Amos v Department of Natural Resources, Mines and Energy
[2004] QLC 56
•16 July 2004
LAND COURT OF QUEENSLAND
CITATION: Amos v Department of Natural Resources, Mines and Energy [2004] QLC 0056 PARTIES: Edward Amos
(applicant)v. Chief Executive, Department of Natural Resources, Mines and Energy
(respondent)FILE NO:
AV2003/0435
DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under Valuation of Land Act 1944 DELIVERED ON: 16 July 2004 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Dr NG Divett ORDER: The appeal is dismissed, and the unimproved value of Lot 5 on RP 18691 as determined by the Chief Executive in the sum of One Hundred and Thirty Thousand Dollars ($130,000) is affirmed. CATCHWORDS: Practice and procedures – Valuation of Land Act 1944 – Notice of valuation – Way in which an objection may be made – Validity of the notice – Substantial compliance with Obligation – Section 41(A)(2)(c).
Practice procedures – Statutory interpretation – “Expressio unius est exclusio alterius” exercised.APPEARANCES: Mr P Gray for the appellant
Mr R Paterson for the respondentSOLICITORS: Hollingworth and Spencer for the appellant
Background:
This matter relates to land at 11 Edmondstone Street, Newmarket, and described as Lot 5 on RP 18691, Parish of Enoggera. The subject land has an area of 567 m², and is located about 4 kilometres radially north of the Brisbane Central Business District. Access to Edmondstone Street is reasonable, as Edmondstone Street is a very busy service road connecting the northern suburbs, as discussed later. Edmondstone Street is bitumen sealed with concrete kerbing and channelling, and an earth formed footpath with a concrete pedestrian strip. All normal urban utility services are available as discussed later. The subject land is included in the Low Medium Density Residential area of the Brisbane City Plan 2000, effective at the date of valuation of 1 October 2002. The key issues are the validity of the valuation, impact of the adjoining service station, impact of a combined sewer line, relativity and comparison of sales.
On 24 February 2003 the Chief Executive issued a valuation of the subject land at $149,000. Following an objection the Chief Executive confirmed that figure on 24 July 2003. The appellant has now appealed claiming the unimproved value should more properly be $100,000. By Court Notice of 27 January 2004 a hearing was set down for 19 March 2004. Following a request for adjournment by the appellant the matter was heard on 6 April 2004. Following a further review the Chief Executive revised the unimproved value under s.68 to $130,000 on 2 March 2004, which is the figure now appealed. There was no objection conference undertaken.
Mr P Gray instructed by Hollingworth and Spencer, Solicitors appeared for the appellant, calling evidence from Edward Amos, an experienced licensed real estate agent. Mr R Paterson, Principal Legal Officer appeared for the respondent, calling evidence from Douglas Buchanan, the experienced departmental registered valuer now accepting responsibility for the valuation. The original valuation was undertaken by another registered valuer no longer available to defend the valuation.
Nature of the Land –
The subject land is an irregular shaped rectangular parcel, with frontage at street level, and falling gently to the rear. The land has no views, and is presently developed with a dilapidated dwelling which is unoccupied. Mr Amos has owned the property since 1969, and advises that there was some surface flooding of the site during the 1974 flood. Mr Amos advises that the old dwelling has been unoccupied for about 5 or 6 years, due to its state of disrepair, and difficulties associated with the adjoining service station complex, and its poor access problems. Mr Amos agrees that the dwelling is unsuitable for human habitation at present, and provides copies of Enforcement Notices from the Brisbane City Council. (Exhibit 4).
To support the appellant’s claim that the subject land suffers from severe disabilities, Mr Amos provides copies of a “Show Cause Notice” from the Brisbane City Council of 2 February 2001. That notice issued under s.22 of the Building Act 1975 advises that the building is dangerous, and foreshadows that a notice to demolish the building could be forthcoming. Mr Amos apparently convinced the Council that it was his intention to reinstate the building in the future.
Mr Amos further provides a copy of an “Enforcement Notice” of 25 March 2004 from the Brisbane City Council, directing that the property is deemed to be dangerous to persons, and certain actions are to be taken under the Workplace Health and Safety Act 1995 in order to secure the site and the building. An appeal was available to that notice within five days of the issuing of the notice, but there was no further evidence on that matter. Mr Amos argues that those formal directions by the Brisbane City Council support his argument that the property is so badly affected by its location, that it is not feasible to attract a tenant to the property, hence its enforced lack of maintenance. Mr Buchanan disagrees, noting that the subject land has been valued as if it was vacant land, without the presence of the existing old building.
Mr Amos argues that the adjoining service station to the west of the subject land is a 24 hour and 7 days a week operation. That station is also used as a State-wide training centre involving additional activities beyond those normally associated with a busy service station. He particularly draws reference to the all-night time activities of vehicles, which detract against residential use on the subject land. The service station has overhead floodlighting against the common boundary with the subject land, which provides glare upon the subject land.
The location of the subject land on busy Edmondstone Street is also a major problem, with traffic backing up across the entrance from the traffic lights at the intersection of Enoggera Road and Edmondstone Street, only 30 metres west of the subject land. Edmondstone Street is agreed to be a major connecting road from the northern suburbs to the Ashgrove area, and has heavy traffic levels, particularly during peak hours. Traffic calming procedures have been installed in Edmondstone Street, east of its intersection with Baradine Street, in order to discourage through traffic from Newmarket Road to the east. There are also some sporting and social club facilities east of Edmondstone Street which occasionally add to the traffic flows.
Mr Buchanan agrees the traffic impacts are quite severe, although he argues they are less than traffic flows along Enoggera Road, which is a major six-lane road. However Mr Buchanan agrees that the subject land suffers from traffic noise and exhaust fumes from traffic, which often back up beyond Foster Street to the east along Edmondstone Street. Mr Amos notes the traffic noise from Enoggera Road is also experienced on the subject land. Mr Buchanan advises that has been allowed for in his reduced valuation of $130,000.
Mr Amos also argues that major fuel tankers enter the service station at the entrance near the subject land, and discharge bulk fuel into the holding tanks at regular intervals. Mr Buchanan agrees that would occur, but notes that the fuel bowsers and service facilities are on the Enoggera Road frontage, and further removed from the subject land. However he agrees that there is a row of carports along the boundary adjoining the subject land, perhaps associated with the Training Centre which is to the rear of those carports. The service care centre is in front of the Training Centre, and faces towards Enoggera Road. (Exhibit 7 - photographs).
Mr Buchanan concedes that in making his valuation he was not aware of the presence of the Training Centre facility, or that the service station operated on a continuous basis. However he feels that the allowance for disturbance from the service station operations has been generous at $19,000 (12%), and would cover those extra impacts. He advises that other properties adjoining service station sites elsewhere have been allowed at a lesser impact than the subject land. However Mr Buchanan had allowed more because of the operations at night time that occurred. He concedes that the 24 hours per day, plus the Training Centre would add to the intrusion, but he believes that he has allowed sufficiently to cover for those unforeseen extra impacts. Mr Amos challenges that deduction as inadequate. It is agreed that there are commercial premises across Edmondstone Street from the subject land.
