Fawckner & Ors v Department of Natural Resources and Mines [2004] QLC 100

LAND COURT OF QUEENSLAND CITATION: Fawckner & Ors v Department of Natural Resources and Mines [2004] QLC 100 PARTIES: Robert Dale Fawckner and Ors (applicant) v. Chief Executive, Department of Natural Resources and Mines (respondent) FILE NOS: AV2002/0238, RV2002-0239, RV2002/0240; AV2002/0390, RV2003/0387, RV2002/0388, RV2002/0389; AV2002/0468, RV2002/0469, RV2002/0470, RV2002/0471; AV2002/0476, RV2002/0477, RV2002/0478; AV2002/0479; AV2002/0474, RV2002/0475; AV2002/0472, RV2002/0473; AV2002/0302, RV2002/0303, AV2002/0304; AV2002/0305; AV2002/0453; AV2002/0454, AV2002/0455; AV2002/0452, RV2002/0451; AV2002/0148, RV2002/0149. DIVISION: Land Court of Queensland PROCEEDING: Appeals against unimproved valuations made under Valuation of Land Act 1944, Shires of Winton, Longreach and Aramac DELIVERED ON: 18 November 2004 DELIVERED AT: Brisbane HEARD AT: Longreach MEMBER: Mr RE Wenck ORDERS: See Annexed Schedule CATCHWORDS: Statutory Valuations - Unimproved value - Valuation of Land Act 1944 Sales Evidence - Market trends - Full application of sales evidence warranted - Conservative approach achieved Relativity - Existing relativity disturbed by pre-Court reductions - Review warranted -- 1 of 72 -- 2 APPEARANCES: Mr RD Fawckher for the appellants Mr DJ Lang (instructed by Crown Law) for the respondent Background [1] These are various appeals by a group of landowners against unimproved valuations by the chief executive (the "Department") for rating and/or leasehold rent purposes, of lands in the Shires of Winton, Longreach and Aramac but in the same general locality, as at 1 October 2001. [2] The appeal properties comprised predominantly downs country, historically used for sheep grazing but in a market more recently influenced by demand from cattle graziers. [3] Having been dissatisfied with the decisions on their objections against the valuations, the owners, through their agent, Mr Alister Boyd, filed appeals against those decisions. For reasons associated with the cost of being represented by their agent and in obtaining professional valuation advice, the appellants had Mr Boyd prepare for them their written evidence and submissions. Mr Fawckner then appeared both on his own behalf and as agent/spokesperson for the remainder of the group of appellants. Some of the appellants were able to attend the hearings and gave evidence with the assistance of Mr Fawckner. [4] The evidence contained in the appellants' written statements was said to represent their personal opinions except where otherwise identified as the opinions of Mr Boyd. However, it became clear that much of the written material was generally based on the opinions of Mr Boyd. While it is accepted that the appellants respect the opinions and experience of Mr Boyd with regard to statutory valuation matters and have made themselves conversant with the written material, they had difficulty in cogent oral explanation of some of the contents of the statements and particularly the application of evidence of value. As a consequence, in the absence of oral testimony from Mr Boyd, the written material was generally of little assistance to the Court. [5] The thrust of the appellants' cases may be summarised as follows:  The 50% increase which had been applied by the Department to the previously existing valuations within the relevant Winton "district" was too high.  The Department had relied on "high" sales but had ignored sales which indicated either no increase or, at best, no more than a 20% increase over valuations made as at 1 October 1998.  The Department had been too aggressive in the application of the analyses of the sales to the sale properties then to valuations generally.  The valuations in this district were based on either unreliable sales or sales of properties which did not provide "like with like" comparisons. -- 2 of 72 -- 3  The Department had negated the beneficial effect of reductions which it had made to the 1998 valuations of most of the appeal properties.  The previously existing mapping of country types on the relevant property files had been altered with some "major omissions" of relevant data. [6] The valuations appealed against had been made by Mr Robert Russell Taylor, a registered valuer employed by the Department as a Senior Valuer, stationed at Longreach. [7] It was the Department's stance that the valuations appealed against were conservative in that the general increase applied in the mass valuation approach was well supported by a reasoned interpretation of the forces affecting the market. [8] Although the available sales evidence untainted by factors such as stock and plant inclusions, was limited in the general locality of the appeal properties, the Department did not consider that there was anything particularly unique about the downs country in this Winton locality which would set it aside from the trends reflected by the geographically wider market. [9] Mr Taylor accepted that there were some "low" sales in the district primarily in the earlier part of the period between the 1998 and 2001 dates of valuation. However there were also some "high" sales. The sales evidence adopted as a basis was considered to interpret the trend in the overall market which had experienced unprecedented sales activity without reliance being placed on either the "low" or the "high" sales. [10] It was submitted by Mr Lang, Counsel for the Department, that, for the appellants to be successful, they would need to demonstrate that in making the valuations the chief executive "had acted on a wrong principle or made a serious error of fact" citing the dicta of Gibbs J in Brisbane City Council v Valuer-General (Q) (1977-1978) 140 CLR 41 at 56, and would need to rebut the presumption of correctness of the valuations pursuant to s.33 of the Valuation of Land Act which provides: "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." [11] Mr Fawckner did not hold himself out as being legally trained or with valuation experience and accepted, at least in his oral evidence, that it could not be demonstrated that in adopting the mass valuation process or bases which it did, the Department had acted on a wrong principle. However he was confident that the Department through Mr Taylor had misinterpreted the market which was relevant to the particular locality in which the appeal properties were situated. He was convinced that errors had been made in the comparisons of the basic sale properties with the appeal properties. -- 3 of 72 -- 4 [12] Much of the evidence in Mr Fawckner's "Bonnie Downs" appeals was relevant to the overall group of appeals. While it will be seen to be repetitive and cumbersome to read, it is seen as advantageous for each of the appeals to be incorporated under the one citation with the "Bonnie Downs" appeals becoming the substantive matters for reference purposes. A summary of the relevant orders will then be scheduled as an annexure. [13] Appeal Reference/Owner AV2002/0238 - Mr RD Fawckner Property: The "Bonnie Downs" Aggregation Real Property Description: Lot 7 on C22863 and Lot 8 on C22871:GHPL23/16674, Parish of Lucella and Lot 3 on CM60:GHPL23/16547, Parish of Lucella. Area: 26,079.562 ha Local Government: Winton Shire Council Valuation Appealed Against: $560,000 (rounded from $21.50/ha) Owner's Estimate of Value: $335,000 (Notice of Appeal) - evidence led to a valuation of $404,000 (rounded from $15.50/ha). Situation and Access: 124 km north-east of Winton via the Winton/Hughenden Road and Olio/Muttaburra Road, 54 km bitumen, balance formed earth. Alternative access is via Aldingham Road, a distance of 100 km to the southern boundary, 10 km of bitumen, balance earth formed. Nature of Country [14] By Mr Taylor: Gently undulating open downs with areas of pebbly ridges, lightly to sparsely shaded. Well shaded with coolibah along Lucella Creek. Areas tending loose on Lot 3. [15] Mr Fawckner did not accept Mr Taylor's description as properly identifying the areas of claypan and pebbly ridges which he estimated as comprising about 3% of the property, or the full extent of the "loose" downs country. [16] Mr Fawckner contended that the property plan included with Mr Taylor's report was defective through its omissions. He produced copies of plans which had been compiled by other departmental valuers for previous Court procedures, as evidence of his contentions. [17] Mr Taylor's evidence was that the typed, computer generated mapping included within his report had been based on the older hand-written sketch plans on the files. However he accepted that some detail had been omitted. He said that technical difficulties associated -- 4 of 72 -- 5 with the space available on the mapping was one reason for those omissions. He was adamant that the historical file mapping had formed the basis of the comparison processes adopted in the valuation procedure and omissions on the broad mapping descriptions had no bearing on the valuation result. Nevertheless, Mr Taylor undertook to review the new computer generated file mapping to ensure that historical notes would not be lost through the computerised system. Mr Taylor pointed out that the mapping in his report had delineated areas along the Lucella Creek system which included the claypan influence. [18] Mr Fawckner tendered a series of photographs taken shortly before the hearing. Those photographs included examples of lack of shade, severe cracking in the loose downs areas, even after rainfall events, and the state of the pastures where, in some areas, Mitchell grass pasture was dead and there existed a preponderance of Flinders grass and summer herbage, weeds and "bull" Mitchell grass. [19] Mr Taylor's response was that the seasonal state of pastures and death of some Mitchell grass was generally common throughout the area at about the time of the hearing. However, a better season had continued into the period relevant to the date of valuation. Carrying Capacity [20] The historical departmental carrying capacity for the subject aggregation had been one sheep to 1.6 ha and that estimate had been adopted by Mr Taylor. [21] In the written evidence of Mr Fawckner the Department's historical estimate had been adopted by him for comparison and relativity purposes, although his oral evidence was that with the seasons which had been experienced over the last decade, that estimate was proving to be far too high on a normal season basis. [22] Mr Fawckner produced the "Bonnie Downs" rainfall records for the period 1993 to 2003. He said the long-term average rainfall was supposed to be about 400 mm. Over that period the average rainfall had been statistically achieved (about 392 mm). In the four year 1993-1996 period, the average had been 291 mm, then in 1997 through to 2000 the rainfall recorded was 416 mm, 473 mm, 409 mm and 861 mm, averaging 540 mm. Mr Fawckner drew attention to the fact that in 1999 195 mm of the 409 mm had been "spoiling" winter rain and it was not so much the annual rainfall that was important but when the rain actually fell. Since the excellent rainfall in 2000, the recorded falls had been 188 mm in 2001, 137 mm (the lowest on record for Longreach and Winton) in 2002 and 274 mm in 2003. [23] Coupled with the rainfall records Mr Fawckner provided the lambing percentages which were less than the accepted average 40% in five years, well above the average from 1997 through to 2000, but averaging about 46% over the 10-year period to 2003. However -- 5 of 72 -- 6 stock had been on agistment or with feed supplement during seven of the 10 years. Stock on hand as at December 2003 had been approximately 7,400 sheep (including 1,000 lambs), 267 cows and 34 bulls. Evidence of Value [24] Included with Mr Taylor's written evidence had been a report titled "Market Summary for the Revaluation of the Longreach District - Western Downs Country" - for the valuation as at 1 October 2001. This report, together with Mr Taylor's oral evidence, indicated that throughout the wider valuation district some 111 sales had occurred in the three-year period from 1 October 1998, the date of the previous valuation, to 1 October 2001, the date relevant to these appeals. That high volume of sales had been unprecedented in the district. In Mr Taylor's opinion it had resulted from a combination of factors including rising cattle prices, demand for properties suitable for expansion with the majority of purchasers being cattle graziers converting previous usage from wool growing; good seasons; low interest rates and a low Australian dollar. [25] Of the total sales, only 54 had been analysed by departmental valuers, after rejection of some which were inter-family or considered not to reflect "ideal market" information. Some sales had not been analysed due to a lack of departmental resources. However, consultation had taken place between departmental valuers and those in private practice and the public generally in considering the reliability of the overall sales evidence. [26] Throughout the district there had been resales of a number of properties the sales of which had been considered at the time of the 1998 valuation. Where the resales had occurred within three to five years up to 2001, increases in sale prices had varied from about 36% (where the inclusion of stock in the earlier sale may have skewed the result) up to about 106% (where the earlier sale had mortgage implications). Resales over a lesser one to three year period to the end of 1999 had varied from an increase of as low as 5.3% (with stock inclusions at both dates) to 26% in another case and as high as 100% in another. An example was recorded of one property having sold for $1,500,000 in 1994 then resold in 2002 for $6,000,000. [27] The sales evidence throughout the overall valuation district was interpreted by the departmental valuers as supporting increases above the previous valuation ranging from as low as 15% in, for example, the hard mulga country, to as high as 120% in the scrub country and 100% in the better downs and scrub country in parts of Blackall, Tambo and Barcaldine Shires. As I understood Mr Taylor's evidence, these higher increases were amended to 100% and 80% respectively subsequent to decisions of this Court in relation to some appeals in the Murweh Shire. -- 6 of 72 -- 7 [28] Mr Boyd had informed Mr Fawckner that quite apart from the reductions resulting from the Murweh Shire Land Court decisions, he had personally negotiated further significant reductions in the valuations of some individual properties in Blackall, Tambo and Barcaldine Shires. There was however no evidence as to the basis on which any individual reductions had been negotiated. [29] The open downs, mixed downs, forest and scrub country in the western part of the Longreach Valuation District, including parts of Aramac, Ilfracombe, Longreach, Barcoo and the entirety of Winton and Diamantina Shires received generally a 50% increase in the departmental valuations. [30] The mass valuation methodology adopted by the Department assumes that the previously existing relativities between valuations identified as being of a particular class of country in a particular locality or "sub-market area" (SMA) have been well established after a long valuation history and are generally correct. Where analyses of the sales evidence support an alteration to the general level of value within any SMA, the application of standard factorised increases or decreases as the case may be, should result in the previous relativity between valuations in those SMAs being maintained. However where incorrect relativities or anomalies are identified, the relevant valuations are given individual consideration and manually adjusted by the responsible valuer. [31] In the locality of the subject properties, within this particular group, the Department interpreted the market as warranting the standard 50% increase over the general level of value which had been applied in 1998. However a relatively small group of appellants including Mr Fawckner, had been successful in having their individual 1998 valuations reduced, prior to the appeals being heard by the Land Court. These reductions (of about 20%) had not been achieved on the basis of incorrect relativity or through any unrecognised disability, but because of the emergence of specific sales evidence which the departmental decision-makers accepted might be persuasive of the appellants' arguments had the appeals proceeded to a Court determination. The benefit of doubt, which it appears Mr Taylor, at least, had with regard to the veracity of those sales having reflected fair market value, was given to the appellants, but not to any landowner who had not appealed against the decision on objection. The consequence of that was that if the previously existing relativity between each valuation in the general locality had been reasonable, and the evidence before this Court including the oral evidence of Mr Fawckner, suggests that it was generally acceptable, then either the balance of the valuations in the area were then too high in comparison with the reduced valuations or vice versa. -- 7 of 72 -- 8 [32] Mr Fawckner said the other 1998 valuations were too high but, if the other owners had failed to exercise their rights of objection or appeal, that was a matter for them. [33] While being fair in accepting that the relativity between valuations of comparable local lands was generally reasonable, Mr Fawckner was of the opinion that the reinstated relativity had been achieved at the expense of the appellants against the 1998 valuations. This, it was argued, had occurred through higher than supportable increases being