Campbell v Chief Executive, Department of Natural Resources and Water [2009] QLC 146

LAND COURT OF QUEENSLAND CITATION: Campbell v Chief Executive, Department of Natural Resources and Water [2009] QLC 146 PARTIES: David M Campbell (appellant) v. Chief Executive, Department of Natural Resources and Water (respondent) FILE NO: AV2007/0206, AV2008/0439, AV2007/0202, AV2008/0440, AV2006/0796, AV2008/0442 DIVISION: Land Court of Queensland – General Division PROCEEDING: Appeal against annual valuation under the Valuation of Land Act 1944 DELIVERED ON: 25 September 2009 DELIVERED AT: Brisbane HEARD AT: Gladstone MEMBER: Mr BR O’Connor, Judicial Registrar ORDER: Appeals AV2007/0206, AV2008/0439, AV2007/0202, AV2008/0440, AV2006/0796 and AV2008/0442 are dismissed. CATCHWORDS: Valuation – unimproved value – water depletion claim – mining operation allegedly affecting water – aquifers feeding bores on subject land – whether reduction in value warranted Practice and procedure – exchange of evidence ordered prior to hearing – request to tender additional written evidence at hearing – discretion – request rejected Valuation of Land Act 1944 APPEARANCES: Mr P Brady, agent for the appellant Mr M DeLongville, Principal Legal Officer, Department of Environment and Resource Management for the respondent -- 1 of 6 -- 2 Background [1] The appellant, Mr David M Campbell, had some 13 appeals before the Land Court. They were situated either in the township of Mount Larcom or in its general surrounds. At the commencement of the hearing, the parties advised the Court that agreement had been reached on five of the appeals. The appellant had agreed to withdraw AV2007/0205 and AV2008/0443, AV2007/0203 and AV2008/0444 and the single appeal AV2007/0201. [2] At an early stage in proceedings, agreement was also reached on AV2007/0204 and AV2008/0441. [3] As a consequence, six appeals relating to three separate properties remain for determination. They are: 1. the “home block” (AV2007/0206, AV2008/0439) 2. the Bottletree Road block (AV2007/0202, AV2008/0440) 3. the Ambrose-Bracewell Road block (AV2006/0796, AV2008/0442) The home block [4] This property is described as Lot 95 DS303 Parish of Langmorn, County of Deas Thompson. It is an area of 64.99 ha and is located on the corner of Ambrose-Bracewell Road and Hut Creek Road about 7.5 km south-west of the township of Mount Larcom. [5] The northern section of the subject comprises brown soil softwood scrub merging to blue gum, Moreton bay ash and gum top box grey brown soil forest on the Ambrose- Bracewell Road frontage. The southern section of the property is poorer quality stony softwood scrub ridges. Improvements include two dwellings and associated outbuildings. Mr Brian Thomas Coe, valuer for the Chief Executive, indicated that an earlier inspection indicated the existence of two bores on the subject with one new and one abandoned. The land is zoned rural under the town plan for the Calliope Shire Council and the highest and best use of the property allowable under the zoning would be rural residential. The subject is in fact used for rural residential purposes. The Chief Executive’s valuation as at 1 October 2006 is $107,000 and also $107,000 for 1 October 2007. [6] Before proceeding further, it should be noted that in this matter the appellant, through his agent, sought to introduce extensive new evidence on the day of the hearing. Court orders had been made at an earlier stage that any written material on which the parties sought to rely should be exchanged at various times before the hearing. The respondent objected to this new material being tendered, principally on the basis that its valuer would not be in a position to properly comment on this proposed new sales evidence -- 2 of 6 -- 3 until further investigation and perhaps an inspection had been undertaken. After considering submissions at the hearing, the Court ruled that the new evidence should not be admitted. [7] Both parties agreed that, given the present use of the block, it did not qualify to be assessed as a primary production property with the concessions available under s.17 of the Valuation of Land Act 1944. Its highest and best use was agreed as rural residential. [8] Given the ruling on the admission of the appellant’s proposed new sales evidence, the Court was left solely with the sales evidence of Mr Coe. Some attack was made on the analysis of certain of Mr Coe’s sales, particularly the amount that should be deducted for clearing and other “dressing up” of the sale property. Mr Coe made the valid response in cross-examination from Mr Brady, agent for the appellant, that the sales were generally assessed as rural residential and not primary production and the purchasers would place less value on extensive, perhaps excessive, clearing of the property. Mr Coe stated that he thought it fair to say that Mr Brady’s techniques in timber treatment were more designed to establish pasture, regenerate scrub and make primary production as a business, whereas when he looked at these sales which were hobby farms. (T p.62) [9] It is not necessary to go into further detail in relation to Mr Coe’s evidence, other than to say that I am satisfied the sales evidence supports the value of $107,000 for both years he has placed on the subject, subject to one qualification. [10] This qualification relates to the water depletion issue – should the value of the property be reduced because of the affects of the East End mining operation on the water aquifers feeding bores on the subject property? The appellant claims that his property is within the relevant water depletion zone, that its water supply is being progressively impeded and that a 20% reduction in value should be made due to this factor. He cites the decision of Lucke v The Chief Executive, Department of Natural Resources and Mines1 where the President of the Land Court allegedly made a 20% reduction on their property within the water depletion zone. [11] Mr Coe was not able to confidently comment on this decision or whether the subject was within the water depletion area. At the Court hearing, in the rather unusual circumstances of this case, I allowed Mr Coe time to investigate this critical issue with the Chief Executive’s hydrologist, consider the matter and make, within a stipulated time, a short written submission to the Court. The appellant was, of course, to be provided with a copy and an opportunity to respond. 