Donovan & Ors v The Valuer-General [1990] QLC 267

Re: Appeal against a determination of the Valuer-General, Waggamba Shire. AV90-536. R.H., R.H.M., & M.J. Donovan v. The Valuer-General (Hearing at Goondiwindi) DECISION 'LAND COURT, BRISBANE. 18th October, 1990. The valuation appealed against is for property described as Lot 5 on CVN436: Agricultural Farm 20/3665 and Lot 1 on PER5996: Permit to Occupy 20/5796, Parish of Bollaranga, County of Carnarvon, containing 4158 hectares. The Valuer-General's valuation as at 31st March, 1989, is $230,000. The property, known as "Glentown" is situated about 12 kilometres south of Toobeah by way of a formed earth and gravel road. The appellants contend for a valuation of $180,000. The grounds of appeal relate to the nature of the country making up "Glentown", changing flood patterns, declining income, extent of valuation increase and the inclusion in the valuation of a large area of Shire roads. Mr R.H. Donovan (Jnr.) submitted a written explanation of the grounds of the appeal and gave oral evidence at the hearing. He explained that "Glentown" was selected originally and was continued to be managed as a grazing property with a diverse mixture of country having its own peculiarities and not able to be directly compared with other properties in the locality. He describes "Glentown" as consisting of a harder ridge through the centre with creeks to the north and south with swamp and [1990] QLC 267 -- 1 of 7 -- 2 small areas of better country in between. He describes the soil types overall as being less productive than neighbouring properties and also considerably inferior to properties to the north in the Mitchell grass country with farming potential and lesser flooding disability which were valued at only $4 to $8 per hectare more than "Glentown". He is particularly concerned about the flooding situation. Mr Donovan explained that every property in the area had differing heights of flooding. On "Glentown" at a flood height of 14 feet, run through of the Callandoon Branch Creek commenced, then at 20 feet height flooding commenced. Up to 25 feet height was considered to be beneficial flooding to the grazing pastures. Flooding at 34 feet was considered major flooding when only about 8 hectares of the property remained above water. It is his opinion that the pattern of flooding has changed in recent times and more regular major detrimental flooding is now being experienced. The smaller beneficial floods, on which the heavy clay swamp country relies, are becoming considerably less frequent. He says that recently a 27 feet flood - Macintyre River height at Goondiwindi - had the effect of a 30 feet flood on "Glentown" and in his opinion this was caused by a diversion bank constructed on a neighbouring upstream property. Mr Donovan is most concerned as to the adverse effects which he predicts will result from increasing construction of dams, weirs, diversion banks and irrigation works generally. Already the more frequent major floods with the deeper flooding for longer periods were causing a deterioration in pasture quality. Another disability referred to by Mr Donovan is the relatively large area of Shire road intersecting the property, relocated to the higher country in the past to assist neighbours, but now causing problems with stock losses, necessary maintenance to grids, shooters, dogs, etc. The area of the property is 3980 hectares, but because, for legal reasons, a permit to occupy the unfenced road area was obtained, the total area subject -- 2 of 7 -- 3 of the Valuer-General's valuation, including this permit, has increased to 4158 hectares. Mr Donovan also referred to the difficulties currently being faced by the seriously declining income from wool and sheep. It is his opinion that while the valuation has increased by 71 % in 2 years, land values for grazing properties have not risen to that extent with decreasing values for sheep properties. Reference was also made to the valuation of "Glentown" increasing by 25.68% in the last annual valuation being above the average for the Shire division, while a neighbouring property ("Whynot") rose by 5.4%. Evidence for the Valuer-General was given by Mr D.P. Coe, AAIV, Registered Valuer and the District Valuer in the Southern Downs District Office, Warwick, who tendered a report and valuation. Mr Coe explained that the valuation under appeal as at 31st March, 1989, was the second annual revaluation of Waggamba Shire. He confirmed that in Divisions 2 and 3 of the Shire all primary production land with the exception of the Macintyre river frontage property with water allocation, had risen firstly 45% to March 1988 then another 25% to the 1989 relative date. Some adjustments resulted from objection conferences with minor fluctuations caused by the computerised rounding off process. Mr Coe advised that, based on arguments put forward by Mr Donovan at the time of the 1988 valuation a 10% reduction had been then allowed for the overall worsening flood disability. Being aware of the potential for a further worsening effect, Mr Coe advised that the Department will be monitoring, on an annual basis, the situation relevant to matters referred to in Mr Donovan's evidence, including upstream irrigation works. Some discussion took place during the hearing as to the increased flooding disability on "Glentown" which had occurred in 1990, apparently as the result of recent diversion bank works on the nearby upstream property as referred to by Mr Donovan in his evidence. Mr Coe indicated that although the -- 3 of 7 -- 4 increased flooding on "Glentown" was in accord with predictions of Mr Donovan the particular offending diversion bank works may not have been even constructed at the time of this relevant valuation and did not come to the knowledge of Mr Donovan until an aerial inspection upstream in 1990. Mr Coe also confirmed some of Mr Donovan's evidence relevant to major irrigation work proposals for Callandoon Creek and provided the Court with a copy of an Order in Council constituting the Callandoon C Water Supply Area as published in the Government Gazette on 14th July, 1990. The plan forming the first schedule of the Order, depicting the extent of the Area shows "Glentown" as an excluded area although within the boundary of the scheme. Again Mr Coe agrees with Mr Donovan that at this time the eventual effect of the irrigation development scheme on the flooding