adopted in the first place then even higher increases having been applied to those 1998 valuations which had been reduced on the evidence available at that time. [34] It is understandable that landowners tend to concentrate, as does the Department in its mass valuation methodology, on the movement in valuations since the previous valuation. However, the question to be decided by the Court is not so much whether an increase in the market has been demonstrated but whether the valuation appealed against is fair and reasonable based on the relevant market evidence. It is also important that relativity between valuations utilised for the purpose of revenue gathering is reasonable and the rating burden equitably apportioned throughout the relevant local government areas. If the relativity which resulted from the individual reductions in the 1998 valuation was wrong then the Department, through Mr Taylor, was obliged to correct it. [35] While a number of sales were mentioned by Mr Taylor in his market summary report, as supporting the 50% increase applied in the western part of the Longreach District, those which were considered by him as providing the basis for the subject valuations were the sales of "Tandarra" analysed to show an increase of 54% above the 1998 valuation; "Luckham" (51%); "Roseberry Downs" (53%) and "Leebrook" (57%). [36] In Mr Taylor's opinion the sales of "Luckham" and "Tandarra" were the "most relevant" for comparison purposes in the "Bonnie Downs" matters while the sales of the properties "Roseberry Downs" and "Leebrook" which are located further to the east, in the central part of Aramac Shire, were considered to be less relevant through their location and, in the case of "Leebrook", its higher carrying capacity. [37] Mr Boyd had advised Mr Fawckner that the sales relied on by Mr Taylor and in particular "Luckham", "the only sale in Winton Shire" had reflected "virtually the same level" as had the 1996 sales in Winton Shire of the properties "Dahlia", "Kywong" and "Lerida". On that basis Mr Fawckner did not accept that, at least in Winton Shire, "the increase in demand caused a rapid increase in prices" as suggested by Mr Taylor in his discussion in the market report concerned with the overall valuation district. Mr Fawckner did not see the relevance in Mr Taylor's reference to the resales because he had placed no reliance on those particular resales. Criticism was also levelled at Mr Taylor's reference to sales in -- 8 of 72 -- 9 other geographic localities within the valuation district. On Mr Boyd's advice as to sales which had taken place in Aramac Shire he did not accept that there had been any "rapid rise" in sale prices in Aramac Shire since 1998. [38] Through the evidence prepared for Mr Fawckner it became his opinion that there was sufficient sales evidence to suggest that the increase applied within the locality of the appeal properties was excessive. Reference was made to the sales of "Boorameel", "Leichhardt Farms", "Padua" and "Merino Downs". [39] Mr Taylor had included each of those sales with the exception of "Leichhardt Farms" in the Market Summary schedules, confirming that the sales of "Boorameel" and "Padua" showed no increase and that "Merino Downs" showed an 18% increase above the levels applied to those properties in 1998. Each sale had been regarded as "low" and early in the valuation period. No analysis had been carried out of the "Leichhardt Farms" sale. Mr Fawckner's evidence was that he was one of the former owners of "Leichhardt Farms" and familiar with all aspects of its sale. He agreed that livestock was included in the sale price but considered that the property had sold for about the same price as "Audreystone", one of the Department's basic sales in the 1998 valuation. [40] As it happened the appellants did not rely on the sale of "Leichhardt Farms" as basic evidence of value due to the fact that it had not been analysed by a valuer but considered it to be an indication of another sale reflecting no increase in value. [41] Mr Taylor's market summary report had identified the sales which had not been relied on by the Department. Some reflected analysed increases above the 1998 valuation, ranging from 117% to 165%, while there were others reflecting less than the applied 50% increase, ranging from an indicated "nil" unimproved value in one case through to 18% and 43% in others. [42] Mr Fawckner noted that in order to achieve a 50% increase the Department had found it necessary to apply the near full unimproved analyses of the sales, 95.6% in the case of "Leebrook", 98.9% ("Roseberry Downs"), 97.7% ("Tandarra") and 99.5% ("Luckham"). Reference was made to comments of this Court in O'Brien v Department of Natural Resources and Mines (2003) QLC 0047 as to the caution which needs to be exercised in the application of sales evidence when sale properties are highly improved. [43] Mr Fawckner was not in a position to effectively criticise the actual result of the departmental analyses of the sales upon which reliance had been placed. He accepted the advice of Mr Boyd that it would have been more appropriate for the Department to have applied the sales more conservatively. An application of about 90% of the analysed unimproved value was seen to be more the "norm". -- 9 of 72 -- 10 [44] It should be said that the circumstances in the O'Brien matter referred to by Mr Fawckner on the advice of Mr Boyd, are capable of being distinguished on the facts. The sales involved in that matter provided the only evidence submitted by the Department in the identification of the market "trend". In this case Mr Taylor has given wide-ranging evidence as to the overall market, the wide variance indicated by the sales, but importantly his researched conclusions as to the forces influencing a distinctly heated market. The lower sales, whilst within the period leading up to the date of valuation, were generally in the earlier part of that period. However there was strong market evidence to suggest that higher levels of unimproved value were being achieved closer to the relevant date. There was also some evidence that the market had continued to escalate subsequent to that relevant date (eg a resale of "Luckham"). [45] Mr Taylor did not rely on the subsequent sale of "Luckham" as providing evidence of value at the date of valuation. Sales at a date subsequent to the date of valuation and made under differing market conditions would not be regarded as comparable and useless in the determination of value at the relevant date. However, as Williams J said in Daandine Pastoral Co Pty Ltd v Commissioner of Land Tax (1943) 7 The Valuer 299 at 304: "Values must be calculated in the light of circumstances which existed on the material date ... but subsequent events can be taken into account in order to determine the proper weight to attach to such circumstances ... The whole tendency of the courts is to admit evidence of any events prior to the date of trial which throw any real light on the issues." [46] Despite Mr Boyd's assertions through Mr Fawckner as to the manner in which the Winton market should have been interpreted, the facts are that the overall market in the wider district was strong with an unprecedented volume of sales. According to Mr Taylor there were no sales in the Winton Shire which indicated analysed unimproved values showing an increase of less than 50% over the previous level of unimproved value and then for widely varying quality of country. If, on sound reasoning, Mr Taylor decided not to rely on the sales showing higher levels of value but was professionally confident that the one Winton Shire sale of country generally comparable to the appeal properties showing an increase of 51% ("Luckham") afforded a conservative approach and was supported by the overall body of evidence elsewhere in the general locality then he was entitled to apply that analysis in full. He would not have been acting professionally had he relied simply on the improved rate per ha as shown by the various sales as had the appellants through Mr Boyd, or ignored all but the sales at levels of value demonstrably below market expectations. He would not have been acting with due caution in a somewhat volatile -- 10 of 72 -- 11 market had he based his valuation for revenue-gathering purposes on a full application of the sales at the upper level of market expectations. It seems to me that Mr Taylor was basing his professional opinion on the overall facts and not prophecies and, as Sherman J said in Executors of the Will of Panagiotis Samios Deceased v The Commissioner of Taxation (1972) 22 The Valuer 324 at 328 - "Where facts are available they are to be preferred to prophecies." [47] In my view the application of the full or near full level of value shown by analyses of the sales of "Luckham", "Tandarra", "Roseberry Downs" and "Leebrook" to those individual properties was consistent with a conservative approach which followed sound valuation practice for revenue-gathering valuations in light of the overall market evidence. [48] The remaining issue concerns whether the relevant sales which support the level of value applied to the individual sale properties also support the level of value applied to the "Bonnie Downs" lands and the other appeal properties. "Luckham" [49] "Luckham", containing 10,443.7 ha was sold on 13 November 2000 nearly one year prior to the date of sale at a contract price of $750,000. The sale was analysed by the Department to show an unimproved value of $231,000. A valuation of $230,000 ($22.02/ha) was applied. [50] Mr Taylor's description of the "Luckham" land was as follows: "Open to moderately shaded downs with Whitewood and Vinetree timber. Small areas creek channels run from the east to the west in the northern end of the property." [51] There was a suggestion in the evidence prepared for the appellants that this description does not indicate the presence of the loose or ashy downs or pebbly ridges existing to varying degrees on most of the appeal properties. The suggestion relies however on a broad description and not on Mr Taylor's evidence as to the comparability of "Luckham" with the various appeal properties. [52] In Mr Taylor's opinion, this sale provided the best comparison with "Bonnie Downs" of the four sales relied on. "It is similar to the subject in location, access and country type. It is smaller in size and consequently has a value of $22 per hectare applied to it in comparison with $21.50 applied to the subject." The historical carrying capacity as estimated by the Department and adopted by Mr Taylor is one sheep to 1.6 ha, similar to "Bonnie Downs" and many of the appeal properties. [53] Mr Fawckner does not accept that "Bonnie Downs" could be described as having access similar to "Luckham", as stated by Mr Taylor, when "Luckham" is "only one property -- 11 of 72 -- 12 removed from the bitumen road to Winton, about half the distance." More will be said of that aspect later. [54] Mr Fawckner stated that he had been informed by the vendor of the "Luckham" property that the purchaser was "looking for grass at the time and that was the primary reason for his purchase. He was so anxious to feed his stock that he actually moved about 12 decks of cattle onto the property before delivery." Mr Fawckner commented, "That could be the reason why he held the property for such a short time, as he owned no other land in the Winton Shire and he has since left the district." In the first statement of evidence attributed to Mr Fawckner "Luckham" was described as being well below a living area and not "representative of a standard property in the Winton district to gauge an accurate assessment of value ... There must have been a special reason for his purchase of such a block for such a short period of time or maybe it was uneconomical to run a property of half a living area." No mention was made of the date or details of the resale "after such a short time". [55] It is seen as relevant that in the appeals by Mr Fawckner against the rental valuations of the two leases making up the aggregated holding, the "Luckham" sale was applied near directly to the "Bonnie Downs" lease of 16,241.654 ha and to the "Corunna" lease of 9,837.908 ha. As stated earlier Mr Taylor had allowed a small discount to the valuation of the aggregated holding, in comparison with the "Luckham" sale, for reasons associated with the larger size of the total aggregation. [56] If it was a fact that "Luckham" was well grassed at the time of purchase and that was an attractive feature to the purchaser, it does not prove that he paid a premium for the land over and above its fair market value. The overall district, on Mr Fawckner's rainfall records, had been enjoying an excellent season at the time of the sale. It is also observed that Mr Boyd had informed Mr Fawckner that, on an improved basis, "Luckham" had sold at "virtually the same level as the 1996 Winton sales". [57] The sale when considered in light of the overall market, provides persuasive evidence as to the fair market value of "Luckham" nearly 12 months prior to the date of valuation. I accept that, subject to considerations relevant to location and access, the "Luckham" sale provides evidence also as to the value of the component lease areas of the "Bonnie Downs" aggregation and various other appeal properties. "Tandarra" [58] "Tandarra" comprises an aggregation containing 21,238 ha (including the 'Merriwin' block) and was sold on 30 January 2001 for $1,600,000. The sale was analysed by the -- 12 of 72 -- 13 Department to show an unimproved value of $590,693. A valuation of $577,500 ($27.19/ha) was applied. [59] Mr Taylor's description of the overall aggregation was as follows: "10,500 ha better downs, with moderate to light shade throughout. Soils are firm to ashy. 10,738 ha lighter more open downs with large shadeless areas and looser patches." [60] The carrying capacity was estimated by the Department as being one sheep to 1.7 ha overall. Mr Taylor's evidence was that the "Merriwin" block had originally been separately assessed as having a carrying capacity of one sheep to 1.8 ha and the original "Tandarra" block one sheep to 1.6 ha. When the two blocks became amalgamated an overall carrying capacity of one sheep to 1.7 ha had been adopted. [61] As is relevant to the "Bonnie Downs" appeal, Mr Taylor described the "Tandarra" aggregation as being "superior to the subject in location and access, inferior in country type and carrying capacity." The sale has bitumen strip road frontage and is 2 km (approximately) from the Longreach-Winton Road (Landsborough Highway). In his oral evidence he agreed that the location was significantly superior to "Bonnie Downs" but suggested that if "Tandarra" was hypothetically located next to "Bonnie Downs" it would be of lesser value due to inferior country overall. In his opinion the "Tandarra" part of the aggregation excluding "Merriwin" would be generally comparable to "Bonnie Downs" but agreed that it contained better sheep breeding country with areas of superior shade. However, the "Merriwin" block was considered to be inferior. [62] Mr Fawckner was critical of the Department's estimate of the carrying capacity of "Tandarra" being inferior to that of "Bonnie Downs". While Mr Taylor's inspection of "Tandarra" would have been more comprehensive than that of Mr Fawckner, there was a suggestion that Mr Taylor's broad description of the "Tandarra" country in amalgamation was less detailed and less favourable than past descriptions by other departmental valuers. There was no suggestion however that Mr Taylor's evidence as to the historical carrying capacity estimates for the individual blocks making up the new combined aggregation was incorrect. [63] On the evidence as it emerged, I have not been convinced by Mr Taylor that the aggregation of the "Tandarra" country, in one holding, should be regarded as inferior to the overall "Bonnie Downs" aggregation all other market considerations being equal. It may be that in isolation the "Merriwin" block would realistically be regarded as inferior but it seems that at least the well-shaded sections of the original "Tandarra" block would be superior to the "Bonnie Downs" aggregation overall. I gained the impression that, -- 13 of 72 -- 14 rather than ignoring any file notes as to the description of the individual blocks of the "Tandarra" aggregation, Mr Taylor may have been overly influenced by considerations of the historical estimates of carrying capacity for the separate blocks in isolation rather than the potential of the aggregation as a whole. [64] While there is some relevance in the arguments of Mr Fawckner as to the comparability of the "Tandarra" country, the more obvious difficulty in comparing "Tandarra" with "Bonnie Downs" or other properties in that immediate locality, relates to the significantly superior location of "Tandarra" relative to Longreach, access and amenities. As a valuation consideration the weighting which should be given to this factor would be a contentious issue, if "Tandarra" provided the only evidence of value. However that difficulty is overcome when the market evidence provided by the "Tandarra" sale is compared with the market evidence provided by the "Luckham" sale. Regardless of differing opinions as to the comparability of carrying capacity potential of these two properties, the relativity of applied values as at 1998 and maintained as at 2001, with "Tandarra" valued at 24.2% higher than "Luckham", has been well supported by the factual sales evidence. [65] Clearly in market value terms, "Tandarra" is superior to "Luckham", "Bonnie Downs" and other appeal properties. However the degree of superiority as assessed by the Department has been supported by factual evidence. For that reason, while the sale of "Tandarra" would be difficult to compare in isolation, the sale has relevance in the overall matrix of market evidence from one geographic locality to another, within generally similar land classifications. "Roseberry Downs" [66] "Roseberry Downs" contains an area of 11,732 ha and was sold on 6 June 2000 for $760,000. The sale was analysed by the Department to show an unimproved value of $389,000. A valuation of $385,000 ($32.82/ha) was applied. [67] Mr Taylor's description of the land was as follows: "4,000 ha flooded channels of the Thompson River. 