Beanland & Anor v The Valuer-General [1990] QLAC 36

LAND APPEAL COURT, BRISBANE 27th August, 1990 Re: Appeal against Land Court's determination of unimproved value - City of Caloundra. V89-311 and V89-312. R.M. and A.J. Beanland v. The Valuer-General REASONS FOR JUDGMENT Before the Court are two appeals against a decision of the Land Court handed down on 2nd February, 1990, dismissing appeals by R.M. and A.J. Beanland against determinations of the Valuer-General of the unimproved value of certain lands owned by the appellants in the area of the City of Caloundra. The valuations were made for the purposes of the revaluation of the lands in the City of Caloundra as at 31st March, 1988. Appeal V89-311 is in respect of land described as Portion 61/62 and 66/67, parish of Beerwah, containing an area of 8.71 hectares and being situated at Sahara Road, Glasshouse, which has been valued by the Valuer-General at $44,000 under Valuation Roll 5884 / 40000. Appeal V89-312 is in respect of land described as Portion 26, parish of Beerwah, containing an area of 12.71 hectares and situated off Glasshouse Mountain Road. The Valuer-General has valued this parcel under Valuation Roll 20493 in the sum of $36,500. The only ground of appeal is that the valuations are contrary to law in that the lands should have been amalgamated by the Valuer-General in one valuation under the terms of Section 14(b) of the Valuation of Land Act 1944-1987. It is contended that the combined parcel should be valued at $65,000 but conceded that if the Valuer-General has correctly issued separate valuations, the values [1990] QLAC 36 -- 1 of 5 -- 2 contended for by the Valuer-General are correct. This same question was canvassed before the Land Court and Land Appeal Court for these lands following the revaluation of the lands in the City as at 31st March, 1984. The judgment of the Land Appeal Court is to be found in (1986/87) 11 Q.L.C.R. 131. This appeal was testing the valuation applied to the lands valued under Valuation Roll No 5884/40000. That Court reviewed the provisions of Section 14 of the Valuation of Land Act, in particular the question of the exercise by the Valuer-General of his discretion to direct that the lands be valued as separate parcels. Section 14 was amended by section 8 of the Valuation of Land Act Amendment Act 1984. Section 14(b) was inserted. The section reads: II 14. 'Unless the Valuer-General otherwise directs, there shall be included in one valuation - (a) several parcels of land which adjoin, and are owned by the same person, and where either no part is leased or all the parcels are let to one person; (b) several parcels of land in the same Area which do not adjoin but are worked as one holding and used exclusively for the purposes of a single business of primary production, and are owned by the same person and which, if let, are all let to one person:'. 11 The judgment of the Land Appeal Court on the previous occasion at page 133 reads: Portion 26 is situated about 55 kilometres from the subject parcel. The portion is owned by the appellants and is worked with the subject land exclusively for the purposes of pineapple growing. Mr Thomason argued that the intention of the Legislature is that all parcels passing the test contained in paragraph (b) of the section are to be included in one valuation and that the 'so-called discretion' shall be not exercised unless there be a unique situation where it would be impracticable to make one valuation such as where divisional rating applies. Alternatively he submitted that in this case the exercise of the discretion was unreasonable. We have perused the second reading speech upon which Mr Thomason places his primary argument, in order to obtain an appreciation of the evil that was intended to be cured by the amendment, but we are unable to gain any assistance from it other than what is self evident on a reading of the former and present provisions as set out above. The wording of the new section is clear and precise and we have no difficulty in interpreting it. The Legislature has not used words which make it mandatory for the Valuer-General in the circumstances set out in the new provision to value separate parcels in the one local authority area as one parcel. On the contrary the command is to do so 'unless the Valuer-General otherwise directs'. Simply put the position as we see it is that the Legislature has given the Valuer-General an unfettered discretion which - the proviso to Section 14 not being relevant - he may exercise subject only to legal requirement that it must not be exercised capriciously or unreasonably. It is well established that the Land Court and this Court are competent to review the exercise of a discretion vested in the Valuer-General under the Act. • [1990] QLAC 36 -- 2 of 5 -- 3 Mr A.R. Thomason as agent for the appellants has acted throughout all of these proceedings. He argues that the Land Appeal Court had erred in that judgment and submits that this Court should find that it is not bound by the judgment. He contends that these lands meet the requirement of section 14(b) and the Valuer-General should have valued the lands as one parcel. Mr Thomason states that one parcel has been sold since this valuation. Before this Court the parties relied upon the record of proceedings in the Court below and did not adduce further evidence. The transcript of the proceedings in the Land Court shows that Mr Thomason did not adduce any evidence in support of his ground of appeal. Indeed if the Valuer-General had not elected to call evidence there would have been no evidence before the Land Court to discharge the onus under the Act for the appellants to prove their case. In the event evidence was called by Counsel for the Valuer-General and this evidence came from the valuer responsible for the valuation on behalf of the Valuer-General, Mr G.P. Crowley. His evidence is summarised in the decision of the Land Court as follows: II The evidence of Mr Crowley is that there has been no change in circumstances since the judgment of the Land Appeal Court. He said that the parcels have continued to be used for pineapple growing; that one parcel is situated on the edge of the town of Glasshouse and that the other is on the western side of Old Gympie Road about 5.5 kilometres away; that both parcels are reasonable sized properties capable of being operated independently of each other; that one set of machinery is used for working both parcels; that there was no facility or feature on one property which makes the other one dependent upon it; that the properties are separated by a number of rural homesites and farms; that there was no policy defining a maximum number of kilometres beyond which parcels would not be included in the one valuation and generally that there were no real circumstances to say that he should put the blocks together. 