Babington v Chief Executive, Department of Natural Resources and Mines [2004] QLC 23

LAND COURT OF QUEENSLAND CITATION: Babington v Chief Executive, Department of Natural Resources and Mines [2004] QLC 23 PARTIES: WB Babington (applicant) v. Chief Executive, Department of Natural Resources and Mines (respondent) FILE NO: AV2002/0445 DIVISION: Land Court of Queensland PROCEEDING: An Appeal against an Unimproved Valuation - Shire of Inglewood DELIVERED ON: 2 April 2004 DELIVERED AT: Brisbane HEARD AT: Inglewood MEMBER Mr RE Wenck ORDER: The appeal is dismissed and the unimproved valuation of the chief executive in the amount of One Hundred and Twenty-three Thousand Dollars as at 1 October 2001 affirmed. CATCHWORDS: Statutory Valuation - Valuation of Land Act 1944 - Unimproved value - effect of notice to reduce dust on unimproved value of arable land APPEARANCES: Mr WG Major as agent for the applicant Mr K Fisher, Crown Law for the respondent [1] This is an appeal against the chief executive's unimproved valuation as at 1 October 2001 of land described as Lots 2, 17, 175, 241, 258-259 on Plan CLV3483 and Lot 1 on Registered Plan 113651, Parish of Inglewood, County of Clive, containing an area of -- 1 of 6 -- 2 451.6 ha. The valuation appealed against is in the amount of $123,000. Under the Inglewood Shire Town Planning Scheme the land was zoned "Rural" at the relevant date. [2] The property is known as "Turners Flat" and is located about 3 km west of the Inglewood Post Office, via the bitumen sealed Cunningham Highway. The highway traverses the property causing northern and southern severance areas. The all-weather gravel Bybera Road is constructed along the western boundary. [3] The northern severance has an extensive frontage to Macintyre Brook and at the date relevant to the valuation water licences with a nominal annual allocation of 600 megalitres attached to the land. The evidence was that subsequent to the date of valuation, part of the land (an area of about 62.3 ha) had been sold, together with most, if not all of the water allocation under those licences. That transaction resulted in "split" valuations of the two parts at the same relevant date but effective from a later date, having been issued. Apparently no objections were lodged against those valuations. The valuation appealed against remains in force during the period between the relevant dates of effect. [4] The single ground of appeal was "Not all relevant factors taken into consideration." The estimate of unimproved value in the notice of appeal was $55,000. [5] Mr WG Major was appointed to act as agent for the applicant and gave evidence in support of the ground of appeal. In Mr Major's opinion the appropriate unimproved value which should be determined is $29/ha overall or $13,096. [6] The "relevant factors" referred to in the notice of appeal related to the alleged effect of the Council, despite apparent complaints by Mr Babington, having permitted a "family subdivision" of land adjoining the north-eastern corner of the northern severance of the subject land allowing the transfer of that land to the adjoining owners' son and his wife and then the construction thereon of a dwelling. [7] It is not clear from the evidence when the dwelling on that adjoining land was first constructed. It is observed that in part of the Council background information tendered by Mr Major in a document titled "Supplementary Information - Complaint - Family Subdivision" (part of Exhibit 9) reference was made to a Development Application Form dated 22 November 2002 for a subdivision "of approximately 4 ha". There was also an accompanying letter with that application and a "map showing the proposed area to be subdivided" and information regarding the extension of town water "to proposed house site" and the availability of power "close to where the house was intended to be placed". However in that same supplementary information there was reference to a development -- 2 of 6 -- 3 application having been approved at a meeting on 4 December 2000 and to questions raised by Mr Babington in correspondence dated 26 November and 21 December 2001. [8] Regardless of the date of construction, the Inglewood Shire Council had issued to Mr Babington on 24 August 2001 a "notice to reduce dust nuisance", with reference being made to "two complaints in recent days regarding the nuisance created by dust emanating from … 'Turners Flat'." Mr Babington was advised "to take notice and reduce the dust nuisance by considering factors such as wind conditions and how often you plough the parcel of land that borders with the "(neighbour's) property". He was further advised that cooperation in complying with the notice would "ensure that Council is not forced to take further action in accordance with the Environmental Protection Regulation 1998". [9] It was Mr Major's evidence that it has since been impossible to work the subject farm efficiently "as wind is mostly from a westerly direction". It was suggested that because the