7,732 ha of open downs with areas of scattered Whitewood and Vinetree shade. Includes small area of creek channels running from the middle of the northern boundary to the Thompson River." [68] The carrying capacity as estimated by the Department was one sheep to 1.6 ha overall. [69] Mr Taylor described "Roseberry Downs" as superior to "Bonnie Downs" in location and country type and although further from "Bonnie Downs" than either "Luckham" or "Tandarra", the sale "supported the 50% increase applied throughout the majority of the central west downs country for the 2001 revaluation." -- 14 of 72 -- 15 [70] Mr Fawckner suggested that Mr Taylor's description was not consistent with information given to him by Mr Boyd that "in excess of 30%" had flooded river channels and in excess of 12% comprised flooded downs. He stated that although he did not himself "complete a thorough inspection" "Roseberry Downs" "contains nearly 50% of flooded channels and flooded downs certainly dissimilar to any lands before this Court". He had seen sufficient of the property "to realise the downs country not affected by the flooding was far superior to the downs country in Winton Shire and more comparable to country in Aramac Shire with historical carrying capacity of one sheep to 1.4 ha. Mr Fawckner found it difficult to come to terms with the Department's estimate of carrying capacity being one sheep to 1.6 ha but accepted that the flooded country "may lessen its carrying capability due to those areas being destocked during the summer season". [71] As with the sale of "Tandarra", while "Roseberry Downs" clearly possesses superior unimproved value to both "Luckham" and "Bonnie Downs" and, as an individual sale, would be difficult to compare with either, the degree of superiority over "Luckham" as assessed by the Department in the 1998 valuation and then maintained in 2001 has been supported by the factual evidence. It follows that the 2001 valuation of "Bonnie Downs" subject of this appeal has been shown by the sale of "Roseberry Downs" and the matrix of basic sales adopted by Mr Taylor to be supported from both the relativity and market perspectives. "Leebrook" [72] "Leebrook" contains an area of 7,727 ha and was sold on 30 April 2001 for $725,000. The sale was analysed by the Department to show an unimproved value of $298,000. A valuation of $285,000 ($36.88/ha) was applied. [73] Mr Taylor's description of the land was as follows: "7,729 ha downs with scattered Whitewood and Vinetree shade. Includes about 1,225 ha of creek channels running north to south through the property." [74] The carrying capacity as estimated by the Department and adopted by Mr Taylor is one sheep to 1.4 ha overall. [75] Mr Taylor described "Leebrook" as being superior to "Bonnie Downs" in carrying capacity, location and country type and, being in the same general locality as "Roseberry Downs" but further removed from "Bonnie Downs" than either "Luckham" or "Tandarra". However once again, the sale supported "the 50% increase applied throughout the majority of the central west downs country for the 2001 revaluation". -- 15 of 72 -- 16 [76] Again Mr Fawckner, while agreeing with the Department's estimate of carrying capacity for "Leebrook" was critical of the use of this sale because of its location and superiority generally. [77] It is accepted that there would be difficulty in weighting the superiority of "Leebrook" as an individual isolated sale, against "Bonnie Downs" or other relevant appeal properties. However the sale supports the increase applied above the 1998 valuation of "Leebrook" and the previously existing relativities between the valuations of each of the sale properties. Conclusions [78] There is sufficient evidence provided in these appeals to accept that any reasonable interpretation of the overall market would result in a conclusion that the general level of unimproved value as had been initially applied to the central western downs country as at 1 October 1998 had increased significantly in the period to 1 October 2001 and beyond. [79] Despite an assertion that sales within the 1998 to 2001 period had not shown any real increase, at least in terms of improved market value, the appellants in this group of appeals were prepared to accept that values had increased but only above the level to which some 1998 valuations had been reduced by the Department. In broad terms that would suggest that the 1998 valuations originally issued by the Department and before the reductions to some, remained relatively static. If an overly selective analysis of the market was to be based on the "low" sales, or on improved values alone, that conclusion was possibly arguable but, in my view, would result in a pessimistic misinterpretation of the forces affecting the market in the period leading up to the date of valuation. [80] Conversely if an overly selective analysis of the market was to be based on the "high" sales an optimistic interpretation of the market might have resulted. That is a result which should not have been ignored had the purpose of the valuations under review been for other than revenue-gathering purposes. As Dixon J said in Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Limited (1947) CLR 358 at 373-374: "There is some difference of purpose in valuing property for revenue cases and in compensation cases. In the second the purpose is to ensure that the person to be compensated is given a full money equivalent of his loss, while in the first it is to ascertain what money value is plainly contained in the asset so as to afford a proper measure of liability to tax. While this difference cannot change the test of value, it is not without effect upon a court's attitude in the application of the test. In a case of compensation doubts are resolved in favour of a more liberal estimate, in a revenue case, of a more conservative estimate." -- 16 of 72 -- 17 [81] In these cases I am satisfied that not only had Mr Taylor taken the middle of the road or a "conservative" approach, but in doing so was entitled to apply fully the analyses of the selected sales which had taken place somewhat earlier than the actual date of valuation. There is no principle of valuation which supports the application of any particular or "norm" percentage of a sale analysis to the valuation of the sale property. There are clearly market circumstances or circumstances surrounding a particular sale where a "cautious" application may be warranted for the purposes of a statutory valuation. However in the subject circumstances, that which was described as "aggressive" applications of the sales analyses, in fact is accepted as a reasonable interpretation of the overall market for the purposes of a statutory valuation. [82] From a relativity perspective, the selected sales also supported the assumption that the relativity between the valuations applied at least to the sale properties as at 1 October 1998 was reasonable. The level of value which had been applied to those sale properties in 1998, as I understood the evidence, had been a rewrite of an earlier (1996) valuation, at least in Winton Shire. Clearly if some valuations had been reduced from that level and not on relativity grounds, then the previously existing (1998) overall relativity had been disturbed. If Mr Taylor's professional opinion was that the resultant relativity was then incorrect as at 1 October 2001, he was obliged to correct it. He did that by increasing those valuations which were considered to be out of relativity by a factor greater than that generally applied elsewhere. He did not restore the previously existing relativity precisely but, by manual attention, "fine-tuned" the valuations of some properties, including that of "Bonnie Downs". [83] In my view however a difficulty has arisen not so much with the adjusted valuation of "Bonnie Downs" but with the question of relativity generally for country being compared with the "most comparable" sale of "Luckham". Mr Fawckner for himself and on behalf of the other appellants in this group argued that it is incorrect and misleading to describe the "location and access" of "Luckham" as being similar to that of "Bonnie Downs" or any other of the appeal properties. "Luckham" is described by Mr Fawckner as being only one block or about 10 km off the bitumen road to Winton, which is then about another 55 km distant. "Bonnie Downs", as an example, is 65 km by earth road further than "Luckham" from Winton. While I can accept the geographic locality of both properties as being broadly similar, and that even 10 km of earth road may well be impassable in wet weather, access to the immediate vicinity of "Bonnie Downs" is clearly inferior to that of "Luckham". -- 17 of 72 -- 18 [84] Mr Taylor's evidence as I understood it, was that historically, market values in Winton Shire for comparable downs country have been identified as increasing with distance from Winton towards the east. He points to the sales in Aramac Shire as supporting that general market trend and the need for values to be adjusted gradually to recognise that type of market trend, particularly when every property is required to be valued for statutory purposes. [85] The difficulty involved in application of cogent weighting factors in achieving market- related relativity from one "locality" to another is understood. Nevertheless, while there may be validity in Mr Taylor's opinion that values do increase from west to east from the Winton locality to, for example, the Aramac locality, and some weighting factor for that trend should apply, there can be no validity in not accepting that inferior access is then a negative factor which must be considered in that weighting process. [86] In the end result in the absence of professional evidence to the contrary, I am able to accept that there may be market factors which, when weighted against inferior access, would tend to allow the unimproved value shown by the "Luckham" sale to be applied near directly to the individual smaller blocks in, for example the "Bonnie Downs" aggregation, then some discount factor applied for the larger size of that aggregation, in comparison with the smaller "Luckham". That was Mr Taylor's approach and the overall evidence does not lead me to accept that either the individual "Bonnie Downs" blocks or the aggregation have been over valued in comparison with "Luckham". [87] As will be discussed in other relevant appeals, if the valuation of "Bonnie Downs" as fine-tuned by Mr Taylor is adopted, some further fine-tuning has been found to be necessary in relation to other appeal blocks, in direct comparison then with the valuation of "Bonnie Downs", for relativity purposes. [88] Finally much of the evidence of a photographic nature as to the conditions of pastures and the effects of severe drought over a period approaching three years from the date of valuation is obviously a concern of magnitude to landowners in this general locality. The overall nature of the country has however not altered and no relief can be provided through the valuation process unless deleterious effect of a sustained or permanent nature has resulted from adverse seasonal conditions and capable then of being identified in the relevant market evidence. The seasonal conditions which existed at the date of valuation are otherwise relevant in these matters. Finding [89] I have concluded that the valuation appealed against is supported by the overall evidence of value. Further I am able to accept that while the increase applied over and above the -- 18 of 72 -- 19 1998 valuation exceeds the factor generally applied by the Department in the central western downs area, that action was warranted to correct a relativity anomaly. Order The appeal is dismissed and the unimproved valuation made by the chief executive as at 1 October 2001 in the amount of Five Hundred and Sixty Thousand Dollars ($560,000) affirmed. -- 19 of 72 -- 20 [90] Appeal Reference/Owner: RV2002/0239 - Mr RD Fawckner Property: "Corunna" part of "Bonnie Downs" - Valuation for Leasehold Rent Purposes Real Property Description: Lot 3 CM60:GHPL23/16547, Parish of Lucella Area: 9,837.908 ha Valuation Appealed Against: $215,000 (rounded from $21.90/ha) Owner's Estimate of Value: $125,000 (Notice of Appeal) - evidence led to a valuation of $152,500 (rounded from $15.50/ha). Nature of Country [91] By Mr Taylor: Gently undulating open downs with areas of pebbly ridges, lightly to sparsely shaded, well shaded with coolibah along Lucella Creek, areas tending loose. [92] The earlier comments attributed to Mr Fawckner as to Mr Taylor's property plan omitting certain details of inferior country are relevant as is Mr Taylor's explanation. Carrying Capacity [93] The historical departmental estimate of carrying capacity is one sheep to 1.6 ha and Mr Fawckner's earlier comments are relevant here also. Evidence of Value [94] Mr Taylor relied on the same sales evidence as was relevant to the overall aggregation. "Luckham" was the best comparison in his opinion being of similar country and in this case about the same size. [95] Mr Fawckner's criticism of the sales evidence as was relevant to the aggregation remained with regard to this valuation. He drew attention to the fact that Mr Taylor had made some slight adjustment in comparison with the value applied to "Luckham" ($21.90/ha compared to $22 "Luckham") but in his view that was insufficient. Conclusions and Finding [96] For reasons discussed in the appeal against the valuation of the "Bonnie Downs" aggregation, I have concluded that despite the inferior location and access of this block in comparison with the sale property "Luckham", the valuation of the subject land has not been proved wrong. Order The appeal is dismissed and the unimproved valuation made by the chief executive as at 1 October 2001 in the amount of Two Hundred and Fifteen Thousand Dollars ($215,000) affirmed. -- 20 of 72 -- 21 [97] Appeal Reference/Owner: RV2002/0240 - Mr RD Fawckner Property: Part of "Bonnie Downs" - Valuation for Leasehold Rent Purposes Real Property Description: Lot 7 on C22863 and Lot 8 on C22871:GHPL23/16674, Parish of Lucella. Area: 16,241.654 ha Valuation Appealed Against: $355,000 (rounded from $21.90/ha) Owner's Estimate of Value: $210,000 (Notice of Appeal) - evidence led to a valuation of $250,000 (rounded from $15.40/ha). Nature of Country [98] Mr Taylor's individual report on this block which is the "Bonnie Downs" home block did not include a written description. However in his oral evidence relevant to the overall aggregation he had agreed that the sketch plan relevant to this part of the aggregation had omitted some notations included on the file plan for the reasons explained. The overall aggregation was described as set out in appeal AV2002/0238 and the "Corunna" block was described as set out in the previous appeal RV2002/0239. [99] The Department's estimate of carrying capacity is equivalent to that of the overall aggregation and the "Corunna" block separately, as one sheep to 1.6 ha. Evidence of Value [100] Mr Taylor relied on the same sales evidence as was relevant to the overall aggregation. "Luckham" was the best comparison in his opinion. His valuation was at the same rate overall per ha as had been applied to the smaller "Corunna" block. [101] Mr Fawckner suggested that this block should be valued marginally less than the valuation suggested for "Corunna" taking into account "its larger size and the pebbly and loose area". It is observed that the suggested valuation of $15.40/ha is also marginally less than the $15.50/ha suggested for the overall aggregation of 26,079 ha. Conclusion and Finding [102] While Mr Taylor saw it as reasonable to make a size allowance for the difference between "Luckham" (10,444 ha) and the "Bonnie Downs" aggregation (26,079 ha), I have not been persuaded despite the difference between the size of this "Bonnie Downs" home block (16,241 ha) and "Corunna" (9,837 ha) that this block is less valuable on a rate per ha overall. The Court is aware that in appeals AV96-48 and AV96-49 in relation to valuations as at January 1995, agreement had been reach between Mr Fawckner and the Department that both blocks should be valued at the same rate per ha overall . I have -- 21 of 72 -- 22 decided that the valuation of "Corunna" at $21.90/ha is supported and the same conclusion will result for this block. Order The appeal is dismissed and the unimproved valuation made by the chief executive as at 1 October 2001 in the amount of Three Hundred and Fifty-five Thousand Dollars ($355,000) affirmed. -- 22 of 72 -- 23 [103] Appeal Reference/Owner: AV2002/0390 - Malcolm S Robertson Property: "Orielton" Real Property Description: Lot 3 on CM61:GHPL23/16413; Lot 5 CM61:GH PL23/16412; Lot 4 CM62:GHPL23/16414 and Lot 1 PER200309:PO23/200309, Parish of Inverness. Area: 34,113.135 ha Local Government: Winton Shire Council Valuation Appealed Against: $790,000 - evidence was led by Mr Taylor to a valuation of $750,000 (rounded from $22/ha) Owner's Estimate of Value: $540,000 (Notice of Appeal) - evidence was led to a valuation of $477,580 ($14/ha). Situation and Access: 152 km north-east of Winton and 188 km north-west of Longreach. Access from Winton is via the Winton- Hughenden Road then along the Olio-Muttaburra Road on 58 km of bitumen the balance being formed earth. There is an alternative route of 133 km via Aldingham Road on 10 km bitumen then formed earth. Nature of Country [104] By Mr Taylor (as amended in the written report): 15,573 ha (46%) better downs, lightly shaded with Whitewood and Vinetree, generally fair soils with a good body of grass. 