as amended from the version originally provided to the appellant and the court, became exhibit 12. -- 3 of 7 -- 4 [15] Mr Clark points out in his report that the land is located within 1 km of the Kilcoy town centre with good access as it fronts the D’Aguilar Highway. [16] It consists mostly of alluvial flats and adjoins Kilcoy Creek. Irregularly shaped, the block has fertile alluvial clay soils that are well suited to growing and fattening cattle. There are unsightly commercial and industrial premises close to the best available house site. The property has electricity, telephone and town water. [17] Mr Clark has provided a valuation report supporting the Valuer-General’s value of $325,000. He has used the valuation method of direct comparison with sales. Although on more than one title and with part zoned Industrial, the land has, no doubt to the advantage of the appellants, been valued as one parcel of rural land with a home site entitlement on it. [18] Comparison with four sales has led Mr Clark to a rate per hectare of $11,824, which supports the $325,000 valuation. Limited sales evidence in the area has necessitated the use of older sales, adjusted to take account of changes in the market. [19] Mr Clark notes the amount of fill used on the home building site and is of the view that a site requiring less fill is available and that another design of house, on stumps, could be built on the existing site so that less fill would be required. [20] Mr Clark gave evidence that he inspected the property with Mr Dredge who told him that it flooded six times a year in a wet year. He did not see any evidence of silting or of scouring. [21] Sale 1 is a 6.361 ha block sold on 5 January 2009 for $330,000. Mr Clark has applied an unimproved value of $250,000, or $39,302 per hectare. It is about 6 km north of the subject and affected by flooding from Kilcoy Creek. Mr Smith’s statement, exhibit 4, is relevant to the flooding. The property has the benefit of a water licence but does not enjoy the ability to construct a house as of right. The owners would need to provide an expert’s report to the Council in relation to flood levels. [22] Sale 2 is a 47.91 ha block sold on 22 August 2009 for $525,000. With an applied unimproved value of $375,000 or $7,827 per hectare, it is about 14 km south-west of the subject. It is not affected by flooding and is relatively isolated, with steep slopes and a gravel access road. An all weather access track to the building site would need to be constructed. It is not affected by industrial or commercial developments nearby. -- 4 of 7 -- 5 [23] Sale 3, a 31.211 ha block, was sold for $470,000 on 25 June 2007. The applied unimproved value is $400,000 or $12,816 per hectare. It is 8 km north-east of the subject and on Sandy Creek, a similar sized catchment to Kilcoy Creek. Mr Clark’s evidence was that over 90% of this property is subject to flooding. It is a similar size to the subject with comparable grazing. A smaller proportion than the subject is susceptible to flooding and a forest ridge provides a superior stock refuge and building site compared to the subject. [24] This is an old sale and the valuer has applied his expertise to adjust for market conditions at the date of valuation. His exercise of judgement was not called into question in cross-examination so this aspect was not in dispute. [25] Sale 4, 59.486 ha located about 12 km north-east of the subject, sold for $530,000 on 23 August 2007. Again, an early sale in respect of which the valuer has made an adjustment, 10%, like sale 3, to account for market increase up to the date of valuation. This was not challenged by the appellant so the making of the allowance, and its size, was not in dispute. An applied value of $440,000, or $7,377 per hectare, was arrived at. [26] This sale is larger than the subject and about 12 km north-east of it. It has very little flood prone land but is further from services and amenities and is largely easy to moderately steep forest country. An all weather access track would need to be built to the house site and services extended. [27] Sale 4 is provided to show the value of forest country, inferior to the subject. [28] Mr Clark was questioned by Mr O’Rourke about the properties that the appellants point to as illustrating incorrect relativity with the subject land. In each case, Mr Clark distinguished features of the properties which he stated explained the different values. In two cases he stated that the Valuer-General’s values were too low. Duty of the valuer as an expert witness [29] It would not be lost on the appellants for one moment that the Valuer-General has valued their land as well as these other two properties and when confronted with what appears to be an inconsistency indicating that their valuation is wrong they hear instead that the other two valuations are wrong, while theirs is said to be correct. Equally, it will not be lost on them that the valuer is an officer representing the Valuer-General. A sceptical observer may well wonder how it can be said that the other two valuations are wrong, not that the appellants’ valuation is wrong. According to the appellants’ exhibit 2, the other valuations increased by, respectively, 36% and 31.9% while their property increased by 48.94%. -- 5 of 7 -- 6 [30] The valuer, an expert in a recognised field of expertise, is permitted to give evidence, not just of fact, but of his expert opinion. He has a duty to the court greater than the duty to his employer and is required to give the court his properly arrived at opinion, even where it may contradict that of his supervisors.1 [31] No doubt the Valuer-General will review these valuations in order to correct any error. The law [32] Section 33 of the Valuation of Land Act 1944 deems the valuation to be correct until the contrary is proved. [33] Section 45(4) limits the appellants to their grounds of appeal and places the burden of proof on them.2 [34] The court is not an investigating tribunal and must rely on the evidence placed before it. The onus placed on the appellants is not easy to discharge without evidence from a registered valuer.3 [35] The best test of value is to be found in sales of comparable properties in the open market as close as possible to the date of sale.4 [36] Whilst maintenance of the correct relativity between valuations is of considerable importance for rating valuations, this is not to be preferred to the exclusion of relevant (even if not ideal) sales evidence.5 In this case the valuer needed to make allowances for sales well before the valuation date. The fact of and amount of the allowances made were not disputed. [37] The Valuer-General should, if possible, obtain uniformity by correcting errors, rather than making an inaccurate assessment in order to have uniform error.6 Conclusion [38] Applying the law which binds this court, and in view of the expert opinion of the valuer who has based that opinion on sales evidence; I am unable to find any error in principle or error in fact so serious that the valuer’s opinion can be shown to be in error. 1 Uniform Civil Procedure Rules, rule 426(1) and (2). See also G.E. Cominos & Co Pty Ltd v Chief Executive, Department of Lands (1996-1997) 16 QLCR 311 at 336-339. The principle was applied by Member Jones, as he then was, in Perpetual Trustee Company Limited v Department of Natural Resources, Mines and Water [2006] 27 QLCR 64 at [26]. 2 See also G. Franklin & Ors v Valuer-General (1978) 5 QLCR 181 at 184-185. 3 J.L. and I. Qualischefski v Valuer-General (1979) 6 QLCR 167 at 172. 4 N.R. and P.G. Tow v Valuer-General (1978) 5 QLCR 378 at 381. 5 W.M. and T.J. Fischer v Valuer-General (1983) 9 QLCR 44 at 46. 6 R. and M.M. Barnwell v Valuer-General (1990-91) 13 QLCR 13. See also Thomson v Department of Natural Resources and Mines [2007] QLC 92 at [7], [8] and [12] where Member Scott applied decisions of the Land Appeal Court on relativity. -- 6 of 7 -- 7 [39] The evidence provided by the appellants is insufficient to displace the presumption of correctness of the Valuer-General’s valuation. [40] The appeal is dismissed and the valuation appealed against is affirmed. WA ISDALE MEMBER OF THE LAND COURT -- 7 of 7 --