Burry & Anor v The Valuer-General; Burry v The Valuer-General [1991] QLC 52

LAND COURT, BRISBANE 2nd ~ugust; 1991 Re: Appeals against Annual Valuations of the Valuer-General - City of Thuringowa. AV91-41, AV91-42 and AV91-43. A.R.J. and J.E.R. Burry v. The Valuer-General A.R.J. Burry - V. The Valuer-General DECISION (Hearing at Townsvilfe) (AV91-42/43) (AV91-41) The Valuer-General has undertaken a revaluation of the lands in the City of Thuringowa in an Annual Valuation as at 31st March, 1990 (effective 30th June, 1991). Appeals have been lodged by the abovenamed against the valuations and, by consent, the hearing of the three appeals was taken together. Brief particulars of the appeal lands are: Appeal AV91-42 - Valuation 10726 - Property known as the "Four Mile" block with an area of 1,550 hectares - Situated 53 kms south of Townsville on the Woodstook/Giru Road. Valuer-General's carrying capacity - 1 beast to 6 ha - Valuation $227,500 (about $146 per ha) - Appellants' valuation - $155,000. Grounds _of Appeal - Heavy flooding. Associated Problems. Loss of Fencing. Loss of stock. Stock straying. Noxious weeds. Bores contain high salt levels. Upper soil contains high salt levels. Heavy ti- tree growth and regrowth. Broken gullies causing serious erosion. Three easements through property. Extensive pasture improvement not considered. Appeal AV91-43 - Valuation 10798 - Property known as "Pink Lily Lagoon" containing 453.5 ha - Situated about 50 kms south-east of Townsville with access by the bitumen sealed Bruce Highway - Valuer~ General's valuation $170,000 ($375 per ha) - Appellants' valuation - $113,000. [1991] QLC 52 -- 1 of 7 -- 2 Grounds of Appeal - Heavy flooding. Associated problems. Loss of fencing. Stock straying. Noxious weeds. No underground water ex windmill supply, poor quality. Highway through property. Difficulty mustering. Fires. Shooters. Magpie geese pollute swampy areas. Power line through property. Appeal AV91-41 - A number .of parcels, one comprising a northern parcel and the other a southern parcel which are not contiguous - Valuer-General's carrying capacity is 1 beast to 4 ha - Valuation of $89,000 ($380 per ha) - Appellant's valuation - $58,000. The northern section has a watercourse known as the "Crooked Waterhole" through it and to simplify matters I will refer in this decision to all of that land under the title of the "Crooked Waterhole" block. Grounds of Appeal - Serious flooding. Associated problems. Loss of fences. Destock Jan-April. Salt Water (tidal). One-third of property worthless if no dam. No underground water. Magpie geese pollute swampy section. Evidence was given by Mr A. R.J. Burry who discusses the grounds of appeal and produces some figures of water tests carried out by a Mr Freshwater, the officer in charge of the Bureau of Sugar Experimentation at Brandon on the salt content of three of the four bores which have been drilled on the "Four Mile". He says that the salt level on one of the bores in November, 1990, showed 330 grains per gallon which is getting back to being almost unusable for stock. One of the bores was put down in 1987 and is not being used at present but he may have to revert to it if the bore with the higher salt content deteriorates. He says he has numerous dams which went dry in 1987 and since then he has deepened them. In summary, his concern is that the dams may go dry again and the salt intrusion in the bores become a serious problem at some time in the future. He illustrates with photographs and in his evidence the problems of salt in the soil with rusting of the steel fence posts and a water tank. He also has photographs of the broken gullies which cause erosion and the heavy ti-tree regrowth. He speaks of the flooding in 1946 and of the possibilities of problems in the Mure following the recent enlargement of the Ross River Dam. He says that in the past six years he has built -- 2 of 7 -- 3 some mounds to stop flooding intrusion. He makes reference to the easements which cross the land being a power line ea~ement and an underground water pipeline. The water pipeline apparently is no~ used. He says it is a "white elephant" but eventually if they use it there will be inspectors going through all the time. As to the powerline, inspectors can cause cattle to scatter and go through fences. .He speaks of the costs of supplemental feeding and the necessity to vaccinate against botulism. As to the valuation for which he contends, he says that he has gone back to the valuation before the last valuation. He said at that time the valuation was $155,000 and it then went to $167,500 and now to the present figure. Mr Burry then deals with "Pink Lily Lagoon" where there is flooding from the Haughton River which comes into the lagoon and spreads across most of this land with loss of fencing, straying stock. The highway passing -through the property is a problem. He says there is no underground water except for a poor quality windmill supply. He highlights the risk of fire because of the traffic from the highway and pollution caused by magpie geese around the lagoon. He says that after a conference the Valuer-General made an allowance of $5,000 in the valuation which gives only a minimal saving in rates. He puts forward his valuation using the same approach as used in the "Four Mile" and accepts that old valuation of the Valuer-General as correct. Mr Burry then addresses his grounds of appeal of the parcels of land under Valuation Roll 10901 which I refer to as "Crooked Waterhole" and which he calls "8V". He says there is serious flooding on this block and normally he destocks from January to April. He speaks of the recent flooding at about Christmas Day 1990 which of course is after the relevant date of this valuation when his wife and he took horses from the "Four Mile" up to "Crooked Waterhole" and put the cattle -- 3 of 7 -- \ 4 onto a small area of high land which is specially fenced. Again, fencing has washed down and in 1990 the railway fence was washed out and it was not until October 1990 that the Railway Department reinstated the fence and until that replacement it was necessary for him to place an electric fence along that boundary to keep the cattle off the railway line. He says he has a dam across "Crooked Waterhole" but it gets washed out every year. Again he speaks of magpie geese. Mr Burry comments on the valuation of the Valuer-General. He disputes that "Crooked Waterhole" is a permanent waterhole although he says he has never seen it dry but salt water seeps in from underground and by September the cattle