Impact of a sewer line –
Mr Amos advises that a key disability of the subject land is the presence of a “combined sewer” line across the subject land. He argues that the only single sewerage service is via a combined drain for sewerage, which services two properties, including the adjoining parcel to the east at 13 Edmondstone Street. (Mr Voorinen – Lot 6 on RP 18691). That sewer line is towards the centre of the subject land entering from the western boundary. Mr Amos further advises that there is currently only one toilet underneath the current building on the subject land. As an experienced real estate agent he advises that a single downstairs toilet is a negative feature when seeking tenancies, and he argues that must impact the value of the subject land.
To further clarify his concern with the “combined sewer” line, Mr Amos draws support from his experience with another of his properties at 64 Newmarket Road, Hendra, where he had encountered problems with the Brisbane City Council. That land was also serviced by a “combined sewer line”, that serviced a single old dwelling upon two 500 m² parcels of land. Mr Amos made inquiries of the Council to remove the old dwelling, and build two new homes on the existing separate parcels. He was advised that such action could not proceed unless he constructed separate sewer lines to the new dwellings, plus provide a new sewer line to the adjoining parcel that shared the “combined sewer line”.
The estimate cost of those new works by a Council contractor was about $20,000, with a further headworks charge by the Council of $35,000 to $40,000. Mr Amos was not sure of the legal basis for the Council demanding headworks charges in such situations, but he argues it is Council policy. Because of those large costs he was unable to proceed with his redevelopment plans. Mr Amos advises that similar problems confront many developers based upon his experience with property matters. He argues that severely limits the potential of the subject land.
Mr Amos advises that such a redevelopment would be considered a material change of use, requiring an impact assessment under the Integrated Planning Act. That would involve potential objections from neighbours. He argues that the sewer problem, plus the building setback requirements, would severely restrict development of the subject land, and any upgrading of the use of the land. He notes that the land has only a narrow road frontage to Edmondstone Street. Mr Amos advises that developers resist purchasing parcels with a combined sewer drain, unless they can acquire the property at a substantially reduced cost of about $100,000 in order to allow for the above uncertainties.
Mr Buchanan argues that in his opinion the presence of a “combined sewer” line would make no difference to the unimproved value of the subject land. He has based his valuation upon the understanding that sewerage was available for a single dwelling purpose under s.17 of the Act. However he concedes he had not checked with the Council to confirm that opinion, as he believes there would be many similar parcels with combined drain sewerage connections in that older residential locality. Mr Buchanan also was not sure of that understanding without a formal application to the Council, which would be a further cost in the valuation process. However he has examined Council sewerage maps, and notes the presence of a sewer line servicing not only the subject land, but also other parcels to the south of his Sale 1 fronting Parker Street. (Exhibit 5, page 14).
However he was unable to disagree with the estimate of costs provided by Mr Amos, if those conditions were relevant to a redevelopment of the subject land. Mr Buchanan also agrees that the location of an existing sewer line could influence the future location of any new development upon the subject land. However as the sewer line was already in existence, he could see no real problem in connecting to it. Mr Gray argues that such a limitation must affect the effective use of the subject land in respect of the flexibility in locating any new redevelopments, as compared to a parcel of land without such an encumbrance. (See Exhibit 6 – Water and Sewerage Reticulation Standards – 1999). Mr Buchanan agrees that any redevelopment of the subject land would require a development application to the Council.
Relativity –
Mr Amos draws relativity with the adjoining parcel at 13 Edmondstone Street (Lot 6), which he notes is larger than the subject land at 625 m², yet was similarly valued at $149,000, prior to the further reduction of $19,000 to allow for the service station disabilities on the subject land. Mr Amos argues that the original valuation of the subject land at $149,000 could not have allowed for the extra 10% of area of Lot 6. Mr Buchanan was not aware of why the two adjoining parcels previously had the same unimproved value at $149,000, but his amendment to $130,000 was to bring the subject land into line with other parcels in the area. He argues that both parcels have the same frontage, and as a long narrow lot, the extra depth would add little difference in the valuation.
Mr Amos seeks some relativity with a similar sized parcel in adjoining Badger Street, which has no impacts of traffic or the service station. However he provides no specific details, and that is no real assistance in this matter.
Mr Gray also questions the mass appraisal process of the lands, which he argues makes no allowance for the difference in size of the parcels, and merely applies an indexing factor to the previous valuation. Mr Buchanan refutes those allegations, explaining the general revaluation approach now undertaken.
Comparison of Sales –
Mr Amos agrees that the use of sales of comparable lands is a good starting point for the valuation, but argues that the sales chosen by Mr Buchanan are not truly comparable, as none have the same disabilities as the subject land. However he agrees that comparisons with sales of similar sized lots, which is then adjusted for the disabilities, is a fair approach. While not providing any sales of his own to support his estimate of the unimproved value, Mr Amos is familiar with Mr Buchanan’s sales.
Mr Buchanan provides the following sales of vacant or lightly improved lands:
· Sale 1 – (33 Enoggera Road, Newmarket – Lot 62 on RP 209805). This is a 319 m² Low Density Residential parcel located about 300 metres south of the subject land. Vehicle access is available only from a rear easement to Parker Street. There is no direct access by vehicle to Enoggera Road from Parker Street, and access to the City is via Foster Street and Edmondstone Street. The sale is below Enoggera Road, with a medium fall to the rear, and a medium cross fall from north-west to south-east, with a westerly aspect. The sale is smaller than the subject land, has restricted access, and fronts busy Enoggera Road. However the sale is superior, as it does not adjoin a service station, is not opposite commercial properties and is not near a major traffic intersection. The sale sold in April 2002 for $155,000, and was analysed at $150,000.
· Sale 2 – (37 Enoggera Road, Newmarket – Lot 14 on RP 209788). This is a 306 m² parcel adjoining Sale 1 to the south. The sale has similar features as Sale 1, and is also superior to the subject land. The sale sold in May 2002 for $155,000, and was analysed at $150,000.
· Sale 3 – (Enoggera Road, Newmarket – Lot 78 on RP 846692). This is a 305 m² parcel located about 1 kilometres north of the subject land. The sale only has rear access to Farm Street, and faces west to busy Enoggera Road. The sale is below road level with a gentle fall from south to north. The sale fronts the busy arterial road, is smaller in size, with restricted access and faces west. However the sale is superior to the subject land for similar reasons to Sales 1 and 2. The sale sold in September 2002 for $195,000, and was analysed at $190,000.
· Sale 4 – (Enoggera Road, Newmarket – Lots 76 and 77 on RP 149291). This is a 418 m² parcel adjoining Sale 3 on the corner of Enoggera Road and Farm Street. There is an access easement for Sale 3 over Sale 4. Access and disabilities are similar to Sale 3. The sale is seen as superior to the subject land for similar reasons as Sales 1 and 2. The sale sold in June 2002 for $183,000, as an earlier sale in a rising market to Sale 3, and was analysed at $178,000.
