Jensen v Valuer-General[2025] QCA 102

SUPREME COURT OF QUEENSLAND

1. [1]
   BODDICE JA:  The applicants are the owners of rural land located near Lake Tinaroo, in Far North Queensland.  The respondent assessed the unimproved valuation of that land in 2020, at $640,000.
2. [2]
   The applicants lodged an objection.  The objection was not allowed by the respondent.
3. [3]
   The applicants appealed against the objection decision to the Land Court of Queensland (Land Court).  That appeal was allowed.  A determination was made that the unimproved value was $615,000.
4. [4]
   Notwithstanding that success, the Land Court ordered that the applicants pay the respondent’s costs of and incidental to a notice issued by the applicant under s 78B of the Judiciary Act 1903 (Cth) on the standard basis, but otherwise ordered that each party bear their own costs of and incidental to the appeal.
5. [5]
   The applicants appealed both decisions of the Land Court.
6. [6]
   The Land Appeal Court of Queensland (Land Appeal Court) allowed the applicants’ appeal in respect of the unimproved value, substituting an unimproved value of $600,000, but dismissed the appeal as to costs.  The Land Appeal Court ordered that the applicants pay the respondent’s costs of each appeal.
7. [7]
   The applicants seek leave to appeal the order of the Land Appeal Court that the unimproved value of their land was $600,000.  The applicants contend that the Land Appeal Court made several errors of law and fact in reaching that determination, and the interests of justice warrant a grant of leave to correct those errors.
8. [8]
   Whilst the applicants rely on multiple grounds of appeal, central to those grounds are alleged errors in the determination of what is the highest and best use of the land and in determining what was the most relevant comparable sale in arriving at the unimproved valuation of $600,000.

Legislative regime

9. [9]
   The Land Valuation Act 2010 (Qld) (the Act) provides a regime for the respondent to issue land valuation notices to land holders, following the respondent’s assessment of the valuation of land in various government areas.
10. [10]
    Under Chapter 3 of the Act, a landowner is entitled to object to the valuation.  If a notice of objection is given in the approved form, the respondent is obliged to consider and decide the objection and give notice to the objector, of the respondent’s decision “on the objection”.
11. [11]
    An objector may appeal to the Land Court against the objection decision.  The Land Court may confirm the valuation appealed against, or reduce or increase the valuation to the amount it considers necessary to correctly make the valuation under the Act.
12. [12]
    The Act provides that the value of land, in the case of rural land, is its unimproved value.^[1]  The improved value is the land’s expected realisation under a bona fide sale, absent improvement.^[2]

Land Court decision

13. [13]
    The Land Court recorded that the applicants owned 16.39 hectares of land and contended that the proper value for that land was $400,000, although the applicants did not provide any expert valuation evidence.  The respondent relied on a report given by a qualified expert valuer who had undertaken an analysis of comparable sales.  That valuer had accepted that the subject land was zoned rural and adopted the statutory valuation required for rural land.
14. [14]
    The Land Court found that whilst the property was rural in zoning, the highest and best use of the subject property was rural residential, even though the rural property was capable of being supported by primary production.
15. [15]
    The Land Court found that the valuer had properly considered differing attributes of the applicants’ property and those of five comparable sales, but that in stating that the access services and outlook of sale four were similar to the subject property, the valuer erred and that error had some impact on his assessment.  However, the Land Court did not accept the applicants’ analysis of the effects of that error.  Sale four was a smaller parcel of land and it was incorrect to assert that the presence of vegetation management overlays over approximately 23 per cent of the subject land, rendered that land worthless.
16. [16]
    After noting that valuation is not a science and that the court must not act as a third valuer, the Land Court found that as there was error, it was necessary to reduce or increase the valuation to the amount considered necessary.  The Land Court assessed the value of the applicants’ land at $615,000.

Land Appeal Court decision

17. [17]
    The Land Appeal Court recorded that the appeal was a re-hearing on the record of the proceeding below and that it was not to intervene unless it first concluded that there was some factual, legal or discretionary error in the decision of the Land Court.
18. [18]
    The Land Appeal Court found that no error had been demonstrated in the Land Court’s reliance upon the evidence of the expert valuer.  The Land Court properly recognised deficiencies in that valuer’s report, but had regard to the valuer’s evidence of comparable sales, when considering whether it was necessary to reduce or increase the valuation to correctly make the valuation under the Act.
19. [19]
    The Land Appeal Court further held that subject to one matter, the Land Court had correctly considered the comparable sales in reaching the correct valuation.  The qualification was that the Land Court made some allowance for a rise in the value of the land the subject of comparable sale one, in circumstances where the expert opinion of the valuer was that the market had remained steady.
20. [20]
    The Land Appeal Court found that the Land Court did not err in its consideration of other complaints about the expert valuer’s valuation, including the determination that the highest and best use of the applicants’ property was rural residential.
21. [21]
    The Land Appeal Court also found no substance in a contention that the Land Court’s decision was affected by apprehended bias.
22. [22]
    Having regard to the error that had been made, the Land Appeal Court concluded that the correct valuation required a reduction to the respondent’s valuation to $600,000.