neighbour's house on the subdivided lot is right beside where Mr Babington has his pump in the river he has sold most of his irrigation allocation. Furthermore according to Mr Major, an approval to develop a winery and cellar door to service an established vineyard on "Turners Flat" related to a previously isolated site now immediately adjacent to the location of the neighbour's house. Mr Major believes that because the previous isolation of the proposed winery site, some 400 metres from the then nearest dwelling had been a factor favourably influencing that development approval, that potentiality has now been lost due to the probable effect on the neighbour's dwelling. He said there was no other suitable flood-free location available for a winery development on "Turners Flat". [10] There is clearly a very strained relationship between Mr Babington and his neighbours to the east and particularly the occupants of the dwelling. In the period leading up to the Council notice relating to dust it appears that the neighbours had complained to the police not only about dust from farming operations but noise and lights from night-time tractor work and noise and dust from late night vehicular-related activities on the main private access road to "Turners Flat" which passes in close proximity to the neighbour's residence. Apparently there had also been complaints to the Council about the use by fishermen guests of Mr Babington of a caravan which had been permanently sited in proximity to that neighbour's residence on the riverfront. The Council had warned Mr Babington that it was a contravention of Local Law No. 4 (Temporary Homes) to use the caravan without a permit which, even if one was obtained, would have effect only for a maximum period of six months. [11] Mr Major did not go as far as to suggest that "Turners Flat" had no farming potential since Mr Babington had been put on notice to reduce the dust nuisance. However his -- 3 of 6 -- 4 opinion as to the land being worth $29/ha overall had no exposed cogent basis and appeared to ignore any enhancement caused by the existence of the water licence allocation at the relevant date of valuation. [12] Mr DP Coe, Registered Valuer and a Senior Valuer employed by the chief executive gave evidence in support of the valuation appealed against. He had not been the valuer who had made the valuation but because that officer was unavailable, Mr Coe had personally inspected the subject property and reviewed the sales upon which the valuation had been based. [13] In Mr Coe's tendered report, the nature of the land was described as comprising alluvial sandy loams over reddish/brown clays originally timbered with poplar box and ironbark forest species associated with the Macintyre Brook flood plain. 299 ha (66%) of the property were classified as being of arable quality. In his oral evidence Mr Coe said that the irrigable component of the arable land was assessed on the basis that, on the average local farming standard, 11 megalitres of the annual allocated water would be required for one arable hectare. However, the unimproved values which would have been attributed to the irrigable arable component; the balance arable component or the area unsuited to cultivation were not identified. The property was said to have been valued "as a rural holding with access to a substantial irrigation water supply". The basis of valuation was obtained from two sales of developed going concern irrigation properties. The valuation of $123,000 is rounded from a rate overall of $272.50/ha. [14] The first sale on which Mr Coe relied was of the 204.265 ha property "Kamabooka" on the highway, 7 km west of the subject land. It sold in November 2000 for $1,371/ha improved with a 200 megalitre nominal water allocation from Macintyre Brook. The sale had been analysed to show an unimproved value of $190/ha and a valuation of $186/ha had been applied. In comparison with the subject land Mr Coe described the sale land as inferior in country type and quality of soils, with a smaller (29%) component of arable land and a relatively smaller irrigation allocation. [15] The second sale was of the 1,252 ha property "Carisbrooke" also on the highway and 4 km west of the subject land. It sold in March 1997 for $815/ha improved, with a 232 megalitre nominal water allocation from Macintyre Brook. This sale had been analysed to show an unimproved value of $156/ha overall and a valuation of $137.75/ha had been applied. In comparison with the subject land Mr Coe described this much larger parcel as inferior in country type and quality of soils with a smaller (30%) component of arable land and a relatively smaller irrigation allocation. -- 4 of 6 -- 5 [16] While he recognised the size differentials, it was Mr Major's opinion that the sale properties were not of inferior quality overall with regard to the nature of the country and soil types. He had not given specific consideration to the water allocation differentials as he had been concerned only with the