To further support his valuation Mr Buchanan analysed 30 vacant land sales selecting the above four as his most comparable. He also was aware of a total of 118 improved residential sales in the Windsor division, choosing the following two improved sales as a check on his analysis from vacant land sales.
· Sale 1 – (8 Parker Street, Newmarket – Lot 3 on RP 54700). This improved parcel has superior access from the street, faces south with a gentle cross fall from west to east. The sale adjoins a three-storey brick hostel to its west, and is located about 250 metres south of the subject land. The sale has an area of 607 m², and is improved with a timber dwelling of area 99 m² in good condition. (Circa 1920/1930). There is access from Enoggera Road to Parker Street, but access to Enoggera Road is similar to Sales 1 and 2 of the vacant lands. The sale is superior in location, size and shape, and sold in April 2002 for $290,000. The dwelling was analysed at $64,000, and the other improvements at $15,000, and the analysed land value at $211,000, which was applied at $192,500.
· Sale 2 – (8 Furlough Street, Newmarket – Lot 1 on RP 45123). This is an improved parcel one lot removed to the west of Enoggera Road, and located about 450 metres south of the subject land. The sale has an area of 455 m², falls gently from the road, has no views and a northerly aspect. The sale is opposite a Child Care Centre entrance, and is improved with a highset timber dwelling of area 72 m² in good condition. (Circa 1930). The sale is in a superior location, with left turning access only from Enoggera Road. The sale is smaller in size with a superior shape. The sale sold in January 2002 for $250,000, the building was analysed at $43,000, and other improvements at $10,000, giving a land analysed value of $197,000. That parcel was applied at $187,500. Neither Sales 1 nor 2 adjoin a service station.
Mr Amos challenges Mr Buchanan’s opinion that traffic noise would be greater at any of the vacant land sales, which front directly on to Enoggera Road. He argues that traffic along Enoggera Road at those localities is more free flowing and not subject to stopping and low gear starting of heavy vehicles as occurs at the subject land. Mr Paterson notes that Enoggera Road has a rising gradient at both locations of Sales 1 and 2 and Sales 3 and 4, but Mr Amos argues that it is not steep enough to require larger vehicles to change gears regularly. He also notes that dwellings on all four sales would be much further from Enoggera Road traffic than on the subject land. Mr Amos argues all four vacant sales are vastly superior to the subject land. He further notes that traffic noise tends to travel upwards, and noise exposure is a function of distance from the source. Mr Paterson argues that noise attenuation would be minimal over that small difference between the sales and the subject land from Enoggera Road. Mr Amos disagrees arguing that noise at the four sales would be greatly reduced.
Mr Buchanan agrees that the traffic on Edmondstone Street would be much heavier than on Parker Street or Furlough Street, which he argues is reflected in his unimproved values. Mr Buchanan also agrees that the dwellings on Sales 1 and 2 of vacant lands are further from the traffic due to the wider footpath required by the Council. But he argues that the difference between the two sites would make little significant difference in noise intensity. Mr Buchanan was also unaware whether any of his sales had combined sewer drains or not.
Mr Buchanan further explains that his analysis of his two improved sales adopted the areas of the dwelling from aerial photography. He then applied unit costs of construction from Rawlinsons Australian Construction Handbook, 20th edition 2002; and also from the web pages of the Traditional Queenslander Construction Standard Designs. Both of those guides, plus his wide experience of 1930s dwellings, allowed him to estimate the cost of construction, to which he then applied a small depreciation rate to allow for the ages of the buildings in order to ascertain the added value that they brought to the sale. Because of the well maintained condition of the dwellings, he had only applied between 20% and 30% depreciation.
In seeking comparisons with the improved Sale 1 (8 Parker Street) Mr Buchanan notes that the impact of the flats construction to the rear of the subject land (Lot 2 on RP 94973), would be less than the three-storey hostel access adjoining the south-western corner of 8 Parker Street. He notes that access to the flats at the rear of the subject land is to Enoggera Road to the south of the service station site. While access to the hostel near 8 Parker Street is restricted only to adjoining 8 Parker Street.
The Validity of the Valuation –
Mr Gray argues that apparent inadequacies in the current notice of valuation process, virtually make the current valuation of the subject land null and void, as it does not satisfy the mandatory requirements of s.41(A) of the Act. To support that conclusion he provides a copy of the annual valuation notice (Exhibit 3). Mr Amos confirms that only that notice of 24 February 2003 was sent by ordinary post to the postal address of the appellant. He notes also that the address was incorrectly addressed to an “Edward Amir” rather than the correct name of “Edward Amos”.
Mr Gray argues that the Act is very specific in that s.41(A)(2)(c) states that “the way in which an objection may be made”, must be included in the valuation notice. As the notice of 24 February 2003 failed to meet that mandatory obligation upon the Chief Executive, then it is argued that the revaluation of the subject land is void, and the existing valuation of the subject land should remain at its previous level of $99,000. (Section 39, which was determined for 1 October 2001).
Mr Paterson refutes that assertion, noting that the notice of valuation states “an objection may be lodged at the above address”. Mr Paterson argues that the use of the word “lodged” implies something in writing. The words “an objection to be lodged” anticipates in the notice of valuation for some written communication to be forwarded. Based upon the principle of substantial compliance, he argues that satisfies the requirements of s.41(A)(2)(c), and the current valuation should therefore be found to be valid.
Decision:
Validity of the Notice of Valuation –
I turn first to the legislation, and note that the process of annual valuation is established in part 4 of the Act. Under that part 4 the Chief Executive is directed to make a valuation under s.37(1), unless considerations under s.37(2) direct otherwise. In the current matter the impact of s.37(2) is not relevant. If a valuation for any reason is not made, then s.39 directs that the last proceeding valuation shall continue in force. Mr Gray argues that the use of the words “as required by this part” has the wider meaning of including the whole of part 4 in the required process of the annual valuation, and also has applications in understanding s.41(A). In respect of s.37(1) the words “must make an annual valuation” are taken to be mandatory; while s.37(2) uses the discretionary word “may” for the Chief Executive to decide not to make a valuation. The wording of s.39 in “shall continue in force” is also mandatory.
Where an annual valuation has been made under s.37(1), then the particulars of the valuation are to be made available for inspection (s.40). Section 40(3) provides that failure to provide particulars of the valuation does not make the valuation void or affect its date of operation. The notices of places for inspection are advertised to the public under s.41 which relevantly states:
“Advertisements
41.(1) The chief executive shall, after completing an annual valuation, advertise in a newspaper circulating in the area in respect of which the valuation was made –
(a) that the valuation has been made; and
(b) that particulars of the valuation will be available for inspection by any person, without payment of a fee, for a period of not less than 42 days starting on a stated day and at the stated places and times.
(2) In addition to advertising the matters referred to in subsection (1) pursuant thereto the chief executive may advertise them in such manner and on such occasions as to the chief executive seem desirable.”