position of "Glentown" is not known. While Mr Donovan is somewhat pessimistic in that he believes, at least as at 1990, the scheme will be detrimental to the grazing future of "Glentown", and to its valuation accordingly, Mr Coe has no evidence to that effect. He did indicate to the Court however that while he did not believe it would be correct to alter the 1989 valuation based on the diversion bank works which appear to have caused the increased 1990 disability, it is a matter which must be considered for the relative 1990 annual valuation. He further stresses that the effect of the Callandoon Scheme overall will need to be monitored regularly. I agree with Mr Coe's approach to the flooding position. Mr Coe, although confident as to the overall movement of values in Divisions 2 and 3 of Waggamba Shire, as evidenced by a schedule of property sales in the late 1987 to early 1989 period submitted with his report, did not have any directly comparable sales evidence relevant to the flooded grazing country, in its natural state requiring little if any timber treatment development. He says the effect of the allowance for timber treatment on the superior fully developed scrub country, can given an impression of -- 4 of 7 -- 5 incorrect relativity unless the requirements of the legislation relevant to unimproved value are understood. Nevertheless Mr Coe submitted the analyses of one brigalow/belah scrub property, as a guide to level of value rather than as directly comparable land, then a sale of the property "Brooklyn", a neighbouring property to "Glentown". The difficulty with this latter sale was that it showed an analysed figure of $125.50 per hectare unimproved, while $63 per hectare was applied. Mr Coe explained this sale showed that a premium had been paid in anticipation that "Brooklyn" would be included in the Callandoon Water Supply Area, which subsequently became a reality. It is evident that with no directly comparable sales evidence, the fairness of the valuation of "Glentown" relies heavily on its relativity with properties of comparable quality. Mr Donovan has extensive local knowledge as to the quality and flooding benefits or disabilities of neighbouring properties and during his cross examination was taken through the valuations of several surrounding properties. There did not at first appear to be any major difference of opinion between Mr Donovan's appreciation of the qualities of the various properties and that of the Valuer-General, particularly in that the properties recognised as being superior carried higher valuations. When the valuations of two adjoining Macintyre River frontage properties - "Booberoi" and "Whynot" - were dissected, a slightly different picture emerged. Both "Booberoi" and "Whynot" enjoy water allocations, and the valuations on the areas capable of irrigation were identified separately. The valuations on the balance areas were then revealed as being $50 per hectare and $46.50 per hectare respectively, the latter "Whynot" having some access disability at least on the irrigated farm land basis. It was this allowance for the disability of access on "Whynot" which had caused that valuation not to increase at the same level as other properties in the locality. Another river frontage· property "Lucksall" had an overall valuation of $55.20 per hectare, almost identical with the non- -- 5 of 7 -- 6 river front "Glentown" and while unable to be confirmed, it appears that "Lucksall" also enjoys a water allocation. The Valuer-General's valuations on several adjoining properties including "Kalanga", "Brooklyn" and "Riverview" are higher than "Glentown" to varying degrees related it appears, to superior country and farming potential. Having regard to Mr Donovan's evidence as to the increasing prevalence of swamp grasses and the degeneration of pastures on "Glentown" then the values applied by the Valuer-General to the balance non-irrigable classifications on "Booberoi" and "Whynot", and the overall valuation of "Lucksall", I have come to the conclusion that the valuation of "Glentown" may be marginally high in comparison. I have decided to adopt an overall valuation of $52.50 per hectare on that area of "Glentown" exclusive of the Permit to Occupy. The overall relativity between the properties referred to may need closer attention on review, but it should be noted that the specific flooding events in 1990, subsequent to the time period relevant to this matter, have been excluded from consideration in this decision. Mr Donovan's opinion that land values for sheep properties have declined due to the current difficulties being experienced, while obviously a matter of present concern, is not a matter of contention as at March 1989, the date relevant to this matter. If subsequent evidence shows declining values have resulted then this evidence will need to be considered with future annual valuations. It is also necessary to consider the question of the value to be applied to the area of road over which the Permit to Occupy bas been granted. It appears that an area of approximately 178 hectares is involved. Mr Donovan indicates that it has been necessary to provide and maintain grids in fences crossing the permit area and obviously be is unable to restrict the right of the public to the use of the permit area for access purposes. Part of the surface area is unavailable for the purpose of which it is -- 6 of 7 -- ; I 7 permitted to be used - i.e. grazing - and in its unfenced condition some danger exists to stock traversing the road carriageway. Section ll(l)(v)(e) of the Valuation of Land Act of 1944 (as amended) requires that the unimproved value of land permitted to be occupied is to be determined "having regard to and making proper allowance for any restriction or limitation to which the permission to occupy is subject." In the circumstances of this particular area I cannot accept that it should be valued at the same overall rate as the main holding. I am adopting an unimproved value of $35 per hectare accordingly. In summary my determination is calculated as follows: 3980 hectares @ $52.50 per hectare = $208,950 178 hectares Permit to Occupy @ $35.00 per hectare = $ 6,230 $215, 180 Adopt $215,000 Accordingly the appeal is allowed, the determination of the Valuer-General set aside and the unimproved value as at 31st March, 1989, determined as $215,000. (R.E. Wenck) Member of the Land Court -- 7 of 7 --