Byers & Anor v The Valuer-General [1992] QLC 259

- - . LAND COURT, BRISBANE. 19th June, 1992. Re: An appeal against a determination of the Valuer-General, Shire ofMulgrave. (AV91-1031) C.J. & C.L. By ers v. The Valuer-General (Hearing at Cairns) DECISION As at 31st March, 1990, the Valuer-General assessed the unimproved value of land described as Lot 2 on R.P. 747848, Parish of Bellenden Ker, situated at Boulders Road Babinda, in the sum of $59,000. An objection to that valuation was allowed and the unimproved value reduced to $56,000. Still dissatisfied, the owners have appealed to the Lanq Court. They estimate the correct value to be $47,500. The land is situated 2.8 kilometres west of the Babinda Post Office and Business Centre. It contained an area of 7 .363 hectares, is zoned Rural "C" and is used for rural residential purposes. Electricity, town water and telephone services are available. It is described by the Valuer-General as comprising easy to moderate to steep granite scrub ridge slopes broken by several seasonal gully lines and embankments, with elevated building sites providing good rural views. Mr C.J. Byers attended the hearing and gave evidence in support of the grounds of appeal. ;' He advise_d that the value of the land had been determined by the Land Court as at 31st Marc::h, 1989, in the sum of $47,500 and it is his opinion that in the subsequent year, relevant to this appeal, there had been no increase in value for rural-residential land. He tendered a copy of a newspaper article, where in some statistical details of the relevant Mulgrave Shire valuation were quoted, [1992] QLC 259 -- 1 of 5 -- 2 showing an overall minor decrease on the 1989 valuation, with a comment that many urban valuations throughout the Shire remained unchanged. Another article referred to comments in December 1989 relative to the effects on the real estate market of the airline pilot's dispute. A further article in February 1990 referred to a residential subdivisional development at Babinda carried out by the Mulgrave Shire Council, one of the several reasons for the development stated as having been "to try to assist Babinda's economy". In the relevant period there had been an escalation of industrial-type use of considered noxious and offensive nature on adjoining land which Mr Byers considers had a deleterious effect on value. Mr Byers described the operation of stockpiling of materials, particularly including mill-mud and the gas on a neighbouring property. He said that an area of about 8000 square metres of neighbouring land, at its closest point about 10 metres from the boundary and about 100 metres from the appellants' house, was used for the stockpiling of these materials. The overall operation occurred throughout the year, with firstly the stockpiling of the various materials during the cane season then the removal, as sales were made in the off-season. He had continually complained to the Counsel about the offensive odours emanating from the sugar-mill refuse materials, the perceived health hazard from the drift caused by handling of the bagasse stockpile, the noise which can occur during both the day and night and the visual pollution. He says that while there is an element of sympathy towards his complaints from the Council, as evidenced by a tendered copy of a letter from the Council to the neighbour, dated 7th September, 1990, ' · there is apparently also some support for the neighbour's operation, which, if limited to resale for primary production services, is said not to be a prohibited use in the Rural "C" zone. Apparently some processing (mixing) of materials for nursery -- 2 of 5 -- 3 use also takes place. Mr Byers agreed that the neighbour had planted a "banna" grass visual screen to part of the operation which was an improvement although this had occurred to his recollection, subsequent to the relevant date. This screen could be flattened by wind but more importantly had no effect on the reduction of noise or odours or potential drift. Furthermore, the stocking of a crocodile breeding farm in relatively close proximity had occurred since the previous valuation. Mr Byers had read and tendered a copy of a magazine report describing the escape of large crocodiles from a wildlife park near Mission Beach during flood conditions and was concerned as to the potential for a similar occurrence on the nearby farm which fronted a creek with major flash flooding potential. Evidence for the Valuer-General was given by Mr E.M. Migliorini, a registered valuer with the Department of Lands. He had not been the valuer responsible for the valuation appealed against, but" in that officer's absence had investigated the matter and on the evidence together with his own local experience, was able to support the valuation applied. Three sales formed the valuation basis as follows:- (1) A 5.3 hectare Rural C zoned site in Menzies Road Bartle Frere sold in February 1990 for $85,000 analysed to show an unimproved value of $70,000, with an applied value of $59,000. This land has superior topography, red volcanic soil ridge slopes with creek frontage, similar services but considered inferior location being 14 km south of Babinda. Mr Byers knew the location of the sale property but believed its use potential and superior soil type made it a more desirable and superior parcel, in comparison with the subject which had a useable area limited to about 40% . and then of inferior soil type. 'Mr Migliorini agreed that of the area of the subject property only about 40% had been previously assigned cane land. However, in his opinion, excluding consideration of the adjacent industrial-type operation, the subject land had features particularly·,location, which provided a favourable comparison with the sale land. -- 3 of 5 -- 4 (2) A 2.437 hectare Rural C zoned site in Woopen Creek Road, Woopen Creek sold in February 1990 for $55,000 showing an analysed unimproved value of $51,500, with a relevant date application of $46,500. This considerably smaller site is described as having inferior topography, similar services but inferior location being 17 km south of Babinda. (3) A 5824 square metre Rural C zoned site in Dickson Road, Babinda sold in April 1990 for $35,000 with an analysed unimproved value of $33,500 and an applied value of $28,000. This land has superior location being 1.4 km from the Babinda Post Office, has similar services, but is much smaller and of inferior topography being subject to periodic flooding. Mr Migliorini agrees with the statistical information referred to by Mr Byers, but points out that Mulgrave Shire covers a wide range of property with varying land types, usages and potential, making averaged statistical data of no assistance in arriving at conclusions for specific areas. He agrees that the previous Land Court determination of $47,500 should be accepted as the unimproved value as at 31st March, 1989, but disagrees yvith Mr Byers opinion that there has been no increase in rural-residential values since then in the particular locality of the subject land. He agrees that the industrial type operation on the adjoining land would have a deleterious effect on the subject land. At the time of his inspection for the Court hearing the stockpiling had been minimal and the visual effect minimised by the planted grass screen with contour banks constructed to control any leaching effects. In terms of value he did not agree that the crocodile farming operation in the locality was an issue. From a market value perception he saw the controls on the operation as being stringent. While he did not see flood damage as being a matter of concern that the creek referred to by Mr Byers - Double Barrell Creek was ' capable of major flooding. Although Mr Byers has concerns as to the potential for an effect on value due to the presence of this crocodile farm operation, there is no evidence before me to support the opinion that his concerns have extended into the market place. -- 4 of 5 -- 5 Mr Byers also has firm views as to a relatively stagnant market in the period to March 1989 to March 1990 with little if any real estate activity in the immediate locality. There is however, evidence of achievable levels of value for district Rural C zoned land of varying quality. That evidence indicates to me that the Valuer- General's original assessment of $59,000 was capable of support as at the relevant date had there been no injurious affection from the activities on the neighbouring land. This matter needs to be decided on the evidence relevant to 31st March, 1990, not the previous year. The evidence before me is that the Valuer-General has taken into consideration the activities next door in the reduced valuation of $56,000. The question is whether sufficient allowance has been made. The evidence of Mr Migliorini may be relevant to the presently existing situation although Mr Byers says that even now the problem remains one of significance. I have gained the impression that these activities are more extensive and for longer periods than was perceived by Mr Migliorini but were particularly so at the time relevant to the valuation under appeal. I will increase the allowance for this disability. The appeal is ailowed, the Valuer-General's determination set aside and the unimproved value of the land as at 31st March, 1990, determined in the sum of $53,000. (signed) R.E. Wenck. Member of the Land Court. -- 5 of 5 --