Pursuant to the making of an annual valuation the Chief Executive advises owners in accordance with s.41A which relevantly states:
“Notice to owners about valuation
41A.(1) As soon as practicable after making an annual valuation of all land in an area or a valuation of land or a valuation of land for rental purposes, but not later than 31 March in the year in which the valuation is to take effect, the chief executive must –
(a) for an annual valuation give to each owner of the land in the area a notice (an ‘annual valuation notice”) about the valuation of the owner’s land; and
(b) the annual valuation notice or notice of valuation for rental purposes must -
(a) be in the approved form; and
(b) state that the owner may object to the valuation within 42 days after the notice is given to the owner; and
(c) state the way in which an objection may be made.”
If I look then at s.41A(2)(a) I note that “the approved form” is defined in s.2 to mean a form approved by the Chief Executive; which I take to be the form of the annual valuation notice issued to the appellant on 24 February 2003 (Exhibit 3). If I consider directions contained in s.41A(2)(b) I note that the owner may then object to the valuation within 42 days after the notice is “given to the owner”. There may be some presumption that the issuing of the annual valuation notice on 24 February 2003 satisfies the directions of s.41A(2)(b). However the recent decision of the Queensland Court of Appeal in Boyle and Power v Townsville City Council LAC No 9 of 2003, 24 October 2003, unreported, clarifies that it is the subsequent date of receipt by the normal course of post to the owner which is the relevant date for objection. (Acts Interpretation Act 1954, ss. 39 and 39(A)). However that is not an issue in this matter.
I turn then to Mr Gray’s concern that the actual annual valuation notice sent to the owner in this matter was deficient in that it did not specify the “way in which an objection may be made”. Mr Gray specifically argues that the notice failed to state the following requirements:
· It must be in writing (s.42(1)).
· It must specify the particulars required by Form 48 (Local Government, Property ID Number, amount of valuation, real property description, and owners name and signature).
· Advice that the owner must specify what the unimproved value is considered to be. This is seen as relevant to costs under s.70. However s.70 relates to costs relevant to an appeal to this Court and is not directed at the objection process to the Chief Executive.
Mr Gray further seeks support in the provisions of s.40(3) which expressly directs that failure to make available particulars of an annual valuation within the specified time limits outlined in s.40(2), shall not affect the validity of the valuation or its date of effect. He argues that the rule of statutory interpretation of express inclusions meaning also implied inclusions in that section, provides clarity of the intentions of the Parliament in respect of the rest of part 4 of the Act. He argues that had the Parliament intended that s.41A could only partly be complied with, then it would have provided similarly as it did in s.40(3). As the Parliament had not done so, he argues then it must be assumed that any failure to satisfy s.41A must make an annual valuation notice invalid.
Mr Gray relies in his argument on the principle of statutory interpretation expressio unius est exclusio alterius (Statutory Interpretation in Australia by Pierce and Geddes, (section 4.22), pages 105-108). The basic tenet of that interpretation is summarised as meaning that
“It is a reasonable assumption that where legislation includes provisions relating to similar matters in different terms, there is a deliberate intention to deal with them differently.”
However that citation also cautions the inappropriate application of that principle, noting court decisions where the rule has only been applied with extreme caution.
For example it is noted that application of the rule will be guided by the impression gained from a background to the legislation itself, including the similarity of the subject provisions being considered, and the precision of the drafting, and subsequent amendments to the legislation. (Deputy Federal Commissioner of Taxation v Lincoln Industrial Cleaners Pty Ltd (1975) ALR 118). In respect of this guidance Mr Gray argues that as s.40(3) was inserted in the Act in 1985, and has remained unaltered ever since. As s.41A was inserted in 1997, and subsequently amended in 2000, the opportunity for the amendment of s.41A to align with s.40(3) clearly was not seen as appropriate. On that basis Mr Gray argues that it must have been the intentions of the Parliament for full compliance with s.41A to be mandatory.
If I look then at s.41A I find that when it was inserted in the Act in 1997, its focus was only upon an annual valuation notice. With the 2000 amendment that expanded the requirement for the notice to individual owners to also apply to valuations for rental purposes. But the wording of s.41A(2) retained its original format in respect of the need to comply with the “approved form” and “way” in which an objection may be made.
On that reading I could agree with Mr Gray that the Parliamentary draftsman had perhaps intended the difference to remain between the interpretation of s.40(3) and s.41A. However it could also be interpreted that with the continuous repetition of amendments to the Valuation of Land Act, those differences were being overlooked within the broad overall scope of the intentions of the legislation. It is noted that the Act has been subjected to 52 amendments to almost every section since its inception in 1944. Seventeen of those amendments occurred since 1997, being on average more than twice yearly. The potential for inconsistency between provisions must be considered.
However I note that the exclusion of the similar provisions was upheld by the High Court in Salemi v McKellar [1977] 137 CLR 396, where differences of expression were considered in respect of the deportation of prohibited immigrants and aliens under the Migration Act 1958. The plaintiff had entered Australian on a Temporary Permit in 1974, which had then expired in 1975. The Commonwealth argued that the plaintiff was a prohibited immigrant, and proposed to deport him under s.18 of the Act. The respondent argued that the contrast between s.14 of the Act which provides for provisions dealing with the conduct of an alien and immigrants who are being considered for deportation; and s.18 dealing with procedures for a prohibited immigrant, distinguishes the need for a formal request for reconsideration by a Commissioner in line with natural justice. In accepting that the provisions of ss.14 and 18 of the Act were directed at different obligations under the Act, Gibbs J, with whom the majority of the Court agreed, said at 421:
“The Act gives to the Minister in the case of a prohibited immigrant a power which is on its face unfettered and which stands in contrast to the conditional and control powers given by sections 13 and 14. Having regard to all these considerations, I conclude that the power given by section 18 is not subject to an obligation to observe the principles of natural justice, and that the Minister may issue a deportation order under that section without first giving the person affected an opportunity to be heard. This conclusion is consistent with that reached in a number of cases in which it has been held that an alien is not entitled to be heard before a deportation order is made against him.”
In considering the application of Salemi I note that the plaintiff (Salemi) was either to be identified as a person who has previously had a right to reside in Australia (an alien or an immigrant), or a person who has no right to reside in Australia (a prohibited immigrant). Section 12 provides the power for the Minister to deport an alien who has been convicted of an offence; while s. 13 provides similar powers in respect of an immigrant who has been convicted of an offence within five years of entering Australia. Those are two entirely separate rights relating to persons being deported in my opinion, can be distinguished in the current matter as the inspection process under s.40(3) and then subsequent notice to owners processed under s.41A, are separate stages of dealing with an objection process. I would be careful in deciding that the two processes should be dealt with entirely separately.
I note also that the expressio unius principle was followed in Kabale Holdings Pty Ltd v Chief Executive, Department of Transport (1997-98) 18 QLCR 166, where the claimant had sought damages for compensation under a heading of disturbance following resumption for road purposes. The Land Appeal Court said at 193:
“This is a case in which we think the maxim expressio unius est exclusio alterius may safely be applied. Although the claimant has sought to put this part of its claim under the heading of disturbance, it is obviously enough a complaint of injurious affection prior to resumption. It is well established of course that the categories of damage may overlap but the essence of the complaint is one of injurious affection. … The express reference to injurious affection at the time of resumption indicates that injurious affection prior to resumption is something for which compensation cannot be sought.”