17,010 ha (50%) lighter downs with looser and ashier soils, generally with lesser shade. 1,530 ha (4%) channels of Culloden and other creeks throughout the property. [105] In the statement prepared for the appellant by Mr Boyd, for both the aggregated holding and the valuations of the individual leasehold blocks for rental purposes, it was suggested that the Department's historical description of the country indicated that most of the property comprised open to very open lightly to very sparsely shaded downs tending loose soil. [106] Mr Taylor had personally inspected the property. Mr Peter M Robertson attended the hearing and gave evidence on behalf of the appellant. He did not quibble with Mr Taylor's description. However he drew attention to infestation of Prickly Acacia in the northern sector encroaching from the neighbouring property. He also raised the issue of the difficulty in providing water facilities and the need for numerous earth tanks in the loose country and the lack of sub-artesian water. -- 23 of 72 -- 24 Carrying Capacity [107] The Department's historical estimate of carrying capacity had been one sheep to 1.6 ha. However, as a result of Mr Taylor's inspection he decided that the historical estimate should be amended to one sheep to 1.7 ha. [108] Mr Robertson expressed the opinion that historical estimates of carrying capacity have proved to be too optimistic and Mr Taylor's amended estimate remained optimistic. [109] It is the general view of this group of appellants and many others, that carrying capacity potential has declined over the years and it is difficult to determine what might be regarded as an "average" season. However the use to which estimates of carrying capacity are placed in valuation is primarily for comparison of country. Regardless of whether estimates may now be too optimistic they provide a useful gauge for considering questions relating to relativity between valuations, if the estimates are consistent from one property to another. Evidence of Value [110] Mr Taylor relied on the same sales as for the "Bonnie Downs" valuation - ie - the sales of "Leebrook", "Roseberry Downs", "Tandarra" and "Luckham". He said the sale of "Luckham" was the best comparison being "similar to the subject in access" although "superior in country type and carrying capacity and smaller in size". As has been discussed in the "Bonnie Downs" matters the Department's historical carrying capacity for "Luckham" was one sheep to 1.6 ha. [111] Mr Robertson accepted the overall evidence of Mr Fawckner as to the reliability of the sales on which Mr Taylor's valuations had been based. In his oral evidence Mr Robertson said that he accepted that there might have been a general increase of up to 20% but not 50% above the previous valuation if that valuation had been correct. However that previous valuation had been based on a carrying capacity which had now been accepted by Mr Taylor as being too high. For that reason, his estimate of value, in the written statement prepared by Mr Boyd, reflected a decrease below the 1998 valuation. [112] As the "Luckham" sale was nominated by Mr Taylor as providing the best evidence of value, Mr Robertson concentrated on its comparison with "Orielton". He highlighted the superior country and shade of "Luckham"; its consequent superior carrying capacity; its much smaller area of 10,444 ha compared to "Orielton's" aggregated area of 34,113 ha. He could not accept Mr Taylor's suggestion that "Luckham" had similar access when it was situated 10 km off the bitumen and "Orielton" was a further 90 km over earth roads which can be impassable for long periods after rain. He also referred to the superior water supply available to "Luckham" and its lack of Prickly Acacia infestation which on -- 24 of 72 -- 25 "Orielton" created a financial burden and workload in its maintenance. He was unable to accept that a valuation of $22/ha could be correct for "Orielton's" much larger area when the same rate had been applied to "Luckham" based on its sale. [113] In his tendered statement Mr Robertson drew attention to some errors in Mr Taylor's written comparison of the sale "Tandarra". Mr Taylor acknowledged that some typographical errors had existed and required correction. Mr Taylor's description of "Tandarra's" road access being "superior" was a gross understatement, in Mr Robertson's opinion, when "Tandarra" had bitumen road access. [114] In Mr Taylor's oral evidence he acknowledged that Prickly Acacia infestation had encroached onto "Orielton" but, as I understood his evidence, that had been acknowledged to some extent in earlier valuations. He accepted the veracity of Mr Robertson's comments in relation to the location and length of earth road access to "Orielton", the superiority of the "Luckham" country and its much smaller size compared to the "Orielton" aggregation. However as has been discussed in the "Bonnie Downs" appeals Mr Taylor expressed the opinion that historically values for comparable country in this general locality increased from west to east and he saw this trend supported by the sales in Aramac Shire. [115] As it stands Mr Taylor's is the only professional opinion before the Court as to factors influencing the market. However, on the other hand, it is clearly wrong to state that access to "Orielton" and other properties in its general locality is similar to that of "Luckham". Conclusions and Finding [116] While Mr Taylor has led evidence to a lower valuation for this aggregated parcel for the reason that an alteration to carrying capacity was made, the benefit of that alteration does not appear to have flowed on to the valuations of the individual blocks for leasehold rent purposes. If part of the "Orielton" country is seen to be similar to "Luckham" but it is overall inferior, it follows that some of the blocks must be even more inferior. It will be seen that reductions are considered necessary to the valuations of the individual blocks for that reason alone. It will also be seen that some inconsistency has been found between the valuations of those individual blocks and the valuations made by Mr Taylor of the individual "Bonnie Downs" blocks, warranting some further reduction to the "Orielton" blocks on relativity grounds. [117] It then follows that some discounting of the individual valuations is warranted in the valuation of the "Orielton" aggregation due to the size of the aggregation and for -- 25 of 72 -- 26 consistency with Mr Taylor's approach to the valuation of the "Bonnie Downs" aggregation. [118] After giving consideration to the values which will be determined for the individual blocks I have concluded that, in comparison with "Luckham" in particular and with the valuations determined for "Bonnie Downs", the valuation of the overall "Orielton" aggregation should be reduced to $675,000 rounded from $19.75/ha overall. Order The appeal is allowed. The valuation made by the chief executive is set aside and the unimproved value of the "Orielton" aggregation as at 1 October 2001 determined in the amount of Six Hundred and Seventy-five Thousand Dollars ($675,000) rounded from $19.75/ha overall. -- 26 of 72 -- 27 [119] Appeal Reference/Owner: RV2002/0387 - Malcolm S Robertson Property: Part of "Orielton" Valuation - Valuation for Leasehold Rent Purposes Real Property Description: Lot 5 CM61:GHPL23/16412, Parish of Inverness Area: 11, 212.626 ha Valuation Appealed Against: $270,000 (rounded from $24/ha) Owner's Estimate of Value: $177,500 (Notice of Appeal) - evidence was led to a valuation of $154,740 ($13.80/ha). Nature of Country [120] By Mr Taylor: 1,222 ha (11%) better downs, lightly shaded with Whitewood and Vinetree, generally firm soils with a good body of grass. 9,710 ha (87%) lighter downs with looser and ashier soils generally with lesser shade. 280 ha (2%) creek channels in northern end of property. Carrying Capacity: One sheep to 1.7 ha on Mr Taylor's estimate. Evidence of Value [121] The evidence of value in this and the following appeals against the valuations of the individual leasehold blocks in the "Orielton" aggregation did not vary from the aggregated valuation. There was no specific oral evidence from Mr Taylor, reliance being placed on the written reports. [122] As referred to in the previous matter it seems to be an oversight that while evidence was led to a lower valuation of the aggregation, the valuation of the individual blocks remained unchanged. [123] As was pointed out in the appellant's written statement there appears to be a relativity problem between Mr Taylor's valuation of this block and the other two leasehold blocks based specifically on the description of the nature of the country on each block. The estimated carrying capacities of each block is said to be identical, but that seems to reflect a transposition from the aggregated parcel rather than a considered estimate for each block based on the nature of the country as described. Conclusions and Finding [124] Based on a direct comparison with "Luckham", the manner in which the sale of that property was applied to the individual blocks of "Bonnie Downs" and the question of overall relativity between the individual blocks of "Orielton", I have decided to adopt a -- 27 of 72 -- 28 valuation of $20.50/ha for this individual block in comparison with $21/ha for Lot 4 and $22/ha for Lot 3. Order The appeal is allowed. The valuation made by the chief executive is set aside and the unimproved value as at 1 October 2001 determined in the amount of Two Hundred and Thirty Thousand Dollars ($230,000) rounded from $20.50/ha overall. -- 28 of 72 -- 29 [125] Appeal Reference/Owner: RV2002/0388 - Malcolm S Robertson Property: Part of "Orielton" - Valuation for Leasehold Rent Purposes Real Property Description: Lot 3 on CM61:GHPL23/16413, Parish of Inverness. Area: 11,230.027 ha Valuation Appealed Against: $270,000 (rounded from $24/ha overall) Owner's Estimate of Value: $177,500 (Notice of Appeal) - evidence was led to a valuation of $156,660 ($13.95/ha). Nature of Country [126] By Mr Taylor: 9,030 ha (80%) better downs, lightly shaded with Whitewood and Vinetree, generally firm soils with a good body of grass. 2,200 ha (20%) lighter downs with looser and ashier soils generally with lesser shade. Evidence of Value and Finding [127] Having considered the valuation of each of the blocks and the overall evidence in relation to appeal RV2002/0387 I find that the valuation of this block should be reduced to $22/ha overall. Order The appeal is allowed. The valuation made by the chief executive is set aside and the unimproved value as at 1 October 2001 determined in the amount of Two Hundred and Forty-seven Thousand Five Hundred Dollars ($247,500) rounded from $22/ha overall. -- 29 of 72 -- 30 [128] Appeal Reference/Owner: RV2002/0389 - Malcolm S Robertson Property: Part of "Orielton" - Valuation for Leasehold Rental Purposes Real Property Description: Lot 4 on CM62:GHPL23/16414, Parish of Inverness. Area: 10,198.483 ha Valuation Appealed Against: $247,500 (rounded from $24.25/ha) Owner's Estimate of Value: $177,500 (Notice of Appeal) - evidence was led to a valuation of $140,230 ($13.75/ha). Nature of Country [129] By Mr Taylor: 3,828 ha (38%) better downs, lightly shaded with Whitewood and Vinetree, generally firm soils with a good body of grass. 5,120 ha (50%) lighter downs with looser and ashier soil generally with lesser shade. 1,250 ha (12%) channels of Culloden creeks. Evidence of Value and Finding [130] It was suggested in the written statement of evidence prepared by Mr Boyd that, based on a previous departmental description this was the most inferior of the three individual blocks. [131] That does not accord with Mr Taylor's descriptions based on his personal inspection. However, the observation by the appellants that when this block is clearly inferior to Lot 3, as confirmed by Mr Taylor's description, yet valued higher, the relativity is seen to be wrong. [132] Having considered the valuation of each of the three individual blocks and the overall evidence in relation to appeal RV2002/0387 I find that the valuation of this block should be reduced to $21/ha overall. Order The appeal is allowed. The valuation made by the chief executive is set aside and the unimproved value as at 1 October 2001 determined in the amount of Two Hundred and Fifteen Thousand Dollars ($215,000) rounded from $21/ha overall. -- 30 of 72 -- 31 [133] Appeal Reference/Owner: AV2002/0468 - Ian JM and Pauline J Mitchell Property: "Eyriewald" Real Property Description: Lot 5 on C22870:GHPL23/16526, Parish of Crombie; Lot 6 on C22870:GHPL23/16525, Parish of Crombie; Lot 6 on CM811981:GHPL23/16737, Parish of Inverness. Area: 24,172 ha Local Government: Winton Shire Council Valuation Appealed Against: $570,000 (rounded from $23.60/ha overall) Owner's Estimate of Value: $326,300 (Notice of Appeal) - evidence was led to a valuation of $374,700 ($15.50/ha). Situation and Access: The property is situated 114 km north-east of Winton via the Winton-Hughenden Road then along the Olio- Muttaburra Road, on 59 km of bitumen with the balance formed earth. Nature of Country [134] By Mr Taylor: 21,872 ha (90%) open to moderately shaded downs, mostly firm soils with areas tending loose. Shade is mostly Whitewood and Vinetree. 2,300 ha (10%) channels of Culloden and associated creeks, shaded throughout with coolibah. Carrying Capacity - one sheep to 1.6 ha. [135] The appellants did not attend the hearing and relied on the general statements of evidence prepared by Mr Boyd for Mr Fawckner as spokesman for the group. The appellants also relied on a handwritten statement and an amendment of Mr Taylor's sketch plan together with another statement prepared by Mr Boyd specifically in relation to this aggregation of property and its component parts, all of which were tendered by Mr Fawckner. [136] Mr Fawckner gave some brief evidence explaining that he was a neighbour of Mr Mitchell and had great respect for his business acumen, diligence and grazing/management skills. However he could do no more than advise that while for relativity purposes it was accepted that the historical departmental carrying capacity was as stated by Mr Taylor, Mr Mitchell had not been able to achieve those numbers of stock over the last decade. He was experiencing the same general difficulties as the other appellants. In the joint Boyd/Mitchell statement, as it was described, the true carrying capacity was considered now to be no more than one sheep to 2 ha. -- 31 of 72 -- 32 [137] The handwritten statement by Mr Mitchell stated that the country should be described as "Open loose downs with large areas without shade. Also half the watering points are without shade." [138] Mr Mitchell had made notations on a copy of Mr Taylor's sketch plan, indicating a number of "large areas of claypan" generally along a shaded area identified by Mr Taylor in other plans as representing the creek channel areas including claypan. Mr Mitchell also noted a number of locations of "large patches Bull Mitchell" grass. Evidence of Value [139] Mr Taylor again relied on the evidence provided by the sales of "Leebrook", "Roseberry Downs", "Tandarra" and "Luckham" with "Luckham" being the most comparable. [140] In this case Mr Taylor described "Luckham" as "similar to the subject in location, access and slightly inferior in country type ... smaller in size and inferior overall." [141] Mr Fawckner relied on the joint Boyd/Mitchell statement and while counsel for the respondent pointed to the difficulty with which he was faced in not being in a position to examine the author/s of the statement, the criticism of Mr Taylor's comparison with regard to location and access was consistent. [142] Mr Fawckner chose not to cross-examine Mr Taylor who relied on his written report. There was criticism again in the Boyd/Mitchell statement of Mr Taylor's comment about the inferiority of the "Luckham" country. Certainly when the written descriptions are compared similar carrying capacities are adopted and the "inferiority" of "Luckham" as referred to by Mr Taylor is not obvious. Mr Mitchell's statement contained the observation that there was no mention of "loose" downs in the "Luckham" description while there is on the subject particularly as noted on the relevant plans. [143] It is clear that "Luckham" is "inferior" in size compared with the aggregation, but that has been accepted by Mr Taylor as influencing a higher value per ha with an allowance for size having been made in the valuation of the "Bonnie Downs" aggregation which is in this locality and only marginally larger than the subject. Conclusions [144] The major thrust in the appellants' arguments generally was directed at the "Bonnie Downs" valuation with the owner Mr Fawckner also being the spokesperson for the group of appellants. Clearly Mr Taylor gave particular attention to the "Bonnie Downs" valuation because he had formed the opinion, correctly in my view, that there was evidence of incorrect relativity