land content. [17] Mr Coe did not see anything particularly unusual in that a house existed on an adjoining property in close proximity to the boundary. In his experience it was quite common for houses to be located close to farm boundaries when adjoining farm management practices would recognise the need for nuisance to neighbours to be avoided or mitigated against. In his opinion any difficulties caused by the location of the subject farm in close proximity to the environs of the town and adjacent residential usage were negated by the advantages of proximity to the town's amenities and services. As a consequence he could not agree with the opinion of Mr Major that the value of the subject land used for the purposes of farming should be discounted because of the existence of the dwelling and the history of complaints from the neighbours. The valuation had been made on the basis of the use of the subject land for purposes of farming, pursuant to s.17 of the Valuation of Land Act 1944 (the Act). The potential for any higher uses, if such potential existed, had been disregarded. Consequently if the approval for a winery/cellar door development had added value to the land, as Mr Major suggested, and that approval was now at risk due to the location of the neighbouring dwelling, the valuation having excluded any such potential in the first place, would remain unaffected. [18] The question which needs to be answered in this matter is whether the existence of the house on the adjoining property as at the date of valuation, the issue of the notice to reduce dust nuisance and the effect of those matters on efficient farm management practices on the subject property have caused the valuation made by the chief executive to be wrong. [19] The dispute between Mr Babington and his neighbours is apparently public knowledge and as Mr Major pointed out, if the property was to be offered for sale, the existence of the Council notice to reduce dust nuisance would need to be disclosed to an intending purchaser. I am able to accept that a prudent purchaser would have cause to be apprehensive about the history of complaints and would see the need to establish the real cause of those complaints. The manner in which any dust nuisance to the adjoining property was caused and any available practices which would overcome or reduce that nuisance would be relevant considerations. The effect of the notice on efficient farming practice is seen by Mr Major as significant but by Mr Coe as no more than one of the -- 5 of 6 -- 6 various factors which face practical farmers and of no real consequence at least to the potential and market value of the land. [20] It seems clear that Mr Babington's past farming practices have required modification under certain conditions and the need for such change is offensive to him. However, I am not persuaded that a prudent potential purchaser, viewing the situation from a fresh and practical perspective would consider the need for care in reducing a potential dust nuisance as more than a practical, and not abnormal, farming consideration. Such a purchaser might be inclined to attempt to take advantage of the dispute between the neighbours but the prudent vendor would be keen to show how the potential dust problem might be avoided rather than to portray a situation such as that envisaged by Mr Major where efficient farming of the land was denied. [21] It is observed from photographic evidence tendered by Mr Major, apparently as evidence of the dust which was caused by a ploughing operation of the relevant arable land bordering the neighbouring property, that under conditions which existed at the time the photographs were taken, the wind was not blowing from the west and no dust nuisance to the neighbour's land was being caused. However, Mr Major interpreted those photographs as suggesting that because westerly winds blowing towards the neighbour's property were more prevalent, efficient farming practice and an earlier ploughing operation on the subject land would not have allowed some weed growth, visible in the photographs to have become established. [22] The evidence of Mr Coe, including the fact that he had inspected the property in the company of Mr Babington is consistent with a conclusion that he has given full consideration to the factors relevant to the unimproved value of the land, and ground of appeal. This, together with his professional valuation experience in considering the effect of factors such as the proximity of dwellings adjacent to land used for purposes of farming is persuasive in my reaching a finding that, despite the conflict which has developed between neighbouring interests, the unimproved value of the subject land should not be discounted on the basis of the arguments raised by Mr Major. Order The appeal is dismissed and the unimproved valuation of the chief executive in the amount of One Hundred and Twenty-three Thousand Dollars ($123,000) as at 1 October 2001 affirmed. RE WENCK MEMBER OF THE LAND COURT -- 6 of 6 --