Cook v The Valuer-General [1990] QLC 281

Re: Appeal against determination of Valuer-General - Eacham Shire Council. AV90-71. LAND COURT, BRISBANE 7th September, 1990 Ernest Clyde Cook and Patricia Therese Cook v. The Valuer-General DECISION (Hearing at Atherton) Mr and Mrs Cook own two adjoining parcels of land in the parish of Bartle Frere, having a combined area, with a road licence, of 64.7686 hectares. For the purposes of the Annual Valuation of the Area as at 31st March, 1989, the Valuer-General has determined the unimproved value of the land as follows: Lot 37 /NR 7069 Lot 38 NR 7069 plus road licence Less 10% bulk holding Adopt $80,000 $45,000 $45 ,000 $90,000 $ 9,000 $81,000 The valuation was made on the basis that the highest and best use of the subject lots is for rural residential purposes. The appellants value the land at $60,000. In the notice of appeal and in the evidence of Mr Cook, reference is made to the value applied by the Valuer- General to MHLs 3652, 3655 and 3667 of $26,000. These blocks are used for grazing purposes. They are owned by Lorensen who also owns two nearby lots - portions 296 [1990] QLC 281 -- 1 of 4 -- 2 and 298. All blocks are worked together for the purposes of a business of primary production. Mr Cook describes Mr Lorensen as a farmer. Mr R.G. Moroney, registered valuer, who wrote the valuation on behalf of the Valuer-General, said that the MHLs which adjoin each other and are opposite the subject land in Ault Road were valued under the provisions of s. ll(l)(vii) of the Act as land exclusively used for the purposes of the business of primary production. A valuation under s. ll(l)(vii) is an exception to the general rule that land shall be valued for its highest and best use. A comparison therefore between Lorensen's land and the subject land is of no benefit and is not permitted in law unless it can be held that the subject land should also be valued as an exception. The evidence in this respect which may be summarised briefly is that Mr and Mrs Cook have held the subject lots for about 13 years. They intended to retire to the area. They planted about 300 avocado trees and some 4000 hoop and Caribbean pine trees. They have a caravan on Lot 37 and they made access to a site on the lot over a creek which runs parallel to the road frontage and not a great distance from the front boundary. However, they have never taken up residence on the site. They visit the area intermittently. This is a fact which takes them away from the other limb of s. ll(l)(vii) which could be of some benefit to them had they taken up residence. Up until 5 years ago, Mr Cook was a primary producer for Taxation purposes. He has suffered ill health. In parallel with this problem, he has found that avocados are not suited to the area and hence the orchard has been abandoned. According to Mr Moroney, the pine plantation has not been tended in the form which could be expected of a business conducted on a continuous and repetitive basis for the purpose of making a profit. At present there are some horses on the blocks. Notwithstanding the sympathy I have for the plight in which Mr Cook finds himself, I have no alternative but to find -- 2 of 4 -- 3 that the use made of the subject land cannot be held to be a business of primary production. The comparison with Lorensen's land is therefore of no relevance. This point was tacitly recognised by Mr Cook. Indeed his valuation is inconsistent with an application of Lorensen's valuation. The thrust of his evidence, as I understand it, is that the increase in value is not warranted. He is of the opinion that access over the creek inside the boundary is so difficult that only one crossing is available; that is the crossing which they use to get into Lot 37. He is also of the opinion that if the lots were sold a prudent vendor would sell them as one site. The evidence of Mr Moroney is that the lots fall from a narrow easy to moderate sloping ridge to the creek, then rise to another ridge before falling again to another creek. He says that homesites exist between the road and the first creek and he agrees that crossings would have to be made if a homesite is chosen on the ridge beyond the creek. He agrees that it would cost money to construct crossings but says that the choice is essentially a matter for each individual purchaser. In his opinion, each lot was quite viable as a site. The valuation he made was based on sales and he compared the subject lots with two sales which it is agreed are of superior land and well away from the subject lots. In the relevant period no sales occurred of land within the immediate area of the subject land. He therefore followed the trend shown by the sales used for direct comparison purposes. The application of the sales to other lots in the immediate area of the subject lots is demonstrated as follows: Lot 40 Lot 42 Lots 33/34 Lot 39 MHL 3668 $62,000 $58,000 $80,000 $55,000 $46,000 -- 3 of 4 -- 4 He submits, and the relativity would suggest he is correct, that the subject lots as separate sites are worth $45,000 each. Under the Act the onus is on an appellant to prove that the value applied to the subject land is incorrect. It does not follow from the absence of sales of land in the immediate area of the subject land that land values in the area have not risen in comparison with values elsewhere in the shire for the same land usage. I have accordingly no grounds to disturb the determined value. The appeal is therefore dismissed and the determination of the Valuer- General affirmed. (Signed) D.M. White Acting President of the Land Court -- 4 of 4 --