Davies v Chief Executive, Department of Natural Resources [2000] QLC 21

LAND COURT BRISBANE 6 APRIL 2000 Re: Appeals against Annual Valuations Valuation of Land Act 1944 Valuation Roll Nos.: 1926 and 2544/50000 Local Government: Crows Nest Jack B Davies (AV99-1187) and Jack B and Doris A Davies (AV99-1188) v. Chief Executive, Department of Natural Resources (Hearing at Toowoomba) D E C I S I O N Background: These matters relate to two parcels at Lane Road, Kleinton (AV99-1187), and Gomoran-Douglas Road, Douglas (AV99-1188). The parcel at Lane Road has an area of 64.75 ha, and is described as Lot 627 on Plan A34468, Parish of Geham. The parcel at Gomoran-Douglas Road, has an area of 55.75 ha, and is described as Lot 3 on RP 190838, Parish of Goombungee. The subject land at Lane Road (Lot 627 - AV99-1187) is zoned "Rural B", and the subject land at Gomoran-Douglas Road (Lot 3 - AV99-1188) is zoned as "Rural A", both under the Town Plan of the Crows Nest Shire of December 1992, and current at the date of valuations of 1 October 1998. The key issues for the Lane Road parcel are access to the subject land and comparison of sales. The key issues for the Gomoran-Douglas Road parcel are the impact of flooding, noise from aircraft and comparison of sales. On 29 March 1999 the Chief Executive issued valuations of the subject lands at Lane Road ($37,500) and Gomoran-Douglas Road ($28,500). Following objections the Chief Executive confirmed those unimproved values on 28 July 1999. The appellants have now appealed those figures, claiming the unimproved values should more properly be $32,500 (Lane Road) and $25,000 (Gomoran-Douglas Road). Mr JB Davies represented and gave evidence for the appellants. Mr D Tannock, senior valuer represented the respondent, calling evidence from David John Hobbs, the departmental registered valuer responsible for determining the valuations. [2000] QLC 21 -- 1 of 5 -- 2 The Evidence: (1) The Nature of the Lands - (A) Lane Road - The subject land is located about 25 km north-west of Toowoomba, and close to the Cooby Dam. Access is via Cooby Dam Road, which is bitumen sealed, and then by Lane Road, which is a formed gravel and earth road, for about 2 km to the subject land. There is a steep hill at the western end of Lane Road, which is very difficult to traverse in wet weather. Access is generally restricted to four-wheel drive vehicles, owned by several owners who reside upon parcels to the north of the subject land in Lane Road. Electricity and telephone are available. The subject land comprises moderately sloping to steep forest ridges with narrow-leaf ironbark, and has been selectively cleared for grazing purposes. There are two gully dams and the land is used for the grazing of cattle and has been accepted as being used, in conjunction with other lands, for the purpose of farming (grazing) under s.17 of the Valuation of Land Act. It is agreed by both parties that the subject land is good grazing land, with views of Cooby Dam, and the only difference between the parties is the level of difficulty associated with regular access along Lane Road. Mr Davies argues that he is advised that Lane Road can be cut by rising creek flooding for extended periods, causing major problems for moving of cattle into and out of the subject land. Mr Davies argues that repeated requests to the Crows Nest Shire Council (the Council) have so far failed to obtain any upgrade of the road. Mr Davies further argues that those difficulties with access would influence the value of the subject land. Mr Hobbs concedes that access can be difficult, but argues that those difficulties existed when the appellants purchased the subject land in 1997. Mr Davies claims that the Council has indicated to him that an application to erect a dwelling upon the subject land was likely to be refused, in view of the access difficulties. Mr Hobbs rejects that conclusion, as he notes that another owner has recently built a new dwelling in the immediate area in Lane Road. (B) Gomoran-Douglas Road The subject land on Gomoran Creek comprises creek flats, extending to moderately sloping hills, which were originally timbered with ironbark, gum-top box and apple. About 15 ha of the creek flats have been cleared and cultivated, and the balance is grazing land. The subject land is generally cleared for grazing with selected mature trees for shade. The land has been valued for farming (grazing) purposes under s.17 of the act. -- 2 of 5 -- 3 Mr Davies argues that the fences across Gomoran Creek at four points, are regularly destroyed by flooding of the creek, requiring regular repairs. He also argues that his stock is impacted by noise from overhead helicopters from the Oakey Aviation Base, which can cause stock losses, as well as impact from dingoes. However, Mr Davies concedes that the surrounding lands are similarly impacted. Mr Hobbs concedes that damage to fencing near Gomoran Creek would occur, but argues those costs are more than compensated for by the approximate 1.5 km of a steady flow creek passing across the land. While Mr Davies notes that there appeared to be some increase in the brackish nature of the water, he concedes that his cattle continue to drink the water without any adverse impact. Mr Davies also agrees that the subject land is good grazing land with access to water. However, Mr Davies differentiates the subject land from lands to the west of Gomoran-Douglas Road, which was recently purchased as an improved property for the rearing of goats. Mr Hobbs has drawn no comparison with that sale, which was not used as a basis in either of the last two revaluations. (2) Comparison of Sales - Mr Davies supplies no evidence of sales to support his estimates of the values of the subject lands. Mr Hobbs supplies the following common sales for each of the