The use of the interpretive rule in that case revolved around factual circumstances of that case, where a matter of injurious affection had occurred prior to the date of resumption, and clearly had no basis for compensation. Clearly any rights resulting from injurious affection should be treated entirely separately to matters dealing with disturbance. I see no analogy in the current matter.
If I turn then to the matter of PJ Ryan’s Hotels Pty Ltd v PM and J Casey & Ors [2004] QSC 105, 27 April 2004, I note that dealt with the matter in respect of actions dealing with the Liquor Licence and a Gambling Machine Licence at the Rising Sun hotel in Townsville. The arguments were whether the various provisions of the Gaming Machine Act 1995 were to be read as inclusive of actions that dealt with whether a Liquor Licence is “cancelled, transferred or surrendered” under s.96(1); or whether a Liquor Licence is “transferred” under s.78(5). In that matter Muir J said at paragraph [21]
“[21] The terms “cancel”, “transferred” and “surrendered” when used in s 96(1) obviously refer to different acts or processes. By operation of the principle expressio unius est exclusio alterius, the legislature, by implication, although concerned to prevent surrenders during the pendency of allocation disputes has not deemed it necessary to prevent cancellations or transfers. It follows that, in my view, the mere existence of an allocation dispute cannot suspend or otherwise impinge on the operation of section 78(5).”
There is, in my opinion, some support from Ryan’s Hotels in the current matter as that dealt with procedures, similar to the procedures in the objection process of the Valuation of Land Act. However some caution must be exercised as, contrary to the outcomes in the Ryan’s Hotels matter where ownership of a licence is removed by some process, the right to object under s.41A of the Valuation of Land Act remains, even if the land is transferred to a new owner. (S.46(2)).
I am also referred to the matter of Bass & Anor v Permanent Trustee Company Limited & Ors [1999} 189 CLR 334, where the Full Court found at 348:
”Although the rule of construction embodied in the Latin maxim expressio unius est exclusio alterius is not a rule of universal application, it is to be inferred from the precise specification in s.2A of the manner in which the Act ‘binds the Crown in right of the Commonwealth’ that that section was intended to be a complete and exhaustive statement of the Act’s application to the Commonwealth. That being so, the specification in s.2A(2) that the Act is to apply to the Commonwealth ‘as if [it] were a corporation’ leaves no room for it to apply on the further basis that, in s.6(3) and 75B(1), the word ‘person’ extends to the Commonwealth. Thus, the terms of s.2A indicate a contrary intention for the purposes of s.22(1)(a) of the Acts Interpretation Act so that the word ‘person’ in ss.6(3) and 75B(1) does not extend to the Commonwealth body politic.”
That is clearly a constitutional matter, where the various provisions of the Trades Practice Acts were found to not relate to either the Commonwealth or the State of New South Wales. The Court found that the separate provisions of the Judiciary Act or the Crown Proceedings Act or the Acts Interpretation Act could not be interpreted to infer to the different procedures of the Trades Practice Act. While the High Court noted that the maxim did not have universal application, it did relate specifically to the definition of what constitutes the Crown. In my opinion, it is a long bow to draw direct analogy with the current matter.
If I then consider the opposing view that it would be unsafe to use the expressio unius maxim in interpreting the intentions of the Parliament in respect of the operations of s.43(1)A, I note that caution has been raised by courts at the highest level. In the matter of Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, the High Court by majority decision found that reading ss.39(3) of the Racing and Gaming Act 1952 in Tasmania, should not be read in isolation from the principles of natural justice. As a consequence it was bound upon the Commission to serve notice and hear submissions from the plaintiff as to why he should not be banned from any racecourse as specified. In that matter Barwick CJ in a minority decision supported the interpretative maxim, following his previous conclusions in the Salemi case. (See paragraph [45).
In Heatley, Aickin J, with whom the majority agreed, said at 507:
“The detailed procedural requirements which one finds with respect of clubs, racecourses and bookmakers all have a separate origin in earlier individual Acts. Their aggregation in the present Act does not appear to me to warrant the conclusion that, wherein one part of the Act powers are conferred upon the Commission without specific procedural requirements, the Commonwealth is free in such cases to disregard the ordinary principles of natural justice.”
Aickin J went on to criticise the emphasis of the Court below, where he argued that too much emphasis had been given in their judgment on the administrative character of the Commission, and where exclusive powers from other provisions in the Act were implied in the decision to “warn off” the plaintiff. Aickin J noted that approach was inconsistent with principles in decisions of the High Court, and said at 513:
“This is especially so when one bears in mind the history of this legislation and the separate origins of the various sets of provisions. Such an approach is one likely to be fraught with difficulty and danger. It is perhaps an over-simplification to regard that process of reasoning as an application of the maxim expressio unius est exclusio alterius but it nonetheless has the same kind of dangers and calls for the same kind of caution as does the use of that maxim.”
However the use of the expressio unius maxim has been applied as support of a predetermined interpretation by the New South Wales Court of Appeal, in the matter of Carr & Anor v Finance Corporation of Australia Ltd (1980-81) 147 CLR 246, per Gibbs CJ at 254 and also Mason J at 257. In that matter the High Court considered the matter of default under a mortgagee power of sale exercised under s.57(3) of the Real Property Act 1900. The High Court was asked to decide whether the judgment in the Court below was final, and whether there then lay a right of appeal to the High Court.
The application to the High Court had sought leave to argue a matter, which was not ventilated in the Court below, that action to execute the power of sale was not valid because it did not satisfy s.57(5) of the Act. The difference between s.57(3) and s.57(5) lay in the express requirement of s.57(3) to give a notice of sale which complied with that section, while s.57(5) relied upon powers conferred by s.58. The High Court refused the application to the High Court, but ordered that special leave be given for the applicant to appeal to the Supreme Court to enable “the correctness of the decision in Morrisey v Bright [1978] 2 NSWLR 2, and the effects of section 57 to be considered.” (p.250).
In making that conclusion the High Court in effect accepted that s.57(3) and s.57(5) may be considered separately, as they had different effects upon a different mortgagor, while being conscious Morrisey v Bright had concluded otherwise that ss.57, 58 and 58A should not be read as procedural whether they were taken together or singularly. (Hutley JA at p.7). That direction on Carr by the High Court merely allowed the Court below to reconsider the previous matter, and is not a definitive application of the expressio unius approach.