11 I am of the opinion that the proper course for this Court to follow is to consider the matter upon the evidence before it. It is not for this Court to consider the evidence advanced on the previous occasion. In the decision in the Court below, the learned Member said: [1990] QLAC 36 -- 3 of 5 -- 4 Mr Thomason seems to be of the view that where paragraph (a) is concerned the inclusion of the land in the one valuation is so automatic that the discretion vested in the Valuer-General is surplus and that by analogy paragraph (b) should be given similar practical effect. And so he argues that distance between parcels which was one matter considered by the Valuer-General in exercising his discretion not to include the subject parcels in the one valuation is irrelevant. Whilst this may be the limit of his practical experience with the Act, the section does not so provide nor did it so provide in respect of paragraph (a) prior to the 1984 Amendment. The argument he advances makes an assumption which is not apparent in the section. Were matters as simple as he would have me believe the Legislature could have covered the matter quite clearly and directly and removed the discretion vested in the Valuer-General in both instances but it has not. • I am in agreement that meaning must be given to the words "Unless the Valuer-General otherwise directs". The learned Member has summarised the evidence of Mr Crowley in his decision on the matters which were considered by the Valuer-General before directing that the parcels be valued separately. I note also in the record that Mr Crowley says that these are small properties yet capable of being self sufficient each in its own right and while they share common machinery there is no real feature of either property which makes it interdependent upon the other. He acknowledges that there are cases where parcels used for primary production purposes have been amalgamated. He instances cases of dairy farms where there is a home property with the necessary buildings for dairy purposes erected upon it and a separate paddock which is used for grazing purposes for some of the dairy cattle. He sees this as a case of interdependence one with the other. He does not see such interdependence in the subject case. The Valuer-General has the power to make the direction. It is for this Court to decide whether the Valuer-General in exercising his discretion in this matter not to amalgamate the parcels has acted unreasonably or capriciously. As was said in the previous Land Appeal Court judgment at p. 134: The manner in which an appeal against the exercise of a discretion should be determined has been laid down by the High Court in House v. The Km i: (1936) 55 C.L.R. 499. At pages 504/5, the joint judgment of Dixon, Evatt and McTiernan JJ. says - The manner in which an appeal against an exercise of discretion. should be determined is governed by established principles. It is not enough that the judges composing the appellate Court consider that, if they had been in the position of the primacy judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. ' [1990] QLAC 36 -- 4 of 5 -- .' 5 It follows that it is not enough for an appellant to convince us that if we were in the position of the Valuer- General we would have taken a different course. It must be shown that the Valuer-General has not had regard to all the material and relevant facts of the case or has otherwise been capricious or unreasonable. • The words "unless the Valuer-General otherwise directs -" were considered by Stable J. in Reinke v. Banana Shire Council (1968) Qd. R. 453 (F.C.) at page 458: I make brief mention of one facet of the arguments addressed to us upon sec. 15 - both counsel agreed that sec. 14 has nothing to do with the matter. There are four subdivisions let to separate persons, so it would appear that they should be separately valued and not treated as one parcel. But the section begins with the words 'Unless the Valuer-General otherwise directs -'. It was argued on the one hand that these words mean that he may direct himself, as does a judge, and on the other hand that they mean direct in the sense of issuing a direction to a valuer of his staff who is to go out and do the physical work of making the valuation. But if this latter be so then in the very act of directing a valuer of his staff the Valuer-General would be directing himself, for it would mean that he had already decided that the valuation was to be made on a particular basis. I am not unmindful of the fact that sec. 13 uses such phrases as The Valuer-General is of opinion' and The Valuer-General considers'. I am also not unmindful of the fact that where ordering something to be done is contemplated the Acts use the phrase The Valuer-General may cause' a valuation roll to be prepared in a certain manner - sec. 17(1). All things considered, I conclude that in sec. 15 the words 'Unless the Valuer-General otherwise directs' are equivalent to 'Unless the Valuer-General otherwise rules'. This being so, he was acting within his powers in the matter complained of in the present case. " Mack C.J. and Matthews J. found it unnecessary to decide the meaning of these words. The only evidence before the Court comes from Mr Crowley as to the reasons why the Valuer-General did not direct that one valuation should issue. None of these points has been disturbed in cross-examination. The Valuer-General sees the parcels as being capable of being operated independently of each other and no facility or feature on one property makes the other one dependent upon it. He has also considered the distance between the parcels. I can find nothing in the evidence here to show that the Valuer-General has not had regard to all the material and relevant facts of the case or that he has otherwise acted capriciously or unreasonably. It appears to me that to find otherwise is to say that all lands as described in section 14(b) must be included in one valuation and the words at the commencement of section 14 "unless the Valuer-General otherwise directs" are superfluous. I would dismiss the appeal. I /'/ (D.J. Barry) ✓/ _ I (__ "--1>.rehldent of the i;;;_crbmrt [1990] QLAC 36 -- 5 of 5 --