1 [2002] QLC 0011. -- 3 of 6 -- 4 [12] In essence, Mr Coe’s subsequent written report indicated:  Investigation of the relevant hydrological maps for the water depletion zone indicated that only a very small area of the subject (about 1 ha) was actually within the zone;  The 10% allowance in the Lucke case related to “primary production” properties within that zone; Mr Coe concluded that no separate allowance should be made for any water depletion factor. While it was not disputed that the subject may be suffering from water problems, some of Mr Coe’s sales were similarly affected. Further, as noted above, the subject was assessed as rural residential, not primary production, and the limited water supplies may be less of a consideration in this light. [13] Considering all the evidence, in particular the additional researched submission made by Mr Coe, which was a direct response to allegations made at the hearing, I conclude that the value of the Chief Executive should be confirmed. The appeals on the subject property are dismissed. The Bottletree Road block [14] The property is described as Lot 7 on MPH22993 Parish of Langmorn, County of Deas Thompson. It is situated at 13 Bottletree Terrace in the township of Mount Larcom. It is described by Mr Coe as a regularly shaped parcel below road level at its frontage with a moderate to steep slope (with cross fall) from the rear of the property to the road. A gully intersects the north-west corner of the subject below the dwelling. Two areas have been benched; one on the road frontage of about 2 to 3 metres and the other on the rear boundary of about 3 to 4 metres. Improvements include a lowset residence and garden shed. The land is zoned “Village” on the Calliope Shire Council plan and is used for residential purposes. The valuation contended for by the Chief Executive for both 2006 and 2007 is $40,000. [15] Mr Campbell, in evidence, referred to various disabilities of the site, including the need to incur a cost of some $10,000 to construct a pad suitable for a dwelling on the site. Apparently, there presently exists a small dwelling on the property but inappropriately located close to the road. [16] Mr Coe does not dispute the disabilities referred to by Mr Campbell but claims that he has properly allowed for them in his amount of $40,000. He stresses the size of the block is 4,000m² and cannot properly be compared with much smaller lots. His more comparable sales are in the vicinity of $56,000 from which he deducts $10,000 for the development of the necessary building pad and a further $6,000 for other disabilities. -- 4 of 6 -- 5 Mr Coe states that while he was prepared to adjust other valuations that were before the Court on other properties owned by Mr Campbell to achieve a settlement, he is quite firm in his belief that the $40,000 he places on the property should remain. [17] I am satisfied that Mr Coe has properly considered the problems raised by Mr Campbell and that the figure of $40,000 is soundly based. The sales evidence referred to by Mr Campbell relate to much smaller lots. The Ambrose-Bracewell Road block [18] This property is described as Lot 68 DS598 Parish of Langmorn, County of Deas Thompson. It is located on the corner of Mount Larcom-Bracewell Road and Ambrose- Bracewell Road, about 6 km south-west of the township of Mount Larcom. Its area is 1.907 ha. It is described by Mr Coe as an irregularly shaped parcel of land with an easy slope to the northern boundary of the Ambrose-Bracewell Road. It is located within the Queensland Cement and Lime water depletion zone. It was previously a school reserve which was disposed of as excess land in 1996. Improvements include some fencing and timber treatment. The owner has constructed a dam and cleared timber on the subject. The land is zoned “Rural” under the Calliope Shire Town Plan. The highest and best use of the property is considered to be rural residential. The site is currently vacant. Mr Coe values the subject as at 1 October 2004 at $18,500 and 1 October 2007 at $32,500. [19] The principal issue in this case relates to the property being in the water depletion zone. Mr Coe concedes this point but states that he was aware of it at the time of his valuation, that the property had access to a dam and tanks and that his sales relied on have similar problems to the subject. [20] There is a subject sale relied on to support the applied figure of Mr Coe. Mr Campbell alleges the purchaser in this transaction paid an inflated price but Mr Coe’s evidence is that it is supported by the other sales evidence tendered. Again, it is unnecessary to consider in further detail the sales evidence of Mr Coe. In the absence of contrary evidence tendered by the appellant I am satisfied that the figures applied to the subject properties at the relevant dates by Mr Coe are well supported. Accordingly the appeal on this property is dismissed. Conclusion [21] The appeals on AV2007/0206, AV2008/0439, AV2007/0202, AV2008/0440, AV2006/0796 and AV2008/0442 are dismissed. Costs [22] Unless an application for costs is made to the Court within 21 days of this decision, no award is made as to costs. -- 5 of 6 -- 6 Orders Appeals AV2007/0206, AV2008/0439, AV2007/0202, AV2008/0440, AV2006/0796 and AV2008/0442 are dismissed. BR O’CONNOR JUDICIAL REGISTRAR LAND COURT -- 6 of 6 --