However perhaps the most useful guidance in this matter relates to the matter of Rylands Brothers (Aust) Ltd v Morgan & Ors (1927) SR (NSW) 161. In that equity appeal the Court upheld that difference did occur between the statutes which conflicted where it remained unclear about the rights for a chairman to execute a casting vote. While the Court overturned the decision of Long Innes J, it did not rely upon the expressio unius rule in reaching its conclusion. Long Innes J had rejected that rule, when he said at 168-169:
“while it regards the argument based in effect upon the maxim expressio unius exclusio alterius, I feel that it would be unsafe in this case to place much reliance upon a canon of construction which must always be applied with caution and only in appropriate cases. In Colquhoun v. Brooks (19 Q.B.D. 400, at 406) Wills J., in the course of his dissenting judgment on the construction of the Income Tax Act (16 and 17 Vic C34), said:
‘I may observe that the method of construction summarised in the maxim expressio unius exclusio alterius is one that certainly requires to be watched. Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make expressio complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind; and the application of this and every technical rule of construction varies so much under differing circumstances, and is open to so many qualifications and exceptions, that it is rarely that such rules help one to arrive at what is meant.’
In the same case in the Court of Appeal, which reversed the decision of the Divisional Court, Lopes L.J. (21 Q.B.D. 52, at 65) said:
‘The maxim expressio unius exclusio alterius has been pressed upon us. I agree with what is said in the Court below by Wills J. about this maxim. It is often a valuable servant, but a dangerous master to follow in the construction of Statutes or documents. The exclusio is often the result of inadvertence or accident.’”
The matter of specific compliance with a notice from the Chief Executive in respect of a decision on objection under s.43 of the Act was considered by this Court in Trezise v Chief Executive, Department of Natural Resources (1997-98) 18 QLCR 387. In that matter the appellant argued that the computerised notice had been issued without any formal signature of the chief executive’s delegated officer. The Member found that while such a notice was legal, it did little to generate confidence in the public’s attitude to such a process. He said at 395:
“In the context of modern government the intentions of the Valuation of Land Act in section 96(2) is to provide for the printing of computer generated notices, often in large numbers. While the current practice of not displaying any “written mark” in respect of a signature, may be legal under the Act, I can easily understand how an unsuccessful objector may be confused. Few people seek redress in the courts without serious contemplation of the consequences of their appeal. It would be a useful public service if a computer generated “signature” could also be adopted as a further proof of the official sanction of the decision. However, in the current matter I find the notice to the appellant from the chief executive on 6 January 1997 does, in fact, satisfy the requirements of the Act.
It is pleasing to note that the practice has now been amended, and the notice to Mr Amos has a computer generated signature of the Director-General. While that issue is different to the current matter, it demonstrates the Government’s responsiveness to the public’s concerns in such matters.
The matter of whether s.40(3) provides guidance on the intentions of the Parliament in respect of s.41A(2)(c), needs to be considered in the light of the words in s.40(2) which states:
“40(2) Particulars of an annual valuation may be made available pursuant to subsection (1) and any time after the making and shall be made available not less than 3 months before 30 June on which the valuation is to have force and effect.”
The operative word in that section is that particulars “shall” be made available. It does not use the word “must” as used in s.41(A)(1).
The use of the word “shall” was considered by the Land Appeal Court in Stubberfield v Valuer General (1992-93) 14 QLCR 490. In that matter the Land Appeal Court considered the statutory interpretation, and history, among others, of s.16(B), 16(D), 16(E), 16(F), and 16(H) as they then were, and which are now ss.37, 39, 40, 41 and 43. Section 41A was subsequently inserted in the Act in 1997 and amended in 2000. The amendments in 2000 were to include references to a valuation for rental purposes.
In the context of the legislative history of those sections, the Land Appeal Court found that the use of the word “shall” in s.43 should not be interpreted as mandatory in respect of the time limit set at that time as 60 days after the lodging of an objection under s.42. Section 43 has subsequently been amended to include the words “as soon as reasonably practicable” in line with the decision in Stubberfield.
Now s.41A(1) uses the words “must give to each owner an annual valuation notice”; and s.41A(2) also uses the words “must state the way in which an objection may be made”. I note that the word “must” in legislation conveys a meaning of absolute obligation, and occurs in legal understanding as not being merely directory by nature. (Posner v Collector for Interstate Destitute Persons (Victoria) (1947) 74 CLR 461, at 490 per Williams J). The Concise Oxford Dictionary also defines the word “must” to mean to be obliged to do something. That understanding is also conveyed by s.32CA(2) of the Acts Interpretation Act. On that understanding of the wording of s.41A places on the Chief Executive an obligation to give to the owner advice about the proposed value of the land, the owner’s right to object against the value, and the way or how the owner may proceed in that objection.
The use of the words “give to each owner” in s.41A(1) may be construed to mean to deliver or hand over to the owner (Concise Oxford Dictionary); and has been found to have a primary meaning of the placing of a material object in the hands of the owner. (Words and Phrases Legally Defined, vol 2, p.320). I note also that s.39 of the Acts Interpretation Act 1954 provides:
“39(1) If an Act requires or permits a document to be served on a person, the document may be served -
(a) on an individual -
(i) by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document;
(2) Subsection applies whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.”
The meaning of “service by post” is defined in s.39A.
In line with that guidance I note that the Chief Executive is directed to interpret the Act in the manner which bests achieves the Act’s purpose (s.14A). He may also use such extrinsic material as necessary in interpreting the Act as conveyed by the ordinary meaning of the provision (s.14B(1)(c), which must have regard to the purpose of the Act. On that basis it is appropriate for the Chief Executive to include other directions to the owner which could assist the owner in preparing his objection.
I turn then to the understanding of the wording of s.41A(2)(c), and note that the word “way” is defined as the specified direction; or the condition, state or degree of some action. The word “way” may also be taken to refer to the form of an objection by the owner, inferring the customary method of responding, perhaps indicating the arrangement and literary style of the objection response. (Concise Oxford Dictionary). Mr Gray offers the opinion that the spirit of s.41A(2)(c) would be satisfied had the Chief Executive attached a copy of the objection Form 58.
In respect of further understanding of the meaning of “the way in which an objection may be made”, I note that any objection by the owner is directed to be in writing, which is to be posted or lodged with the Chief Executive (s.42(1)); and that the decision by the Chief Executive on any objection is to be issued to the objector as a “written notice”. (ss.43 and 43(C)(1)(c)). I note similar directions are included in respect of appeals to this Court under s.45(3), 45(4) and 45(5), were a written notice of appeal is to be filed with the Court. In those matters, while there is no specified format for the notice of appeal, and appeals may be in correspondence format, there is also an official gazetted Form 59 which provides further details. However appeals are accepted without the Forms 58 or 59.
I note also that the annual valuation notice of 24 February 2003 specifically states that “an objection may be lodged” with the Chief Executive. Those words also suggest that the objection must be in writing if it is to be lodged, which is taken to mean to deposit with an official a formal statement of complaint or information. That is consistent with s.39(2) of the Acts Interpretation Act. Mr Paterson argues that it is self-evident that to lodge something it must be in written communication form, which will convey to the Chief Executive the wishes of the owner.
Mr Paterson further argues that if it was to be determined that s.41A(2)(c) had not been fully complied with in the current matter, then he seeks support in the matter of Scurr & Ors v Brisbane City Council (1973) 133 CLR 242, in respect of substantial compliance with the intentions of the Act.