Leave to appeal

23. [23]
    The applicants require leave as the notice of appeal was filed out of time.
24. [24]
    The respondent does not oppose leave as the delay was only 10 days.
25. [25]
    In the circumstances, I would grant leave to appeal.

Appeal

26. [26]
    To succeed in an appeal before this Court, the applicants must establish an error of law, or an absence, or excess of jurisdiction.^[3]  Where, as here, the decision involves discretionary considerations, the applicants must establish error that justifies appellate intervention.^[4]

Grounds 1, 3, 4 and 5

27. [27]
    The applicants submit that the Land Appeal Court made factual and legal errors in its consideration that the highest and best use of the applicants’ land was rural residential.  They submit the land was zoned rural and the statutory definition of the zoning rural residential could only apply to non-rural land.  Further, they submit that the evidence showed that the property’s highest and best use was primary production and it was incorrect to assert that the applicants had conceded that its highest and best use was rural residential.
28. [28]
    The applicants’ submissions misunderstand the basis for the decision of the Land Appeal Court.  That misunderstanding arises as a consequence of the use of the term “rural residential” when assigning the highest and best use of the land.
29. [29]
    That term, properly understood, reflected the clear evidence that land zoned rural could be used for rural housing.  That was the basis upon which the expert valuer had proceeded in giving his opinion.^[5]  It was also the highest and best use accepted by the applicants.^[6]
30. [30]
    Unfortunately, because there is a zoning rural residential, the applicants seek to seize on the use of rural residential in a manner which was not its use in the Land Court or the Land Appeal Court.  Rural residential was being used as a short form of the permitted use rural housing.
31. [31]
    Once the record is understood in that way, there was neither a legal nor a factual error in the Land Appeal Court’s decision that the highest and best use of the property was rural housing, even though the property was capable of supporting primary production.  Rural housing was a permitted use under the zone rural.
32. [32]
    There was also no legal error in the Land Appeal Court’s failure to apply the statutory definition of rural residential in the Act.  It had no relevance as the reference to rural residential was not to a zoning.
33. [33]
    For similar reasons, there was no legal error made by the Land Appeal Court in failing to apply case law concerning a hypothetical change in zoning.  There was no such circumstance under consideration.
34. [34]
    Grounds 1, 3, 4 and 5 are not made out.

Ground 2

35. [35]
    The applicants submit that the Land Appeal Court made errors of fact when considering the decision of the Land Court as to the comparable sale property which most closely compared to the applicants’ property.  However, a consideration of the Land Appeal Court’s reasons reveals no such error.
36. [36]
    The Land Appeal Court’s discussion of comparable properties occurred in the context of a ground of appeal asserting error in the comparison on sale one, as the closest value to the subject land.  As the Land Appeal Court observed, not only was the Land Court member’s consideration of sale one as the property most comparable to the applicants’ property open on the evidence, this comparison was necessary as part of a consideration of all of the comparable sales in undertaking the task of determining what was the necessary reduction on the available evidence.
37. [37]
    Ground 2 is not made out.

Grounds 6, 7 and 9

38. [38]
    The applicants submit that the Land Appeal Court made factual errors in relation to there being no evidence of potential for development, other than sale three, and ignored factual evidence presented by the applicants as to their property’s attributes which were relevant to any comparable sales properties.
39. [39]
    A consideration of the decision of the Land Appeal Court does not support a finding of any factual or legal error in relation to such matters.
40. [40]
    The Land Appeal Court properly recognised that the applicants adduced no expert valuation evidence.  The applicants had adduced evidence of attributes of the applicants’ property.  Those attributes were discussed when considering the attributes of the comparable sales properties.  The Land Appeal Court did not disregard that evidence.  The Land Appeal Court recorded that the Land Court had regard to those differing attributes, but had properly rejected their significance.
41. [41]
    Importantly, the Land Appeal Court recorded that the applicants had failed to recognise that comparable sale property four was about half the size of their own property and had incorrectly argued that because 23 per cent of their property was the subject of vegetation management overlays, 23 per cent was worthless.  As the Land Appeal Court observed, the latter contention involved flawed logic and the differing size of the properties meant the applicants’ contention for a valuation of $400,000 was unsupportable.
42. [42]
    Grounds 6, 7 and 9 are not made out.

Ground 8

43. [43]
    The applicants submit that the Land Appeal Court made a legal error when determining that the Land Court had addressed the real issues on the objection appeal.  The applicants submit that the Land Appeal Court erred in not making a finding as to the property’s highest and best use, based on the evidence before the court.
44. [44]
    For the reasons mentioned above, the Land Appeal Court properly concluded that the Land Court had not erred in determining the highest and best use of the property.  The Land Appeal Court found the applicants’ property had a highest and best use of rural housing (adopting the short form rural residential) and applied that use when determining the correct valuation.
45. [45]
    Ground 8 is not made out.

Conclusion

46. [46]
    The applicants have not established any legal or factual error in the decision of the Land Appeal Court.

Orders

47. [47]
    I would order:

1. Leave to appeal be granted.
2. The appeal be dismissed.
3. The applicants pay the respondent’s costs of the appeal.

48. [48]
    BRADLEY JA:  I agree with the reasons of Boddice JA and with the orders his Honour proposes.
49. [49]
    KELLY J:  I agree with the reasons of Boddice JA and with the orders proposed by his Honour.