having occurred as a result of the 1998 reduction. It was Mr Fawckner's opinion that the relativity between valuations as re-established by Mr Taylor as at 1 October 2001 was generally fair. -- 32 of 72 -- 33 [145] After due consideration of the evidence I have found that Mr Fawckner was unable to show that the valuation of "Bonnie Downs" was wrong or out of relativity with the sales evidence. In this case the owners had not appealed against the 1998 valuation and the standard increase of 50% had been applied by Mr Taylor. Despite the opinion expressed by Mr Fawckner as to general relativity it seems to me that once the sale of "Luckham" is acknowledged as the most comparable evidence available for the appeal properties in the vicinity of "Bonnie Downs" the benchmark values established for those two properties should become relevant to the Court's remaining deliberations. I have found that the valuations relevant to "Orielton" require reduction and similar difficulties with Mr Taylor's valuation arise in this matter. [146] I have accepted that the negative aspect of access in comparison with "Luckham" may have been negated by Mr Taylor's interpretation of market expectations with distance to the east. However, if allowance for size was reasonable for "Bonnie Downs" and "Orielton" in comparison with the "Luckham" sale it is also reasonable for an allowance to be made in this case. I am unable to otherwise distinguish between the valuation applied to "Luckham" and to those applied to the smaller leasehold blocks in this group of appeals for country of generally the same nature. [147] It seems to follow that in the case of the subject "Eyriewald" individual blocks, the values applied by Mr Taylor are high compared to "Luckham". Further, no size allowance equivalent to that made for "Bonnie Downs" has been identified. Finding [148] On my appreciation of the overall evidence and the conclusion that some fine-tuning of relativity remains warranted I find that generally the individual blocks of the "Eyriewald" aggregation should be reduced to $22/ha then a small allowance made for the size of the aggregated holding, for which I will adopt an overall rate of $21.60/ha. Order The appeal is allowed. The valuation made by the chief executive is set aside and the unimproved value as at 1 October 2001 determined in the amount of $522,500 rounded from $21.60/ha overall. -- 33 of 72 -- 34 [149] Appeal Reference/Owner: RV2002/0469 - Ian JM and Pauline J Mitchell Property: Part of "Eyriewald" - Valuation for Leasehold Rent Purposes Area: 1,968.164 ha Valuation Appealed Against: $46,000 (rounded from $23.50/ha) Owner's Estimate of Value: $26,600 (Notice of Appeal) - evidence was led to a valuation of $29,500 ($15/ha). Nature of Country [150] By Mr Taylor: 1,733 ha (88%) open to moderately shaded downs, mostly firm soils with areas tending loose. Shade is mostly Whitewood and Vinetree. 235 ha (12%) channels of Culloden Creek, shaded throughout with coolibah. Carrying Capacity: One sheep to 1.6 ha. Evidence of Value [151] Apart from the general criticism of Mr Taylor's comparison with "Luckham", there is the further criticism that no mention was made of the severance of this small block by the Olio-Muttaburra Road. It is argued that the small size of the block in this environment would not be a positive market feature. Conclusions and Finding [152] For reasons earlier given, I am not persuaded that this block has any advantage over "Luckham" and no differentiation should be made for its unusually small size. It is considered that any inconvenience caused by the road severance would be negligible in this environment but that any adverse effect could be negated by stock not being prevented from grazing the road reserve. [153] I find that the valuation should be reduced to $22/ha overall. Order The appeal is allowed. The valuation made by the chief executive is set aside and the unimproved value as at 1 October 2001 determined in the amount of Forty-three Thousand Five Hundred dollars ($43,500) rounded from $22/ha overall. -- 34 of 72 -- 35 [154] Appeal Reference/Owner: RV2002/0470 - Ian JM and Pauline J Mitchell Property: Part of "Eyriewald" - Valuation for Leasehold Rent Purposes Real Property Description: Lot 6 on CM811981:GHPL23/16737, Parish of Inverness. Area: 14,110 ha Valuation Appealed Against: $330,000 (rounded from $23.50/ha) Owner's Estimate of Value: $190,500 (Notice of Appeal) - evidence was led to a valuation of $217,300 ($15.40/ha). Nature of Country [155] By Mr Taylor: 12,460 ha (88%) open to moderately shaded downs, mostly firm soils with areas tending loose. Shaded with mostly Whitewood and Vinetree. 1,650 ha (12%) channels of Culloden and associated creeks, shaded throughout with coolibah. Carrying Capacity: One sheep to 1.6 ha. Evidence of Value [156] As for earlier "Eyriewald" appeals with "Luckham" the most comparable sale. Finding [157] For the reasons given earlier I find that the chief executive's valuation should be reduced to $22/ha overall. Order The appeal is allowed. The valuation made by the chief executive is set aside and the unimproved value as at 1 October 2001 determined in the amount of Three Hundred and Ten Thousand Dollars ($310,000) rounded from $22/ha overall. -- 35 of 72 -- 36 [158] Appeal Reference/Owner: RV2002/0471 - Ian JM and Pauline J Mitchell Property: Part of "Eyriewald" - Valuation for Leasehold Rent Purposes Real Property Description: Lot 5 on C22870:GHPL23/16526, Parish of Crombie. Area: 8,093.713 ha Valuation Appealed Against: $190,000 (rounded from $23.50/ha) Owner's Estimate of Value: $109,300 (Notice of Appeal) - evidence was led to a valuation of $124,240 ($15.35/ha). Nature of Country [159] By Mr Taylor: 7,674 ha (95%) open to moderately shaded downs mostly firm soils with areas tending loose. Shaded with mostly Whitewood and Vinetree. Some pebbles in southern end. 420 ha (5%) channels of Culloden Creek, shaded throughout with coolibah. Carrying Capacity : One sheep to 1.6 ha. Evidence of Value [160] As for the earlier "Eyriewald" appeals with "Luckham" the most comparable sale. The appellants allege that the road severance is a disability that has not been given consideration but for reasons given in appeal RV2002/0469 I do not accept that measurable disability has been shown to exist. Finding [161] For the earlier reasons I find that the chief executive's valuation should be reduced to $22/ha overall. Order The appeal is allowed. The valuation made by the chief executive is set aside and the unimproved value as at 1 October 2001 determined in the amount of One Hundred and Seventy-eight Thousand dollars ($178,000) rounded from $22/ha overall. -- 36 of 72 -- 37 [162] Appeal Reference/Owner: AV2002/0476 - Ian JM and Pauline J Mitchell Property: "Scotstoun" Real Property Description: Lot 7 PL14:GHPL2/3809 and Lot 11 PL92:TL219583, Parish of Wilton. Area: 7,470.208 ha Local Government: Aramac Shire Council Valuation Appealed Against: $212,500 (rounded from $28.50/ha) Owner's Estimate of Value: $156,100 (Notice of Appeal) - evidence was led to a valuation of $181,526 ($24.30/ha). Situation and Access: 30 km via the bitumen Aramac-Muttaburra Road north- west of Aramac. Nature of Country [163] By Mr Taylor: 1,010 ha (14%) Gidyea scrub with boree, heavy brown soils. Much of this country has been pulled. 870 ha (12%) moderately to thickly timbered boree country with some gidyea and odd false sandalwood, generally well grassed with Mitchell grass. 5,590 ha (75%) downs - open to moderately shaded, generally well grassed, with areas of Whitewood, Vinetree and boree shade. Carrying Capacity: One sheep to 1.5 ha. [164] Mr Fawckner tendered a brief handwritten statement by Mr Mitchell, a copy of the plan from Mr Taylor's report on which were noted three "large claypan areas" and an unsigned statement of evidence prepared by Mr Boyd described as a joint Boyd/Mitchell statement. Reliance was also placed on the general statements of evidence prepared for Mr Fawckner and tendered in his appeals. [165] The handwritten statement contained the following - "At least 4,000 acres is problem gidyea regrowth that has been pulled twice in 15 years (approximately 25% of area). Downs country is very open and does not perform as it should." [166] In the Boyd/Mitchell statement it was suggested that Mr Taylor's description of the country was wrong and different from past departmental descriptions. [167] The Department relied on Mr Taylor's evidence. Mr Fawckner was not in a position to challenge his evidence through cross-examination. No assistance is provided to the Court by disputed material when the person taking responsibility for that written material is unavailable for examination. -- 37 of 72 -- 38 [168] As will be seen even if past departmental descriptions were different Mr Taylor did not alter the relativity which had existed previously between the valuation of "Scotstoun" and relevant sale properties. The appellants' challenge related to the percentage increase applied to the relevant sale properties and the subject property. Evidence of Value [169] Mr Taylor continued to rely on the sales of "Leebrook", "Roseberry Downs", "Tandarra" and "Luckham". "Leebrook" (carrying capacity of one sheep to 1.4 ha) was the only sale property considered superior to "Scotstoun" in terms of carrying capacity and country type and "superior overall due to lack of scrub content". The access to "Leebrook" was considered inferior to that of "Scotstoun". The sale had been analysed to show an unimproved value of $38.57/ha and a valuation of $36.88/ha had been applied. That was consistent with the increase of 50% above the 1998 valuation which had been generally applied. "Scotstoun" in comparison (carrying capacity of one sheep to 1.5 ha as its potential after development of the scrub country) was valued at $28.50/ha. [170] Mr Taylor described "Roseberry Downs" as inferior country type and carrying capacity (one sheep to 1.6 ha), but superior overall due to the lack of scrub content and with similar access. The sale was analysed to show an unimproved value of $33.16/ha and a valuation of $32.82/ha had been applied again consistent with the 50% increase which had been generally applied. [171] In the statement compiled by Mr Boyd, "Scotstoun" was described as completely different to any of the sales mentioned by either Mr Taylor or the appellants "so it would therefore seem appropriate to value this property in relation to a percentage increase in value, rather than by a direct comparison". It was accepted that the past and existing relativity between the valuations applied to "Leebrook" and "Scotstoun" was reasonable but had a "norm" 90% application of the "Leebrook" analysed sale price been adopted then an increase of only 30% above the 1998 valuation would have resulted. In turn that would have warranted a 30% increase for the valuation of "Scotstoun" bringing it to $24.30/ha. Conclusion and Finding [172] The sales adopted by Mr Taylor support the 50% increase applied to the sale properties and the increase of 50% based on the existing relativities generally. The submission that a "norm" 90% of sales analyses should be adopted has been dealt with in the reasons for the decision in the "Bonnie Downs" appeal. The allegation that the sales evidence was applied "aggressively" has also been refuted in the circumstances of the sales evidence overall. -- 38 of 72 -- 39 [173] As is accepted by the appellants through Mr Boyd, the relativity between the valuations applied to the sale property "Leebrook" and the valuation of "Scotstoun" appealed against has not altered and is considered reasonable. In my view the same applies to the balance of the sales evidence adopted by Mr Taylor, regardless of the difficulties seen by the appellants in making the appropriate comparison. [174] I do not accept that the valuation appealed against has been shown to be wrong. Order The appeal is dismissed and the unimproved valuation made by the chief executive as at 1 October 2001 affirmed. -- 39 of 72 -- 40 [175] Appeal Reference/Owner: RV2002/0477 - Ian JM and Pauline J Mitchell Property: Part of "Scotstoun" - Leasehold Valuation for Rent Purposes Real Property Description: Lot 7 PL14:GHPL2/3809, Parish of Wilton. Area: 6,953.208 ha Valuation Appealed Against: $197,500 (rounded from $28.40/ha) Owner's Estimate of Value: $145,300 (Notice of Appeal) - evidence was led to a valuation of $171,000 ($24.60/ha). Nature of Country [176] This lease comprises the majority of the "Scotstoun" holding the only difference being the lesser area of about 517 ha of the open downs, contained in the following lease appeal. Evidence of Value [177] Mr Taylor relied on the same evidence which was accepted in the earlier appeal and the appellants relied on the rejected submission that the increase above the previous valuation should have been 30% rather than the 50% applied. [178] Mr Taylor has applied a marginally less (10 cents) rate per ha overall which might be either related to a rounding process from the applied increase or some recognition that there is a marginally proportionally higher component of scrub country once the lease subject of the following appeal is excised. Finding [179] I find no reason to disturb the valuation appealed against. Order The appeal is dismissed and the unimproved valuation made by the chief executive as at 1 October 2001 affirmed. -- 40 of 72 -- 41 [180] Appeal Reference/Owner: RV2002/0478 - Ian JM and Pauline J Mitchell Property: Part of "Scotstoun" - Leasehold Valuation for Rent Purposes Real Property Description: Lot 11 on PL92:TL219583, Parish of Wilton. Area: 517 ha Valuation Appealed Against: $21,500 (rounded from $41.60/ha) Owner's Estimate of Value: $10,800 (Notice of Appeal) - evidence was led to a valuation of $18,720 ($36.21/ha). Nature of Country [181] Mr Taylor described the country as part of the downs classification in the "Scotstoun" aggregation. Evidence of Value [182] Mr Taylor was unaware of any sales of property comparable to this block "as it comprises an area of only 517 ha ...". As I understood the situation, the 50% increase above the 1998 valuation had been maintained, based on the overall evidence. [183] The appellants accepted that maintenance of the previously existing relativity with "Leebrook" "seems appropriate" showing a premium of about 13% "for small size and location". However they maintain that the increase should have been 30% rather than 50% above the previous valuation. Finding [184] I find no reason to disturb the chief executive's valuation. Order The appeal is dismissed and the unimproved valuation made by the chief executive as at 1 October 2001 affirmed. -- 41 of 72 -- 42 [185] Appeal Reference/Owner: AV2002/0479 - Heather M Elliott and Debra J Kojrowicz Property: "Highbury" Real Property Description: Lot 6 on PL14:GHFL2/3820, Parish of Wilton. Area: 8,659 ha Local Government: Aramac Shire Council Valuation Appealed Against: $325,000 (evidence led to a valuation of $285,000 ($37.50/ha less 12.5% for Prickly Acacia infestation). Owner's Estimate of Value: $236,400 (Notice of Appeal) - evidence was led to a valuation of $237,500 ($27.43/ha). Situation and Access: About 40 km via the bitumen Aramac/Muttaburra Road north-west of Aramac and adjacent to "Scotstoun". Nature of Country [186] By Mr Taylor: Open to lightly shaded downs, generally firm soils, with Whitewood and Vinetree shade. Includes a small area of pebbly gidyea in the south-eastern part. An area of 2,690 ha is moderately to severely affected by Prickly Acacia. It affects 31% of the property, which attracts an allowance of 12.5% off the valuation. Carrying Capacity: One sheep to 1.4 ha. [187] As I understood the situation, this property is managed as part of the IJ and PJ Mitchell group of properties. It adjoins "Scotstoun" on the north-western side. Mr Mitchell had prepared and had tendered through Mr Fawckner a short written statement together with notations on a copy of a plan which had been included in Mr Taylor's report. Also tendered through Mr Fawckner was an unsigned statement described as a joint Boyd/Mitchell statement which had been prepared by Mr Boyd. [188] Mr Mitchell's handwritten statement contained the following: "The whole area is infested with Prickly Acacia. Perhaps the valuer does not know the difference between Prickly Acacia and Mimosa. Impossible to control." The copy of the plan on which was delineated the area considered by Mr Taylor to be moderately severely affected by Prickly Acacia, had been marked by Mr Mitchell to show several additional areas of "heavy Prickly Acacia" and much of the balance with "moderate Prickly Acacia". -- 42 of 72 -- 43 [189] Mr Fawckner's evidence was that he knew the property well after having agisted stock there about 10 years or more previously and had been amazed when he went back there recently to see just how the Prickly Acacia had spread. "It is particularly bad as Mr Mitchell says in his statement." He described Mr Mitchell's additional notations as according with his opinion "from what I saw when I was over there." [190] Mr Taylor had inspected the property prior to the hearing of the appeal. Mr Mitchell had been interviewed prior to the inspection but had been unable to accompany him. However Mr Taylor said that he had visited Mr Mitchell some time later and shown him his estimation of the extent of infestation as had been transferred onto the plan with his report. He had not recalled seeing trees in the additional areas now indicated by Mr Mitchell's notations "but there may well have been a few in amongst the others". The area shown on his plan was where he considered "the infestation really was". [191] It seems from Mr Fawckner's evidence that the spread of Prickly Acacia has become an increasing problem over recent years. There is no evidence as to the actual extent of the spread at the relevant date of valuation some 2½ years prior to the inspections by Mr Taylor or Mr Fawckner. Mr Taylor, as might have been expected, verified that despite the innuendo in Mr Mitchell's statement, he was well aware of the difference between Prickly Acacia and Mimosa. Evidence of Value [192] Mr Taylor again relied on the sales of "Leebrook", "Roseberry Downs", "Tandarra" and "Luckham" as support for the initial 50% increase generally applied throughout the central western downs country. In his opinion "Leebrook" was similar to "Highbury" in terms of country type and carrying capacity but inferior overall due to inferior access, at least prior to his consideration of "Highbury's" recognised Prickly Acacia problem. Had past relativity between the valuations of "Leebrook" ($36.88/ha) been maintained as it was initially, "Highbury's" valuation would have been $37.50/ha. An allowance of 12½% for the Prickly Acacia infestation reduced that overall figure to about $32.85/ha before rounding. [193] It appeared that the appellants through Mr Boyd were prepared to accept that the sale of "Leebrook" could not be disregarded. It was once again argued that the sales of "Merino Downs", "Boorameel", "Leichhardt Farms" and "Padua" in the same general locality showing little or no increase in improved values since 1998 warranted a "norm" application of 90% of the analysed unimproved value of the "Leebrook" sale. That would have resulted in a 30% increase above the previous valuation of "Highbury" before "the -- 43 of 72 -- 44 maximum allowance of 15%" should have been applied because the extent of Prickly Acacia infestation was said to be in excess of that suggested by Mr Taylor. Conclusions and Finding [194] I have for the reasons given earlier rejected the submission that the "Leebrook" or other sales relied on by Mr Taylor had been applied aggressively. [195] Mr Taylor's assessment of the diminution in value caused by the Prickly Acacia infestation is the only professional evidence before the Court as to its effect on the unimproved value of "Highbury" at the relevant date of valuation. [196] I find no reason to interfere with his reassessment of the valuation which has the effect of reducing the valuation appealed against from $325,000 to $285,000. Order The appeal is allowed. The chief executive's valuation appealed against is set aside and the unimproved value as at 1 October 2001 determined in the amount of Two Hundred and Eighty-five Thousand Dollars ($285,000) on the basis of the evidence led by Mr Taylor relevant to the effect of Prickly Acacia. -- 44 of 72 -- 45 [197] Appeal Reference/Owner: AV2002/0474 and RV2002/0475 - Debra J Kojrowicz Property: "Ingle Downs" Real Property Description: Lot 2 on MK15:GHPL45/3761, Parish of Whartum. Area: 10,758.973 ha Local Government: Winton Shire Council Valuations Appealed Against: $207,500 (rounded from $19.25/ha) both for Rating and Leasehold Rent Purposes Owner's Estimate of Value: $123,700 (Notices of Appeal) - evidence was led to a valuation of $116,630 ($10.84/ha). Situation and Access: 96 km north-west of Winton, via the bitumen Winton- Kynuna Road (Matilda Highway) for 55 km then the balance via the formed earth Wockingham Creek Road. Nature of Country [198] By Mr Taylor: All open Mitchell grass downs country of which about 33% is loose ashy downs, 33% on the western side is firmer pebbly downs with Bull Mitchell and the middle of the property is firm Mitchell grass downs generally sparsely shaded to open with its best shade on its eastern and southern end. Carrying Capacity: One sheep to 1.8 ha. [199] This property is also managed as part of the IJ and PJ Mitchell group of properties, including the near adjacent "Moreena" to the north. Through Mr Fawckner was tendered a handwritten statement signed by Mr Mitchell; a copy of Mr Taylor's property plan marked by Mr Mitchell with "large areas of Bull Mitchell"; and an unsigned statement described as a joint Boyd/Mitchell statement prepared by Mr Boyd. [200] There was no real criticism of Mr Taylor's overall description of the "Ingle Downs" country. Mr Mitchell's statement contained the following: "The only trees are the ones on the map. Half the area is treeless with large areas of grassless ashy downs that only grows herbage after considerable rains. 90% of watering points don't have any shade. 'Ingle Downs' is not one sheep to 1.8 hectares. The last four years it has been capable of running one beast to about 60 acres." Evidence of Value [201] Once again Mr Taylor relied on the sales of "Leebrook", "Roseberry Downs", "Tandarra" and "Luckham" as support for the general 50% increase above the 1998 valuations. "Luckham" was then considered to be the best comparison with "Ingle Downs". It was -- 45 of 72 -- 46 described as similar in location and access "and slightly inferior in country type, similar in size and superior overall." [202] Little attention was paid to the unsigned Boyd/Mitchell statement as neither the author nor Mr Mitchell were present and Mr Fawckner could take no responsibility for its contents. However it is observed that it contained criticism of the description of "Luckham's" country being "inferior" to that of "Ingle Downs". It is accepted that the "Luckham" country would be superior to that of "Ingle Downs" and was valued accordingly - at $22/ha and $19.25/ha respectively - a difference of $2.75/ha rather than the 77 cents suggested in the Boyd/Mitchell statement. There was also some criticism of Mr Taylor's description of the location and access being "similar" which has been a general complaint to which reference has been made earlier. However, in this case, the subject property lies to the north-west of Winton rather than to the north-east as most of the other appeal properties have been. [203] Mr Fawckner also tendered some photographs of the much superior shade on "Tandarra", at least in the general vicinity of the "Tandarra" homestead. The intent of tendering these photographs was to counter a suggestion put to him in earlier discussions relative to his own appeal that some of the "shade example" photography might have been overly selective. [204] Mr Fawckner was able to personally confirm that this property had suffered severely from the effects of drought in recent years as indicated in Mr Mitchell's statement. [205] There was a suggestion in the Boyd/Mitchell statement that the subject valuation was demonstrably excessive when, in comparison with other properties with carrying capacities of one sheep to 1.8 ha as estimated by departmental officers, "Drumlion" and "Pialaway" (the valuations of which are also subject of appeal), previously existing relativity had been disturbed. Original valuations of these example properties had been about 13% higher than that of "Ingle Downs" when the 2001 valuations had first issued. However after reductions of the valuations of the example properties, on objections, the difference had reduced to only about 4%. [206] There is no doubt that the "Drumlion"/"Pialaway" aggregation has better location and dry weather access than this property. The fact that the 2001 valuations of these example properties were reduced on objection indicates that specific recognition had been made of disabilities peculiar to those properties. [207] Nevertheless a difficulty presents itself in this matter. Mr Taylor suggested in, for example, the "Orielton" appeals, that historically the Department has interpreted values for comparable country in Winton Shire as increasing from west to east or conversely -- 46 of 72 -- 47 decreasing from east to west. "Ingle Downs" is located westerly of "Luckham", the primary sale for comparison purposes. Its country is clearly inferior and while Mr Taylor describes its access as similar, it would arguably be inferior, even in dry weather. Mr Taylor appears to have relied on the previously existing relativity between the valuations of "Ingle Downs" and "Luckham" and the remaining sale properties. However I have concluded that, all things considered, the existing relativity requires some adjustment on the evidence overall. I will determine the unimproved value in the amount of $200,000, rounded from $18.50/ha). Order The appeals are allowed. The valuations made by the chief executive are set aside and the unimproved value for rating and leasehold rent purposes as at 1 October 2001 determined in the amount of Two Hundred Thousand Dollars ($200,000) -- 47 of 72 -- 48 [208] Appeal Reference/Owner: AV2002/0472 and RV2002/0473 - Robyn E Kelly Property: "Moreena" - Rating and Leasehold Rent Valuations Real Property Description: Lot 7 on MK32:GHPL23/16156, Parish of Mullan. Area: 14,249.791 ha Local Government: Winton Shire Council Valuations Appealed Against: $290,000 (rounded from $20.40/ha) for both Rating and Leasehold Rent Purposes. Owner's Estimate of Value: $178,000 (Notices of Appeal) - evidence was led to a valuation of $162,450 ($11.40/ha). Situation and Access: 106 km north-west of Winton via the Winton-Kynuna Road (Matilda Highway) for 55 km then the earth formed Wockingham Creek Road which Mr Taylor stated "can be affected by flooding during wet years". Nature of Country [209] By Mr Taylor: 560 ha creek channels Balance comprises lightly shaded pebbly downs running to more open downs. Approximately 2,900 ha has loose soils. Carrying Capacity: One sheep to 1.8 ha [210] This block is also managed as part of the IJ and PJ Mitchell group of properties including the near adjacent "Ingle Downs" to the south. Again, through Mr Fawckner was tendered a handwritten statement signed by Mr Mitchell; a copy of Mr Taylor's property plan marked with "considerable claypan on channels" the channel area having been identified by Mr Taylor on the plan, and "areas of heavy Bull Mitchell"; and an unsigned statement described as a joint Boyd/Mitchell statement prepared by Mr Boyd. [211] Mr Mitchell's handwritten statement contained the following: "This 36,000 acres is very lightly grassed and the carrying capacity has been one beast to 80 acres for the last few years. There are a lot more large ashier areas than shown on the map. Shade is very sparse at watering points with big areas treeless." [212] In the Boyd/Mitchell statement there was similar criticism as to the comparison with "Luckham" to which reference was made in the previous "Ingle Downs" appeal. Again, the basis for the owner's estimate was maintenance of the previous relativity with the "Drumlion" and "Pialaway" aggregation, the 2001 valuations of which had been reduced on objection. The existing relativity between the Department's valuations per ha of "Ingle -- 48 of 72 -- 49 Downs" and "Moreena", the former being about 95% of the latter, was apparently accepted by the appellant as reasonable. Finding [213] Having decided that the Department's valuation of "Ingle Downs" should be reduced and in the absence of any argument which would warrant adjustment of the relativity between the values per ha previously existing between "Ingle Downs" and "Moreena", these valuations will also be reduced, for similar reasons to those of "Ingle Downs" to $277,500 rounded from $19.50/ha. Order The appeals are allowed. The valuations made by the chief executive are set aside and the unimproved value for rating and leasehold rent purposes as at 1 October 2001 determined in the amount of Two Hundred and Seventy-seven Thousand five Hundred Dollars ($277,500). -- 49 of 72 -- 50 [214] Appeal Reference/Owner: AV2002/0302 and RV2002/0303 - Peter J and Oenone Crombie Property: "Drumlion" - Valuations for Rating and Leasehold Rent Purposes Real Property Description: Lot 1 on CM50 and Lot 14 on CM73:GHPL29/11053, Parish of Kensington. Area: 8,261.961 ha Local Government: Longreach Shire Council Valuations Appealed Against: The relevant Court files indicate that the Department's unimproved valuation of this land is $165,000 for rating purposes (AV2002/0302) but $170,000 for leasehold rent purposes (RV2002/0303). Evidence was led by Mr Taylor to a valuation of $165,000 (rounded from $20/ha) for both purposes. Owner's Estimate of Value: $101,000 (Notices of Appeal) - evidence was led to a valuation of $103,320 ($12.50/ha in each case). Situation and Access: About 78 km by road east of Winton, 68 km of bitumen balance formed earth or 120 km from Longreach via 110 km of bitumen. Nature of Country [215] By Mr Taylor: Mostly very open to shadeless Mitchell grass downs with some Whitewood and Vinetree shade on ridge tops in the southern and western parts. Loose ashy soils with some tighter soils in the shaded areas. Carrying Capacity: One sheep to 1.8 ha. [216] Mr Crombie attended the hearing and tendered written statements; one prepared by Mr Boyd; and gave oral evidence with assistance from Mr Fawckner. This block is located on the boundary of Longreach Shire and the balance of "Drumlion", known as the "Pialaway" block adjoins to the north in the western extremity of Aramac Shire. [217] Mr Crombie was concerned that he had departed in his oral evidence from estimates of carrying capacity as set out in the Boyd statement. However he was genuine in his belief as were many of the appellants in this group that while the historical departmental estimates had been adopted for relativity purposes, the seasons had been such in the last decade at least and probably since those experienced in the 1970s, as not to allow those historical estimates to be achieved on the "average". In his opinion a carrying capacity of one sheep to 2 ha would be more realistic if there was such a thing as an "average" season and even then there would be the need for the feeding of stock supplements. He was -- 50 of 72 -- 51 experiencing similar problems as were other property owners in the locality with the death of shade vegetation and Mitchell grass, where it did previously exist, probably as a result of the extended drought conditions. [218] While not disagreeing with Mr Taylor's general description of "Drumlion" he felt that the wording of the description of the country, when read in conjunction with the property plan, could be interpreted as a reference to better country than it was in reality. [219] In Mr Crombie's opinion a generalisation in the identification and valuation of downs country was misleading when there were differing qualities of downs as evidenced not only by the carrying capacity potential but the type of pasture and the production capacity of each animal carried on the country. The inferiority of "Drumlion" was the factor which allowed him to have acquired it in the first place when he was starting off, because it was cheaper than other blocks and the best that he could afford. As a result of the ashy nature of the country the seasons tended to be very short with predominantly Flinders grass and herbage while any Mitchell grass was lacking in density. [220] One of the difficulties being experienced was the deterioration in the quantity and quality of the sub-artesian water and the expense involved in obtaining an artesian supply. Evidence of Value [221] Of the sale properties "Leebrook", "Roseberry Downs", "Tandarra" and "Luckham", Mr Taylor found "Luckham" again the most comparable although superior in country type but, in his opinion, similar in access and inferior in location. The valuation applied to "Luckham" as supported by the sale was $22/ha in comparison with $20/ha over all to "Drumlion". [222] "Tandarra" had better location and access and also superior country overall, although part was considered comparable and a valuation of $27.19/ha had been applied to it based on the sale. [223] In his cross-examination Mr Taylor agreed that the file property plan may have contained more complete notations than the plan included in his report but his valuation had given consideration to matters which had been recorded on file, including reference to a potential management problem due to the shape of the "Drumlion" block within Longreach Shire. The reasons for reduction in the valuation which originally issued, as referred to in the Boyd statements for this and the "Ingle Downs" and "Moreena" properties, was not exposed, although Mr Taylor's evidence revealed that he had been made aware of Mr Crombie's concerns relative to water. [224] The basis of the estimate of value contained in the Boyd statement ($12.50/ha) was that "the 1998 sheep area value of 'Drumlion'" was adjusted "back to $18.75 because of its -- 51 of 72 -- 52 ashy content" then a 20% increase was applied in line with the overall submissions that the increase over and above the 1998 levels should not exceed 20%. [225] Apparently this was one of the group of properties the 1998 valuation of which had been reduced then as at 1 October 2001, manually adjusted first by the application of a 79% increase as opposed to the general 50%, but then a 64% increase after the reduction upon the objection to the valuation. Conclusions and Finding [226] There is no dispute as to the overall inferiority of this block and the adjacent "Pialaway" block, in comparison with the sale properties overall. However the reasoning behind the appellants' suggestion that the 1998 reduction was insufficient has no cogent basis, the nature of the country having been historically recognised by the Department. Mr Taylor set out to correct what he saw as a relativity problem created by the 1998 reduction, in any event. [227] It seems to me that despite the inferiority of the country, there is room for some