In Scurr & Ors there had been inadequate particulars supplied for a proposal for a Myers Target Discount “Shop” at Mount Gravatt in Brisbane. That site was part of the Mount Gravatt Showgrounds, the use of which, for a purpose other than for a public purpose, was rejected by the Privy Council in Brisbane City Council v Attorney-General for Queensland [1978] 3 All ER 30. However in the High Court decision the matter was restricted to the legal definition of whether the Town Planning application had been complied with by the applicants.
In the High Court decision Stevens J, with whom the other Members agreed, noted the principles to be applied when determining whether mandatory or directory understandings were required. He drew support from the words of Gilliard J in SS Constructions Pty Ltd v Ventura Motors Pty Ltd & Ors (1965) 10 LGRA 201. In that matter, similar to the Scurr appeal, the Court had to determine whether an application notice inviting public comment in respect of a future development was adequately defined. The Court noted that the notice “did not set out clearly the purpose and effect of the permit sought”. (228). Gilliard J went on to say at 228:
“It seems to me that the purpose and effect of the grant of a permit should be so described that the impact of the future user of the particular land on the neighbourhood in an area already zoned can be properly assessed by anyone reading the notice. It should not be left to inference.
… So, in this case, I believe that when the legislature required that the ‘purpose and effect’ of the permit should be clearly set out, the nature of such purpose and effect should not be left to conjecture or speculation. It must be stated explicitly. First, any objector should have clear information whether the applicant is seeking a permit to build or to erect some edifice, or is merely asking for a permit to use land for some stated purpose.”
However I believe that SS Constructions can be distinguished in the current matter, in that there was no confusion possible for Mr Amos in respect of the intended action by the Chief Executive. The only lack of clarity possibly lay in the “way” in which the directions of the Chief Executive could be understood.
The Scurr matter also considered the issue of substantial compliance where Stephens J said at 256:
“That which the statute calls for is not compliance with precise and detailed formalities, some of which might be admitted without affecting substantial compliance; substantial compliance can in this case only be achieved by giving adequate particulars and strict compliance calls for no more than the giving of those same adequate particulars. The particulars of the advertisement will either be sufficient to affect the legislative purpose of giving notice to the public of the application or, if not, will not amount even to a substantial compliance with the statute.”
In his conclusions in Scurr, Stephens J noted the difference where compliance with the statute was an essential requirement within certain specific time or procedural constraints. In that regard he drew directly from the decisions of the Privy Council in Edward Ramia Limited v African Woods Ltd [1960] 1 All ER 627, per Lord Tucker at 630. In the current matter the time constraints of 42 days was clearly expressed, although that constraint has now been extended by s.43. The procedural directions, or the “way” of the objection is the only issue at question.
The matter of substantial compliance with a statutory direction was also considered in Cullimore v Lyme Regis Corporation [1961] 3 All ER 1008. In that matter Edmund Davies J noted that even where a directory interpretation of a statutory requirement is involved, for it to be valid, then there should be substantial compliance with the requirements of the Act. While that matter dealt with a directory notice from a coast protection authority, which was subsequently found to be out of time as established in the legislation, it can also be distinguished for the reasons noted in para [56].
Now while the requirement of s.41A(2) are to be taken as obligatory, the directions of Stephens J in Scurr at 256, provide guidance on whether substantial compliance has occurred. The High Court has directed that what the State calls for is not compliance with precise and detailed formalities, some of which might be omitted without affecting substantial compliance. In the current matter, I agree with Mr Paterson that the general thrust of part 4 of the Act in respect of correspondence is that it should be in writing, stating the wishes of the owner. I am also persuaded by Mr Gray to read the whole of part 4 of the Act as providing the “valuation process” for an annual valuation. (transcript 61). On that basis I conclude that the annual valuation notice issued to the appellant on 24 February 2003, was a valid notice under the Act, and has effect for further considerations in this matter.
In respect of the current practice of the Chief Executive to normally include a valuation information brochure with the annual valuation notice, I note that information on how to lodge an objection is specifically detailed as follows:
“To lodge an objection:
· Complete a notice of objection (form 58) which is available from NR and M offices or from the website at
the form to the address shown at the top of your valuation notice.”
The provision of such information would appear to adequately support the directions of s.41A(2)(c).
In respect of the appellant’s advice that the notice arrived by ordinary post, without the mentioned valuation information brochure, I note that was unfortunate, but, in my opinion, it does not make the annual notice of valuation invalid. I note also that the meaning of the words used in the Act, references to dictionaries, and the common sense construction of s.41A(2)(c) follows guidance in Halsbury’s Laws of England (Butterworths) 4th edition, vol. 44(1), paras 1369 onwards.
Impact of the adjoining Service Station -
I turn then to the substantive evidence, and note that it is agreed by both parties that the business operations of that facility provide a major disability to the subject land. Mr Buchanan has provided for those in his valuation. I note the appellant’s concern that such activities have mitigated against the feasibility to attract a tenant. However I note that the adjoining property (Lot 6) is almost as near to the service station, and yet is occupied and apparently well maintained. It could be that the lack of a tenant is more related to the failure by Mr Amos to commit resources to a maintenance programme. Certainly there are other properties adjoining service stations which are not in such a neglected condition throughout Brisbane.
However I agree with Mr Amos that the vehicles queuing at the traffic lights at Edmondstone Street are at a greater disability from noise, fumes and access, than the passing traffic at any of Mr Buchanan’s sale comparisons, as discussed later. While Mr Buchanan was also not aware of the continuous operations of the service stations, or the existence of the training centre, I believe his generous allowance of 12% for the proximity of that facility, by comparison with other service station sites, would appear to have covered such unknowns in the valuation.
Impact of the Sewer Line –
In considering the potential impact of the combined sewer line, I turn to the Brisbane City Council Water and Sewerage Reticulation Standards. (Exhibit 6). I note that s.2.1.7.1 states:
“2.1.7.1. COMBINE DRAINS
Combine drains, where more than one property shares common private drainage, shall not be created as part of any sewer or private drainage works.
Existing combine drains shall be replaced with Council sewers where the hydraulic load or number of dwellings or properties served by the combine drain is increased.”
I note also that the unimproved value of a parcel of land is relevantly defined under s.3(1)(b) of the Valuation of Land Act 1944 as follows:
“3.(1) For the purposes of this Act –
‘unimproved value’ of land means –
(b)in relation to improved land – the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require, assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist.”
An understanding of that definition of the subject land is that the land is to be valued as if it were vacant, but all of the improvements surrounding the land, including services such as the sewer line, are to be considered as extant. In that regard I note the findings of the Privy Council in Tetzner v. Colonial Sugar Refining Company Limited (1958) AC 50 where Their Lordships said at 57:
“What in Their Lordships’ opinion is required in the present case is that the physical improvements, with any value which they attach to the land on which they are situated, be excluded from the valuer’s computation. The land will then be valued as land devoid of buildings but situated in the community with the amenities and facilities which have grown up around it.”
