Benson v The Valuer-General [1990] QLAC 29 (1990) 13 QLCR 102

LAND APPEAL COURT, BRISBANE. 27th August, 1990. Re: Appeal against Land Court determination of unimproved value - Shire of Caboolture. AV89-119. John H. Benson and Holly L. Hudlow v. The Valuer-General J U D G M E N T This is an appeal against a decision of the Land Court of 10th November, 1989, dismissing an appeal against the determination of the Valuer-General of the unimproved value of Lot 4 on RP 181320 in the sum of $70,000. The facts are set out at considerable length in the decision of the Court below and no good purpose can be served by repeating matters which appear in that decision. Suffice to say that the appellants reside in a dwelling erected upon the subject land in a fenced area of about 2400m2. The balance of the land is used by a Mr Dawes, a dairy farmer, for grazing purposes in conjunction with other lands. During the relevant period from the date of valuation (31st March, 1988) and the date the valuation went on public display (28th November, 1988), no money was received from Mr Dawes in payment for the grazing rights but Mr Dawes was responsible for the maintenance of the improvements, including fences, dams, additional clearing and the security of the land. Mr A.R. Thomason appeared as agent for the appellants. His first submission is that the Land Court erred in not finding that the land fell to be valued as land exclusively used for the business of primary production under the provisions of Section 11(1)(vii) of the Valuation of Land Act 1944-1987 and not for its highest and best use as a residential home site. Mr Thomason and Mr Benson gave evidence in the Court below and gave [1990] QLAC 29 -- 1 of 4 -- 2 further evidence before us. We have given consideration to all of this evidence. We are today handing down a judgment in the matter of J.V. and D.M. Hitzke v. The Valuer-General (AV89-116) in which Mr Thomason appeared as agent. The position in that case was that the landowners resided in a home upon the land while Mr Dawes had certain grazing rights. In that case we found that the land was not exclusively used for the business of primary production during a period which can be considered by us and that the Valuer-General has correctly valued the land for its highest and best use as a residential home site. The reasoning we have adopted in the Hitzke case applies equally here and requires no repetition. We find that the appeal on this point fails. Mr Thomason then branches to another line of attack and contends that the Valuer-General has erred in not exercising his discretion and creating two parcels, one for the area upon which the home is erected and the other for the balance land. He says this was the procedure adopted by the Valuer-General in a matter which was considered by the Land Court A.R. and A.K. Chambers v. The Valuer-General (1980/81) 7 Q.L.C.R. 149 where the landowner resided upon the land and took cattle on agistment at a monthly fee. The landowner was responsible for the maintenance and security of the whole of the land. In the circumstances of that case the Court held that the Valuer-General had acted unreasonably and that the whole of the land was held to be valued as land exclusively used for the purposes of the business of primary production. The valuation was set aside on the grounds that it was contrary to law. In the Court below, the learned Member in this case said: "The submission of the appellants presupposes that part of the lot is used for residential purposes and part for grazing purposes. The creation of separate parcels for the purposes of the valuation would on the evidence result in a more favourable overall valuation to the appellants than that determined. But this is not the point. The Valuer-General has a duty under the Act to value lands correctly. When it comes to the question whether he should exercise a discretion to create separate parcels, he is bound by the provisions of this Act and he may lean upon authorities for assistance in the reasonable exercise of his discretion. In the Chambers' case, assistance can be gained in identifying matters which should be considered such as the nature of the separation and the degree and permanency thereof. On the facts of this case, I am satisfied that the Valuer-General has not overlooked any relevant consideration. In fact I can see no ground for his exercising a discretion in -- 2 of 4 -- 3 the manner submitted other than for convenience and this is not a ground for moving in that direction. I find that he has acted correctly in valuing the land as a single residential site. " "Parcel of land" is defined in Section 5(1) of the Valuation of Land Act as meaning "every part of an area of land which is separately held by any owner, or any part of an area of land which the Valuer-General directs should be valued as a separate parcel". The subject land in this case is separately held by the appellants. No part thereof is separately let to another person. It does not fall for consideration under Sections 14 or 15 of the Act. The Valuer-General has not directed that any part of the land should be valued as a separate parcel. There the matter rests. We can find no merit in the argument advanced for the appellants and find that the Valuer-General has correctly valued the parcel as one parcel which it is. Mr Thomason dealt only briefly with the attack against the application of a value of $70,000 for the subject land as a homesite. The valuer for the Valuer-General, Mr G.P. Crowley, has listed three sales in the schedule of sales attached to his valuation as a basis to arrive at the unimproved value of the subject land. As stated in the Court below, the nearest and most comparable of the basic sales is just to the north of the subject land in Horne Road. This 16-hectare parcel was purchased by a Mr Gockel on 25th January, 1988, for $98,000. It is discussed in the decision of the Land Court. Mr Thomason tendered a statutory declaration signed by the purchaser which reads: "I, Herbert Josef Ingolf Gockel of 141 Jubilee Tce, Bardon 4065, in the State of Queensland, do solemnly and sincerely declare that the land Lot 1, R.P. 214821 Parish Pine was purchased with the intention of establishing a worthwhile primary production enterprise and not somewhere to retire to and engage in some kind of hobby. We looked at land at Maleny and Mt. Mee and found that land of the description of the purchase was expensive for the purposes of primary production. We would have liked to have purchased a larger area, but were restricted to 16 H.A. because of cost and the level of our financial situation. " In cross-examination Mr Thomason agrees that the declaration from Mr Gockel would indicate that his purchase supports a value for land for some type of fairly intensive primary production but resiles from the suggestion it could be applied to the subject -- 3 of 4 -- 4 land if it was being valued for the purposes of the business of primary production. He said he sees the Gockel purchase as being "somewhat, not a lot, but somewhat superior by description to the subject land, fairly similar but the subject property is inferior as a primary production". There is nothing in this evidence to disturb the valuation which has been placed on the subject land as a residential homesite and Mr Thomason does not direct the Court in his address to any basis for making any other finding. Accordingly, the appeal is dismissed and the determination of the Land Court is affirmed. J. Judge of the Supreme Court President of the Land Court Member of the Land Court -- 4 of 4 --