argument that if the price paid for "Tandarra" was influenced in part by its location, quite apart from its bitumen road access, then the valuation of "Drumlion" is suitably conservative when its location is taken into consideration. [228] There is no persuasive evidence to conclude that the valuation of this part of "Drumlion" in the amount of $165,000 is too high in comparison with the sales evidence or on relativity grounds. The appeal against the valuation of $165,000 (AV2002/0302) fails accordingly. However as it appears that the valuation for leasehold rent purposes was never adjusted administratively, that appeal should formally be allowed for consistency. Order Appeal AV2002/0302 is dismissed while Appeal RV2002/0303 is allowed and the unimproved value determined in the amount of One Hundred and Sixty-five Thousand Dollars ($165,000) as at 1 October 2001, for both rating and rent purposes. -- 52 of 72 -- 53 [229] Appeal Reference/Owner: AV2002/0304 - Peter J and Oenone Crombie Property: "Pialaway" (Aramac Shire part of "Drumlion") Real Property Description: Lot 13 on C22839: Part GHFL29/10972, Parish of Kensington Area: 8,336 ha Local Government: Aramac Shire Council Valuation Appealed Against: $167,500 (rounded from $20/ha overall) Owner's Estimate of Value: $104,000 (Notice of Appeal) - evidence was led to a valuation of $105,600 ($12.67/ha). Situation and Access: About 95 km by road east of Winton via 68 km bitumen highway, 22 km formed earth and 5 km unformed survey road. Used in conjunction with the adjoining part of "Drumlion" through which access is obtained. Nature of Country [230] By Mr Taylor: Open undulating Mitchell grass downs. Very little shade, with scattered Whitewood and Vinetree on ridge tops. Carrying Capacity: One sheep to 1.8 ha. [231] By Mr Crombie: "Pialaway" consists of open undulating Mitchell grass downs. Significant areas of ashy loose soils, very little shade with sparse to scattered Whitewood and Vinetree on ridges. Lack of sub-artesian water creates special problems. I do not consider any of "Pialaway" as heavy downs. Carrying Capacity: One Sheep to 2 ha but departmental historical estimate of one sheep to 1.8 ha accepted for relativity considerations. [232] In his oral evidence Mr Crombie did not challenge the general description given by Mr Taylor except to the extent that he said it could be interpreted in company with the property plan as suggesting better quality country than it was in reality and not containing the full departmental file notes. Mr Taylor accepted that while he relied on the file notes some of that detail may not have been fully transposed. [233] Generally the same comments were made by Mr Crombie as were relevant to the previous Longreach Shire appeal, including carrying capacity and animal production potential. Photographs were tendered showing the generally open nature of the country and the type of natural pasture as well as the deficiency of pasture in the shaded areas. -- 53 of 72 -- 54 Evidence of Value [234] Apart from some descriptive errors with regard to comparisons by Mr Taylor of "Luckham" and the subject the relevant evidence in this appeal is similar to that in the previous matter. Conclusion and Finding [235] There is no persuasive evidence which leads me to accept the basis on which the appellants' estimate of value for this or the other part of "Drumlion" was made, or that the Department's valuation has been shown to be too high in comparison with the sales evidence or on relativity grounds. Order The appeal is dismissed and the unimproved valuation made by the chief executive as at 1 October 2001, affirmed. -- 54 of 72 -- 55 [236] Appeal Reference/Owner: AV2002/0305 - Peter J Crombie Property: "Lucella" Real Property Description: Lot 9 on C22863:GHFL23/16368, Parish of Lucella. Area: 6,989 ha Local Government: Winton Shire Council Valuation Appealed Against: $157,500 (rounded from $22.50/ha) Owner's Estimate of Value: $91,000 (Notice of Appeal) - evidence was led to a valuation of $106,930 ($15.30/ha). Situation and Access: About 105 km via Aldingham Road north-east of Winton with 8 km bitumen and the balance formed earth. Nature of Country [237] By Mr Taylor: Open undulating downs country lightly shaded with Whitewood and Vinetree. Includes areas of looser soils in the eastern and western parts and an area of creek channels running parallel to the eastern boundary. Carrying Capacity : One sheep to 1.6 ha. [238] By Mr Crombie: Open undulating downs country, lightly to totally spare of shade of Whitewood and Vinetree. Includes area of looser and ashy soil totalling 40- 50% of the property. A single broken channel runs parallel to the eastern boundary with no lasting waterholes and flood out benefit is minimal. Lack of good sub-artesian water affects stocking rates. Carrying Capacity: One sheep to 1.8 ha. [239] Mr Crombie tendered photographs showing the limited nature of the "channel" country. He felt that the notation by Mr Taylor on the property plan and the accompanying "creek channels" description could give the false impression that it was an area of desirable flood out country. He was also strongly of the opinion that there were larger areas of looser ashy country than the looser downs depicted on Mr Taylor's plan and as a consequence lesser areas of the "better shaded firmer downs". [240] Mr Crombie again did not accept the reality of the departmental estimate of carrying capacity and suggested that his estimate of one sheep to 1.8 ha might be possible if seasons were more reliable. The acceptance, in a written statement prepared by Mr Boyd of one sheep to 1.6 ha had been intended to consider valuation relativities based on historical departmental estimates. -- 55 of 72 -- 56 Evidence of Value [241] Again Mr Taylor found "Luckham" to be the most comparable sale as well as supporting the 50% increase applied generally on the evidence of the sales of "Tandarra", "Roseberry Downs" and "Leebrook". [242] As in the Fawckner appeal there was criticism of Mr Taylor's description of "Luckham" having similar location and access as "Lucella". This property adjoins "Bonnie Downs" and the findings on that aspect of the "Luckham" comparison are relevant here as well. Apart from that issue Mr Crombie felt that the country of "Lucella" although rated by the Department as having a similar carrying capacity as that of "Luckham", was slightly inferior. [243] Mr Crombie was a witness whose opinions command respect. He accepted that while "Lucella" is a small block and there may be market factors which influence a higher pro- rata price for smaller blocks, there are significant problems when blocks are too small to warrant expenditure on infrastructure. He was particularly concerned about the cost of providing water improvements such as an artesian bore. "Lucella" was mostly watershed country which restricted the availability of sites for surface water and the quantity and quality of sub-artesian water was now a real problem. [244] In the statement prepared by Mr Boyd there was a suggestion that there had been an "obvious error" made by the Department in 1998 when the unimproved sheep area values for "Pialaway" and "Drumlion" were higher than for the better "Lucella" block. With the 2001 valuations now subject to these appeals the unimproved sheep area values are about the same and "it is obvious the valuations of 'Pialaway' and 'Drumlion' are therefore excessive." One of the difficulties which results from advice based on theory and mathematical calculations is that sheep area values are but one of the comparison tools in valuation matters. In this particular case Mr Boyd's sheep area value advice to Mr Crombie for submission to the Court apparently ignored other factors which affect value such as for example the location and access available to "Pialaway" and "Drumlion". [245] Mr Crombie's evidence as to the economic difficulties involved in development of a small block is accepted. However the fact is that if a market exists for small blocks regardless of whether they provide additional areas to other holdings, that market cannot be ignored when small blocks are subject of individual valuation. [246] It is recognised that in this particular case management difficulties are caused by the distance between "Lucella" and the "Drumlion" aggregation. However that cannot be a consideration when, pursuant to the Valuation of Land Act a separate valuation must issue -- 56 of 72 -- 57 when individual properties are held under differing ownership (Mr Crombie singly in the case of "Lucella" while the "Drumlion" aggregation is jointly owned). [247] This was another case where reductions in the 1998 valuation had created, in Mr Taylor's professional opinion, a relativity problem in comparison with those valuations which had not been similarly treated. He set out to correct the relativity by manually adjusting this relevant valuation. In this case according to the evidence an increase of 73% above the reduced 1998 valuation had resulted. The valuation history as provided in the Boyd statement indicates that the 1996 valuation was $113,000, a valuation which was maintained as first issued in 1998 then reduced to $106,000 before the further "pre-court" reduction to $91,000. Conclusions and Finding [248] The valuation which the appellant seeks is approximately the amount to which the 1998 valuation was first reduced. I have not accepted the general thrust of the evidence in the statement prepared by Mr Boyd for Mr Fawckner in his appeal that unimproved values in this locality had not been shown to have increased from those applied in 1996. I have accepted that the sales relied on by Mr Taylor support a 50% increase in the values applied to those sale properties in 1998. [249] In this case, I have been influenced by Mr Crombie's evidence to accept that some further fine-tuning of relativities is warranted based on a direct comparison with the values applied to the individual blocks in the "Bonnie Downs" aggregation. I have concluded that a per ha valuation slightly less than that applied to "Luckham" is warranted and will adopt a valuation of $152,500 rounded from $21.80/ha overall. Order The appeal is allowed, the valuation made by the chief executive is set aside and the unimproved value as at 1 October 2001 determined in the amount of One Hundred and Fifty-two Thousand Five Hundred Dollars ($152,500). -- 57 of 72 -- 58 [250] Appeal Reference/Owner: AV2002/0453 - John G and Michael J Sheales Property: "Glenullin" Real Property Description: Lot 2 on C22831 and Lot 6 on CM79, Parish of Glenullin Area: 8,176.689 ha Local Government: Aramac Shire Council Valuation Appealed Against: $187,500 - evidence was led to a valuation of $182,500 ($22.32/ha with allowance for Prickly Acacia infestation). Owner's Estimate of Value: $101,000 (Notice of Appeal) - evidence was led to a valuation of $116,520 ($14.20/ha with allowance for Prickly Acacia). Situation and Access: About 105 km north-east of Winton in the western extremity of Aramac Shire, via Aldingham Road, 8 km bitumen then formed earth. Nature of Country [251] By Mr Taylor: Open to moderately shaded downs with Whitewood and Vinetree shade. The best shade is in the northern half and south-eastern part with large open areas throughout. The south-western part has scattered shade only. Approximately 1,140 ha of the property is affected by Prickly Acacia infestation. This affects approximately 14% of the property allowing a reduction of 2.5% off the valuation. Carrying Capacity: One sheep to 1.6 ha [252] The appellants did not attend the hearing, being represented by Mr Fawckner. He tendered an unsigned statement prepared by one of the Sheales' family which dealt with the whole of the "Mahrigong" aggregation including "Glenullin". Also tendered by Mr Fawckner were statements prepared by Mr Boyd for the appellants covering each part of the overall aggregation. The first statement accepted that there was an area of 1,100 ha covered heavily with mature Prickly Acacia but made reference to a similar area of scattered mature trees and that annual spraying of regrowth is necessary over the whole of the aggregation. [253] Reference was also made to the claypans and flooded swamp country associated with "three water systems" commencing in the aggregation; the lack of permanent natural surface water and the poor quality of sub-artesian water. -- 58 of 72 -- 59 [254] The country on the overall aggregation was described in the Sheales' statement as consisting of open Mitchell grass downs with large areas of loose country with some pebbly ridges. The country is sparsely shaded by Vinetree and Whitewood with large areas of no shade. [255] the Boyd/Sheales' statement made reference to this individual block being landlocked with no obvious allowance for that having been made. It was suggested that the allowance for Prickly Acacia infestation was inconsistent with allowances made on other properties. Evidence of Value [256] Mr Taylor, consistent with the evidence in the "Bonnie Downs", "Eyriewald" and "Orielton" appeals, amongst others, relied on the sale of "Luckham" as the most comparable evidence with the sales of "Leebrook", "Roseberry Downs" and "Tandarra" supporting a 50% increase where the 1998 valuations were considered to reflect correct relativity one to another. [257] The standard criticism of Mr Taylor's comparison of the appeal properties generally with "Luckham" as to in particular, location and access and in this case suggested inferiority of country, despite historically similar departmental estimates of carrying capacity. Conclusions and Finding [258] No real weight can be given to the appellants' statements as Mr Fawckner was unable to do more than tender them and no effective cross-examination was possible where disagreement was indicated with Mr Taylor's reports. Mr Taylor was available for examination as to his opinions and valuation methodology in matters such as the allowance made for Prickly Acacia infestation. [259] Where his evidence was unchallenged in examination it is accepted. His primary basis for this valuation was clearly the application of a 50% increase based on sales evidence which he regarded as reliable but to manually adjust the valuations where relativity had been considered to be incorrect. [260] In these matters, it seems to me that having given close consideration to the "Bonnie Downs" appeal in which extensive written and oral evidence was available for examination it is reasonable for the Court to fine-tune relativities of the valuations of properties in the locality of "Bonnie Downs". Some challenge has been made to the existing relativities and Mr Taylor's reports and oral evidence leave some doubt as to the position with which individual relativities have evolved. [261] Having decided that the valuations of the "Bonnie Downs" aggregation have not been proved wrong and not being convinced that the "Mahrigong" aggregation individual -- 59 of 72 -- 60 blocks including "Glenullin" are at least any superior, I have decided to reduce the "Mahrigong" valuations to the equivalent overall rate per ha as the individual "Bonnie Downs" blocks ($21.90/ha) before the specific allowance in this case for the Prickly Acacia infestation. [262] The valuation of "Glenullin" will therefore be determined as follows: 8,176.689 ha @ $21.90/ha $179,069 Less allowance for Prickly Acacia infestation 2½% $4,477 $174,592 Rounded to $175,000 Order The appeal is allowed. The valuation made by the chief executive is set aside and the unimproved value as at 1 October 2001 determined in the amount of One Hundred and Seventy-five Thousand Dollars ($175,000). -- 60 of 72 -- 61 [263] Appeal Reference/Owner: AV2002/0454 - Gerald L and Elizabeth C Sheales Property: Part of "Mahrigong" Real Property Description: Lot 1 on CM14, Parish of Apex. Area: 2,460.084 ha Local Government: Aramac Shire Council Valuation Appealed Against: $56,000 (rounded from $22.75/ha). Owner's Estimate of Value: $33,000 (Notice of Appeal) - evidence was led to a valuation of $37,640 ($15.30/ha). Situation and Access: About 103 km by road north-east of Winton, 8 km of bitumen balance formed earth or 188 km from Longreach via 110 km of bitumen, then formed earth. Nature of Country [264] By Mr Taylor: Open to moderately shaded downs with scattered shade only in the southern end. The shade consists of Whitewood and Vinetree. [265] Mr Fawckner tendered the unsigned Sheales' statement in relation to the total aggregation and a statement prepared by Mr Boyd for the appellants. Reference was made to "the swamp country along the waterways" which is rank and useless (244 ha) which was not mentioned in Mr Taylor's report and the need for water to be brought from the adjoining block. Evidence of Value [266] Similar to the previous matter. There was an assumption in the Boyd/Sheales' statement that some small premium had been added to the valuation because of its small size, in comparison with the "Luckham" sale. Conclusion and Finding [267] There was no confirmation by Mr Taylor that any premium had been added for size in this instance. It is observed that the valuation is slightly less per ha than the base rate applied to the larger blocks within the aggregation. A separate valuation of this block is required pursuant to the Valuation of Land Act because it is in Aramac Shire while the balance of the land in the same specific ownership is within Winton Shire. [268] For reasons given in the preceding matter a valuation of $21.90/ha will be adopted as part of the overall aggregation, resulting in a valuation reduced to a rounded $54,000. -- 61 of 72 -- 62 Order The appeal is