On that basis I agree with Mr Buchanan that the existing sewer service to the subject land is to be taken as available to the site. However, because of its nature as a “combined drain”, the presence of the sewer line across the subject land to the adjoining Lot 6 must also be considered to exist in the unimproved value. But that is similar to situations evident in many areas of Brisbane where existing sewer lines pass across a succession of parcels before entering the main sewer facilities. The question in such cases is to be asked how does that existing sewer line limit the development of a new dwelling?
Before considering such a question, I note that the subject land has been valued under s.17(1) as a site for a single dwelling house. Section 17(2) defines a single dwelling house as:
“17.(2) In subsection (1) – ‘single dwelling house’ means –
(a) a dwelling used solely for habitation by a single household; or
(b) a dwelling used solely for habitation by a single household –
(i) part of which is used or for use as a furnished room or furnished rooms; or
(ii) with a single self-contained flat; or
(c) a building consisting of 2 flats used solely for habitation; or
(d) a building consisting of 2 self-contained units, known as a ‘duplex’ and used solely for habitation.”
If I consider then the impact of the “combined drains” in the Council Regulations, I find that the responsibility to provide new service connections, as argued by Mr Amos in para [14], rests upon any new development that would increase the “hydraulic load or number of dwellings” upon the site. As a single dwelling for a single household under s.17(2)(a), there should be no legal power for the Council to seek further contributions, beyond the normal Council drainage connection fees. Any pressure to extend such penalties are, without further evidence, unlikely to be sustainable elsewhere on appeal.
While the future use of the subject land, without upgrading of the sewerage connection facilities, is more limited than those identified in s.17(2) of the Act, its valuation for such a purpose must be seen in the comparisons made with the sales evidence. The facts are that the existing sewer line across the centre of the subject land is a feature that would be contemplated by a prospective purchaser. Any construction across the sewer line to Lot 6 would involve possible “bridging costs”, additional to the normal costs of construction. While there was no suggested cost provided to the Court in this matter, normal building costs indicate that would not be a major problem or cost. In relation to Mr Amos’ claim that developers only seek lands with combined sewers, where they can be acquired at larger discounts, I believe that generally relates to actions where increased use of the land is anticipated.
Comparison of Sales –
On considering Mr Buchanan’s use of sales of vacant land, I note that method has long been preferred by the courts at all levels. That was clarified in NR and PG Tow v Valuer-General (1978) 5 QLCR 378, where the Land Appeal Court said at 381:
“Courts of the highest authority have laid down that the best test of value is to be found in the sales of comparable properties, preferably unimproved, on the open market round about the relevant date of valuation and between prudent and willing, but not overanxious parties.”
That was later followed in WM and TJ Fischer v Valuer-General (1983) 9 QLCR 44, where the Land Appeal Court said at 46:
“It is indeed a fundamental principle of valuation that the best basis for assessment of unimproved value is the use of sales of vacant or lightly improved parcels.”
And again followed in R and MM Barnwell v Valuer-General (1990-91) 13 QLCR 13, where the Land Appeal Court said at 17:
“The Valuer General in this case has used the sales of unimproved or lightly improved properties as a valuation basis and it is clear that he has not erred in principles in valuing the subject land on the basis of such sales analysis. Nor has it been shown that the Valuer-General made any serious error of fact.”
On the comparisons provided I find the following:
SaleArea Analysed Value Comparison
1319 m² $150,000 Superior
2306 m² $150,000 Superior
3305 m² $190,000 Superior
4418 m² $178,000 Superior
None of those comparisons have impacts as heavy from traffic, are not adjoining a busy service station, or are across the road from commercial properties.
If I look then at Mr Buchanan’s sales of improved properties as a check on the value of the subject land, I find the following comparisons:
Improved Sale Area Unimproved Value Comparison
1607 m² $192,500 Superior
2455m² $187,500 Superior
It is also noted that neither of those improved sales are on as busy a road as the subject land, or adjoin a busy service station, although Sale 2 is opposite a child minding centre. However I believe that the traffic outside Sale 2 would be much lighter than at the subject land. I accept Mr Buchanan’s analysis of the improved sales, and his method of their analysis, and there is no scarcity of comparable sales.
If I seek to quantify the relative impact of the major differences between the sales and the subject land, I gain some assistance from the applied value of the adjoining parcel at 13 Edmondstone Street (Lot 6), which was applied at $149,000. While that parcel is slightly larger than the subject land at 625 m², I agree with Mr Buchanan that, on a site value basis, that would provide little additional value. Both Lot 6 and the subject land appear to have similar frontages to Edmondstone Street, and both experience similar traffic impacts, share the combined sewer line, and are both across the road from commercial premises. Both also adjoin the flats on Lot 6 on RP 94973 to the rear. The only difference of any significance is that the subject land adjoins the service station.
If I then compare 13 Edmondstone Street at $149,000, which must be accepted under s.33 of the Act as being correct, then the difference of $1,000 in value from the vacant Sales 1 and 2 would have little allowance for the different impacts of the traffic, and also the commercial premises at 13 Edmondstone Street. However Sales 1 and 2 are nearer to the lower lying land near Kedron Brook along Parker Street to the east.
If I seek comparisons with Sales 3 and 4 and 13 Edmondstone Street, I find that the analysed values of those two sales, which tend to be higher and are well clear of the floodways, would suggest differences of about $38,500 (Sale 4), to $43,500 (Sale 3). As Sale 4 has the disadvantage of an access easement in favour of Sale 3, it would be reasonable to assume that a difference of about $40,000 would apply to those comparisons with the lesser traffic impacts, and not opposite commercial premises. Those analyses would appear to support the differences with 13 Edmondstone Street. On that basis an unimproved value of the subject land in Edmondstone Street, without the service station would be about $149,000.
In seeking an assessment of the impact of the adjoining service station, as noted in para [78], I accept Mr Buchanan’s estimate of that disability at about $19,000 (12%). On that basis there is no evidence that Mr Buchanan has made an error of fact, and he has not applied a wrong principle of valuation.
I turn then to Mr Gray’s concerns that the mass appraisal system used by the Chief Executive has inadequacies, in that it only applies an indexing factor, ignoring differences in size of the parcels. That concern has been raised many times in this Court, and I will refer to the decision and analysis of that issue in BG and AK Wilson v Chief Executive, Department of Lands (1994-95) 15 QLCR 63. The Land Appeal Court determined at 70:
“The process in our opinion does not offend the statute.”
In summarising this matter I am reminded that under s.33 of the Act the valuation of the Chief Executive is deemed to be correct, unless proved to the contrary. I am also reminded in respect of a notice of appeal that the onus is upon the appellant to prove his case. That has not occurred in the current matter.
Conclusion:
Having considered the whole of the evidence I am not persuaded that the appellant has proved his case. The appeal is dismissed, and the unimproved value of Lot 5 on RP 18691 as determined by the Chief Executive in the sum of One Hundred and Thirty Thousand Dollars ($130,000) is affirmed.
NG DIVETT
MEMBER OF THE LAND COURT
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