will not drink out of this waterhole. He says that there is another little creek that comes on the eastern side of the property where stock can water. He displayed a video film which he has taken flying over the lanes after the flooding in early 1990. He has travelled over the lands by his aircraft and shows the extent of the flooding but it would appear from his evidence later that some of the aerial photography was of the flooding which occurred in early 1991. He acknowledges that in the years he has owned these lands he has not experienced flooding to the extent which occurred in 1990 and in 1991. In cross-examination Mr Burry says that ti-tree regrowth can be controlled by management but it can be too expensive. The Electricity Board workers would check the powerline about four to five times a year. He disputes that "Pink Lily Lagoon" is permanent. He says that it went dry in 1982/83 and again in 1987 and he has been .told that it has been dry in the distant past but in the final result he says he believes it has been dry four times in the last 56 years. It has not been necessary to remove cattle from the block when the lagoon has dried as there was windmill water available but it was of lower quality. He disputes that the -- 4 of 7 -- 5 flooding of "Crooked Waterhole" block can have benefit in leaving silt which would boost pasture growth and says that it is detrimental. Dealing with the "Four Mile" he says that the cattle mounds which he has constructed have so far prevented a disaster from Majors Creek water but he is apprehensive as to what might happen in the future. On the question of carrying capacity, he had estimated a carrying capacity over all the properties as 1 beast to 3.6 ha (622 head) but he says that there are 750 head running on the three properties as an average. It was put to him that the Valuer-General has assessed the three blocks at 1 beast to 5.2 hectares (430 head) which is lower than the number actually carried. He says that regard must be had to the amount he spends for supplementary feeding which is $16,000 a year. Evidence for the Valuer-General was given by valuer, Mr S.A. Cross, who says that he was aware of the flooding which occurs on the "Four Mile" block. He says in his opinion the flooding has some beneficial effects as it deposits silt which aids in pasture regeneration. It does cause some problems and regard has been had to the problems in arriving at the valuation. On the question of the salinity in the bores, he has obtained some advice from an officer of the Water Resources Commission on the salt concentration in water which can be tolerated by cattle. He does not dispute the salt content mentioned by Mr Burry but believes that at present the water . is suitable for stock purposes. He was aware of the ti- tree regrowth and says control of this is a management problem. It can be controlled but is a question of cost. He does not believe that the present level of erosion in the gullies nor the existence of the easements affect the overall grazing workability of the property. -- 5 of 7 -- ( 6 In dealing with "Pink Lily Lagoon•, the · same comments apply to flooding and in his opinion for all intents and purposes the lagoon is a permanent water supply. The lagoon was referred to in a previous Court decision on the value of this land and it was so described in the evidence on that occasion. A further allowance was made upon objection for the increased pest population, principally magpie geese. Mr Cross says the same remarks on flooding apply to the "Crooked Waterhole" block and says that it would be normal · and prudent management practice to dam back the waterhole to stop salt intrusion into the property which is the current management practice. He says that in the decision on a previous hearing an allowance of $50 per hectare was made by the Land Court in 1983 for the salt intrusion factor on top of the allowance which had already been given by the Valuer-General and this allowance has been carried on so that the relativity has been maintained. He does not feel any further allowance is warranted. To arrive at his valuations Mr Cross has relied on sales but the sales evidence has not been challenged and is not one of the grounds of appeal. The task of a valuer, in fulfilling his duties under the Valuation of Land Act, is to arrive at an unimproved value for a parcel of land at a given date. The Act says he should look to what a prudent person would be prepared to accept for a parcel of land at that date if offering it for sale on reasonable terms and conditions and assuming it to be unimproved. The best evidence is to look for sales of lands used for the same purpose and analyse such sales to arrive at an unimproved value. It is then a matter of professional judgment to compare the land in the sale to the land being valued. I find on the evidence that the sales support the level of value contended for in each case. A landholder has the right under the Act to appeal against a valuation but the onus is upon him to show that the Valuer- -- 6 of 7 -- ( 7 General has erred in the valuation and his appeal is limited to the grounds set forth in the Notice of Appear. In these cases the grounds relate to the multiplicity of disabilities which attach to these lands as enumerated by Mr Burry. Mr Cross says that he was aware of these problems which have mostly. been ventilated in a Court hearing in 1983. He acknowledges that there has been some increase in pests and a· further allowance has been made where applicable. It is clear on the evidence that Mr Burry has quite understandably fixed in his mind the greater extent of flooding which occurred in 1990 and 1991. He is also apprehensive of what might happen to these lands in the future but it is inappropriate to make allowances for disasters which may or may not occur. There is provision in the Valuation of Land Act for the landholder to ask the Valuer-General to reconsider a valuation where flood, cyclone or some other adverse natural cause over which the owner had no control, has caused permanent damage to the land. I am dealing here with valuations of the land as at 31st March, 1990, and I find that Mr Cross was aware of the problems associated with these lands as at that date and there is no evidence before me to justify any variation in the valuations contended for by the Valuer-General and the appeals fail. Accordingly, Appeals AV91-41 , AV91-42 and AV91-43 are dismissed and the valuation of the Valuer-General in each case is affirmed. (D.J. Barry) President of the Land Court -- 7 of 7 --