subject land comparisons; which he argues are typical of other sales in the area:  Sale 1 - (Lot 7 on AG99 and Lot 12 on RP 895305). This is a 188.46 ha parcel located about 35 km north-west of Toowoomba. Access is via Goombungee-Meringandan Road, which is bitumen sealed. The sale comprises 95 ha of alluvial brown soil creek flats, and 93.5 ha of box hill grazing. The sale is used for mixed farming and grazing, with adequate stock and domestic water. The sale has better access, and overall superior country, with greater carrying capacity than either of the subject lands. The sale is not seen as directly comparable to the Lane Road land, but is seen as overall superior to the Gomoran Creek property, due to its greater arable lands. The sale was used as a benchmark for the Crows Nest and Rosalie Shires, and together with other sales in the locality, indicate a 15% increase in primary production values. The sale sold in August 1998 for $475,000, which was analysed as unimproved land at $141,544 ($751 per ha) and applied at $138,000 ($732 per ha - 97%).  Sale 2 - (Lot 136 on CSH1861 and Lot 135 on CSH1862). This is a 130.89 ha parcel located on Djuan-Haden Road, which is bitumen sealed. The sale is not seen as comparable to either subject lands, but was used as a benchmark for primary production purposes in the locality, and which showed an increase of 15% for that purpose. The sale comprises -- 3 of 5 -- 4 moderately sloping scrub forest grazing land and has stock and domestic bores for water. The sale sold in August 1998 for $175,000, which was analysed as unimproved land at $71,606 ($545 per ha), and applied at $67,000 ($512 per ha - 94%). Based upon those comparisons, the respondent, allowing for location and type of country, has valued the subject land as follows -  Lane Road - 64.75 ha @ $580/ha $37,500  Gomoran Creek - 55.75 ha @ $510/ha $28,500 Decision: Before analysing the evidence supplied, I note that what would appear to be fundamental to the concerns of the appellants in these matters, is a lack of confidence in the actions of the Council, and its response to approaches by Mr Davies for certain assistance. Mr Davies clearly feels that the Council has been other than helpful in improving access along Lane Road, and Mr Davies, accordingly, resents any further increases in rates paid to the Council under those circumstances. Mr Davies is also aware that it is the role of the respondent in this matter only to determine the unimproved value of the lands, while the Council is separately charged with demanding any rates charges due. Those are two entirely different functions, which are established by law, and the level of rates due to the Council is not a matter for this Court. In respect of the difficulties of access along Lane Road, the evidence would suggest that Mr Hobbs was aware of that problem, and has allowed for it in his determination of the value for grazing purposes. Because of the spasmodic nature of the need to transport cattle from the grazing enterprise, he believes due allowance has been made. In respect of the use of the land, I also find that the occupation of dwellings on other properties along Lane Road, would support Mr Hobbs' opinion that a dwelling upon the subject land would be possible, should it subsequently be needed. I see no need for a further reduction in the value for that purpose, bearing in mind the existing use of the land for grazing purposes by the appellants in conjunction with other lands. That then leaves the method of valuation adopted by the respondent, and whether that approach is consistent with principles accepted by the Courts. The appellants offer no comparisons, arguing that there should be no change in the values. In his adoption of sales of lands used for grazing purposes, Mr Hobbs has followed the well-established principle of comparing like with like, and particularly comparing -- 4 of 5 -- 5 either vacant lands, or lands that have been lightly improved. (See PH Clough v. The Valuer-General (1981-82) 8 QLCR 70, at 76; and also R & MM Barnwell v. The Valuer-General (1990-91) 13 QLCR 13, at 17; and also followed by the Land Appeal Court in Hans and Else Grahn v. The Valuer-General [1992-93] 14 QLCR 327, at 328.) While his Sale 2 is recognised as not directly comparable with either subject land, that sale is used to demonstrate a rise of 15% in the general market for lands used for primary industry purposes such as grazing. Sale 1 is also used as a benchmark for similar purposes, but is noted to be superior to the Gomoran Creek property. On the evidence there is nothing to discredit Mr Hobbs' conclusions in respect of his method, or the valuations determined. While I am aware that the appellants feel aggrieved that their protestations to the Council would appear to have gone unheeded, that is not grounds in this matter, and must be addressed in another place. In seeking to understand the appellants' responsibility in the current matter, I am reminded that the onus to prove his case falls upon the appellant under s.45(4) of the Valuation of Land Act, which states: "45(4) Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner." I am also reminded that s.33 of the Act states: "33. 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." In the absence of evidence to the contrary, I must conclude that the Chief Executive has exercised his responsibility correctly, and that the valuations so determined are fair and reasonable. Conclusion Having considered the whole of the evidence, I am not persuaded that the appellants have proved their cases. The appeals are both dismissed, and the unimproved values of Lot 627 on Plan A34468 (AV99-1187) at $37,500; and the unimproved value of Lot 3 on RP 190838 (AV99-1188) at $28,500, are both affirmed. NG DIVETT MEMBER OF THE LAND COURT -- 5 of 5 --