allowed. The valuation made by the chief executive is set aside and the unimproved value as at 1 October 2001 determined in the amount of Fifty-four Thousand Dollars ($54,000). -- 62 of 72 -- 63 [269] Appeal Reference/Owner: AV2002/0455 - Gerald L and Elizabeth C Sheales Property: "Mahrigong" Real Property Description: Lot s 15 and 16 on C22877, Parish of Apex. Area: 16,185.4022 ha Local Government: Winton Shire Council Valuation Appealed Against: $370,000 (rounded from $22.90/ha). Owner's Estimate of Value: $218,500 (Notice of Appeal) - evidence was led to a valuation of $247,630 ($15.30/ha). Situation and Access: 87 km north-east of Winton adjoining the western extremity of Aramac Shire, 10 km bitumen balance formed earth via Aldingham Road. Nature of Country [270] Apparently as an oversight Mr Taylor did not include in his written report a description under this heading and it is necessary to refer to the property plan within the report. That plan indicates that about the western third of this block is within a "shade line" the northern part of which, in Jessamine and part of Vickers Paddocks, was broadly described as undulating open downs, moderately shaded with Whitewood and Vinetree, generally firm soils. Then in the Rose Creek Paddock southerly of an area of creek channels, undulating open downs with areas of Whitewood and Vinetree shade. Stony areas on tops of ridges. Generally the majority of the block easterly of the shade line being part of Vickers, Macalister, No. 16, New Bore, Big Well, Blackwell and Dry paddocks was broadly described as "scattered to shadeless downs, tending loose in parts" with "Whitewood and Vinetree in parts". Areas of creek channels were shown. The carrying capacity was estimated as one sheep to 1.6 ha. [271] The statements tendered by Mr Fawckner were relevant to this and the preceding two appeals. In the Boyd/Sheales' statement it was suggested that the Department's description of the country at an earlier time had been "generally lightly shaded to open Whitewood and Vinetree downs with areas of loose country, some coolibah along creeks." [272] At that same time, the owners' description had been 95% open loose downs and 5% creek channels and claypans, but it had been accepted that the historical estimate of carrying capacity of one sheep to 1.6 ha could be adopted for relativity purposes. [273] Also tendered through Mr Fawckner were a series of photographs said to have been taken by Mrs Sheales. They were accompanied by a plan indicating the direction in which they -- 63 of 72 -- 64 were taken from identified positions. The difficulty with photography in these expansive areas is that whilst not intentionally selective, those of the landscape tend to show a relatively small part of the bigger picture. As an example photos 2 (Jessamine Paddock) and 9 are taken from points within and facing the western section of the area within the shade line plotted by Mr Taylor and shown as containing moderate shade. The photographs are noted as depicting "shadeless" country. Mr Taylor's oral evidence included the following: "That area there which is in Jessamine and Vickers Paddocks, that was, in Mr Sheales' opinion, the best shaded part of the property and after the inspection or during the inspection when we were going through that part of it, we both agreed on that. That's why it's termed moderately shaded. There are more trees there than probably anywhere else in the whole aggregation." [274] Clearly the description of the degree of available shade in open downs country is subjective. Other photographs showed loose soil and shadeless areas in No. 16 Paddock and as described by Mr Taylor, while others showed dead Mitchell grass and the presence of tick weed as is commonly occurring in the very dry season which was being experienced. Evidence of Value [275] Mr Taylor relied on the same evidence as for the preceding appeals while in the Boyd/Sheales' statement there was the standard criticism of Mr Taylor's comparison of "Mahrigong" with the most comparable sale "Luckham". Either the appellants or Mr Boyd found it "difficult to reconcile how the valuation of 'Mahrigong' could be superior to 'Luckham'. In 1998 'Luckham' was valued 5% less than 'Mahrigong' and I submit this is a perfect example of how an error can be perpetuated." [276] It is observed that the valuation applied to "Luckham" in 2001 bears near the same relativity with the valuation of this block as was the case in 1998, any difference no doubt caused by the rounding process. It is therefore a "perfect example" of the previous relativity between "Luckham" and this block having been maintained. The argument is of course that "Mahrigong" is inferior to "Luckham" and if there was a relativity error in 1998 it is maintained in 2001. [277] Contained in the Boyd/Sheales' statement is the comment - "This parcel of land is definitely inferior to 'Bonnie Downs' and 'Eyriewald' ..." While in Mr Fawckner's appeal he accepted that relativity between the 2001 valuations in the general locality was reasonably fair he did not dispute this comment, in this appeal. -- 64 of 72 -- 65 Conclusions and Finding [278] For reasons given in the preceding Sheales' appeals I have decided to reduce the overall valuation per ha to the same level as the individual blocks of "Bonnie Downs". That will result in this valuation being determined in the amount of $355,000 rounded from $21.90/ha. Order The appeal is allowed. The valuation made by the chief executive set aside and the unimproved value as at 1 October 2001 determined in the amount of Three Hundred and Fifty-five Thousand Dollars ($355,000). -- 65 of 72 -- 66 [279] Appeal Reference/Owner: AV2002/0452 and RV2002/0451 - Ian R Elliott Property: "Eskdale" Real Property Description: Lot 4 on CM811983:GHPL23/16738, Parish of Inverness. Area: 13,000 ha Local Government: Winton Shire Council Valuations Appealed Against: $290,000 ($22.30/ha) for both Rating and Leasehold Rent Purposes. Owner's Estimate of Value: $175,000 (Notice of Appeal) - evidence was led to a valuation of $198,900 ($15.30/ha). Situation and Access: 139 km north-east of Winton, via 59 km bitumen Winton-Hughenden Road, balance earth formed Olio- Muttaburra Road or 107 km via 10 km bitumen and balance earth formed Aldingham Road. Nature of Country [280] By Mr Taylor: 10,750 ha (83%) open to moderately shaded downs generally firm soils with areas tending loose, Whitewood and Vinetree shade. 2,250 ha (17%) channels of Culloden and associated creeks. Shaded with Coolibah throughout. Carrying Capacity: One sheep to 1.6 ha. [281] Mr Elliott attended the hearing and through him was tendered a statement which contained the following: The country consists of open Mitchell grass downs, sparsely shaded by Vinetree and Whitewood with big areas of shadeless downs. 'Eskdale' is dissected by four creek systems, Eskdale, Kennedy, Station and Culloden Creeks, these systems have extensive claypans and large areas with Bull Mitchell. There are large areas of loose ashy soils on the watershed of Eskdale and Kennedy Creeks and smaller areas north and south of Culloden Creek and west of Kennedy Creek. There are large areas of Red Beard grass over a vast amount of country north and south of Culloden Creek and extends up along Eskdale and Kennedy Creeks. [282] Another statement prepared for Mr Elliott by Mr Boyd contained another description of the country which suggested that there was an area of 2,025 ha of claypans along the creeks and approximately 3,240 ha of loose ashy country. However the statement also adopted the historical departmental estimate of carrying capacity at one sheep to 1.6 ha. That was accepted as being for relativity comparisons when in fact Mr Elliott believed a -- 66 of 72 -- 67 carrying capacity of one sheep to 1.8 ha would have been more realistic over the last decade and then difficult to maintain on the average, even including the use of the road reserve over which he said he had a permit to occupy. [283] Another of Mr Elliott's concerns was the fact that due to having run out of stock water on three occasions since 1994 when he had to rely on neighbours for assistance, he had found it necessary to spend $180,000 on an artesian bore to a depth of about 1,000 metres and the associated infrastructure. He accepted that a neighbouring property such as "Bonnie Downs" would have had similar problems if artesian water had not been accessed probably at about the same depth. However he pointed out that cheaper and better supplies were available to the east and the nearby "Orielton" had accessed artesian water at a lesser depth, while to the south and further west of "Bonnie Downs" it was necessary to drill even deeper due to a fault line in the basin. Evidence of Value [284] Again Mr Taylor replied principally on the sale of "Luckham" as the best comparison with the level of increase supported by the sales of "Leebrook", "Roseberry Downs" and "Tandarra". Similarly as in the other relevant appeals there was criticism of Mr Taylor's comparison of the subject property with "Luckham". There was also criticism of an assumption that no allowance had been made for the severance of the property by the Olio-Muttaburra Road. Conclusion and Finding [285] I have not been persuaded that the road "severance" would be a concern in the marketplace, particularly as it appears that grazing use is made of the road reserve. The only doubt which presents itself in this matter is why the value per ha is slightly higher than "Bonnie Downs", the valuation of which was not found to be wrong. In the Boyd/Elliott statement it was suggested that this valuation "has to be less" than "Bonnie Downs" and "Lucella". Mr Fawckner who assisted Mr Elliott in this matter seemed to accept that comment. [286] There seems to be some local differences of opinion as to whether the negative features of the channel country outweigh any positive features. For example, Mr Crombie saw "Lucella" disadvantaged by the lack of more than a single channel system and little flood- out country. "Eskdale" clearly has greater than the normal area of channels, but I find it difficult to accept that the area of actual claypan is as extensive as suggested in the Boyd/Elliott statement. [287] In resolving doubts in favour of the appellant and with consideration to the valuation of the individual blocks in the "Bonnie Downs" aggregation I will adopt a slightly reduced -- 67 of 72 -- 68 valuation of $21.90/ha overall with a rounded valuation of $285,000 for both rating and leasehold rent purposes. Order The appeals are allowed. The valuations made by the chief executive are set aside and the unimproved value as at 1 October 2001 determined in the amount of Two Hundred and Eighty-five Thousand Dollars ($285,000). -- 68 of 72 -- 69 [288] Appeal Reference/Owner: AV2002/0148 and RV2002/0149 - Stephen E Elliot Property: "Bengal" Real Property Description: Lot 6 on CM21:GHPL29/11299, Parish of Bangall. Area: 10,906.279 ha Local Government: Aramac Shire Council Valuations Appealed Against: $247,500 (rounded from $22.70/ha) for both Rating and Leasehold Rent Purposes. Owner's Estimate of Value: $165,000 (Notice of Appeal) - evidence was led to a valuation of $166,860 ($15.30/ha). Situation and Access: About 145 km north-west of Longreach via Longreach- Muttaburra Road then the Kensington Road, 40 km of bitumen the balance formed earth. Nature of Country [289] By Mr Taylor: 100% downs - moderately shaded with Whitewood and Vinetree running to a lightly shaded area in the south-western corner. There is some ashy country in the north-eastern and north-western corners. Includes 814 ha channels of Fisher and other creeks. Carrying Capacity: One sheep to 1.6 ha. [290] Mr Fawckner gave brief evidence on behalf of Mr Elliot and tendered Mr Elliot's personal unsigned statement and another statement prepared by Mr Boyd for adoption by Mr Elliot. [291] The first statement contained the following: "Bengal" consists of open Mitchell grass downs, lightly to sparsely shaded with Vinetree and Whitewood. The property is dissected by Fisher and Scots Creeks and systems have extensive claypans and Bull Mitchell areas associated with flood areas. There are large areas of loose ashy soils that extend both sides of Fisher Creek. [292] Mr Fawckner said that Mr Elliot had asked him to point out that there was "a little bit more ashy downs than the valuer actually wrote on the map" and on both sides of Fisher Creek. [293] In the Boyd/Elliot statement there was a suggestion that a past departmental description of the property included a reference to stony ridge tops and that a previous valuer had estimated the carrying capacity as one sheep to 1.8 ha but that the appellant was -- 69 of 72 -- 70 "comfortable" with one sheep to 1.6 ha "for relativity purposes". Reference was also made to "a real water problem" on "Bengal". Evidence of Value [294] Consistently with most of this group of appeals Mr Taylor found the sale of "Luckham" to be the most comparable with the sales of "Leebrook", "Roseberry Downs" and "Tandarra" supporting the 50% increase which had been applied generally throughout this locality of downs country. In this case there had been no appeal against the 1998 valuation and the general 50% increase had been applied. [295] In the Boyd/Elliot statement it was suggested that "if the owners of 'Bengal' would have appealed the 1998 valuation it would have been reduced to a level around the $13/ha mark." It is assumed that the basis of the Boyd/Elliot estimate of value at $15.30/ha was intended to be about 20% above the levels to which other valuations had been reduced as at 1998. [296] There was the standard valid criticism of Mr Taylor's comparison of the location and access of "Luckham" in comparison with "Bengal". It was accepted however that "Bengal" "is more related to the Winton market than the Aramac market". Conclusions and Findings [297] Again the only doubt which has been created is the lack of exposed reasoning, other than Mr Taylor's adoption of the previous relativity, for the difference in valuation between this block and others in the same general locality with generally similar descriptions. I have found that some valuations appear to require some fine-tuning in relation to the valuation of "Bonnie Downs". [298] For consistency I will reduce this valuation to a level of $22/ha similar generally to that applied by Mr Taylor to the individual "Bonnie Downs" blocks. That will result in a rounded valuation of $240,000. Order Both appeals are allowed. The unimproved valuations made by the chief executive are set aside and the unimproved value as at 1 October 2001 determined in the amount of Two Hundred and Forty Thousand Dollars ($240,000) for both rating and leasehold rent purposes. RE WENCK MEMBER OF THE LAND COURT -- 70 of 72 -- ANNEXURE SUMMARY OF ORDERS REFERENCE APPELLANT/S EFFECT OF ORDER PAGE REF. AV2002/0238 RD Fawckner Appeal dismissed. Valuation of $560,000 ($21.40/ha) affirmed. 19 RV2002/0239 RD Fawckner Appeal dismissed. Valuation of $215,000 ($21.90/ha) affirmed. 20 RV2002/0240 RD Fawckner Appeal dismissed. Valuation of $355,000 ($21.90/ha) affirmed. 22 AV2002/0390 MS Robertson Appeal allowed. Valuation of $790,000 reduced to $675,000 ($19.75/ha). 26 RV2002/0387 MS Robertson Appeal allowed. Valuation of $270,000 reduced to $230,000 ($20.50/ha). 28 RV2002/0388 MS Robertson Appeal allowed. Valuation of $270,000 reduced to $247,500 ($22/ha). 29 RV2002/0389 MS Robertson Appeal allowed. Valuation of $247,500 reduced to $215,000 ($21/ha) 30 AV2002/0468 IJM & PJ Mitchell Appeal allowed. Valuation of $570,000 reduced to $522,500 ($21.60/ha) 33 RV2002/0469 IJM & PJ Mitchell Appeal allowed. Valuation of $46,000 reduced to $43,500 ($22/ha) 34 RV2002/0470 IJM & PJ Mitchell Appeal allowed. Valuation of $330,000 reduced to $310,000 ($22/ha) 35 RV2002/0471 IJM & PJ Mitchell Appeal allowed. Valuation of $190,000 reduced to $178,000 ($22/ha) 36 AV2002/0476 IJM & PJ Mitchell Appeal dismissed. Valuation of $212,500 ($28.50/ha) affirmed. 39 -- 71 of 72 -- 2 REFERENCE APPELLANT/S EFFECT OF ORDER PAGE REF. RV2002/0477 IJM & PJ Mitchell Appeal dismissed. Valuation of $197,500 ($28.40/ha) affirmed. 40 RV2002/0478 IJM & PJ Mitchell Appeal dismissed. Valuation of $21,500 ($41.60/ha) affirmed. 41 AV2002/0479 HM Elliott and DJ Kojrowicz Appeal allowed. Valuation of $325,000 reduced to $285,000 ($37.50/ha less 12½% allowance for Prickly Acacia infestation). 44 AV2002/0474 and RV2002/0475 DJ Kojrowicz Appeals allowed. Valuations of $207,500 reduced to $200,000 ($18.50/ha). 47 AV2002/0472 and RV2002/0473 RE Kelly Appeals allowed. Valuations of $290,000 reduced to $277,500 ($19.50/ha). 49 AV2002/0302 and RV2002/0303 PJ & O Crombie Appeal AV2002/0302 against valuation of $165,000 ($20/ha) dismissed. Appeal RV2002/0303 allowed for consistency and valuation for rent purposes reduced to $165,000. 52 AV2002/0304 PJ & O Crombie Appeal dismissed. Valuation of $167,500 ($20/ha) affirmed. 54 AV2002/0305 PJ Crombie Appeal allowed. Valuation of $157,500 reduced to $152,500 ($21.80/ha). 57 AV2002/0453 JG & MJ Sheales Appeal allowed. Valuation of $187,500 reduced to $175,000 ($21.90/ha less allowance for Prickly Acacia infestation). 60 AV2002/0454 GL & EC Sheales Appeal allowed. Valuation of $56,000 reduced to $54,000 ($21.90/ha). 62 AV2002/0455 GL & EC Sheales Appeal allowed. Valuation of $370,000 reduced to $355,000 ($21.90/ha). 65 AV2002/0452 and RV2002/0451 IR Elliott Appeal allowed. Valuations of $290,000 reduced to $285,000 ($21.90/ha) 68 AV2002/0148 and RV2002/0149 SE Elliot Appeal allowed. Valuations of $247,500 reduced to $240,000 ($22/ha) 70 -- 72 of 72 --