Blair v Department of Natural Resources, Mines and Energy
[2004] QLC 46
•28 May 2004
LAND COURT OF QUEENSLAND
CITATION: Blair v Department of Natural Resources, Mines and Energy [2004] QLC 0046 PARTIES: Nannette Blair
(applicant)v. Chief Executive, Department of Natural Resources, Mines and Energy
(respondent)FILE NO:
AV2003/0160
DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under Valuation of Land Act 1944 DELIVERED ON: 28 May 2004 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Dr NG Divett ORDER: The appeal is dismissed, and the unimproved value of Lot 1 on RP 73679, as determined by the Chief Executive in the sum of Seven Hundred and Forty Thousand Dollars ($740,000) is affirmed. CATCHWORDS: Valuation – Sales evidence – Comparisons on site basis.
Statutory Valuation – relativity – different land use categories not relevant.APPEARANCES: Miss Blair for the appellant
Mr R Paterson for the respondent
Background:
This matter relates to land at 148 Virginia Avenue, Hawthorne, and described as Lot 1 on RP 73679, Parish of Bulimba. The subject land has an area of 607 m² and is located about 2 kilometres radially east from the Brisbane Central Business District, and is in a prestige riverfront area of Hawthorne. Access is good to Virginia Avenue, which is bitumen sealed with concrete kerbing and channelling. The footpaths are earth formed, and all normal urban utility services are available. The subject land is designated Low Density Residential under the Brisbane City Plan of 30 October 2000, and relevant at the date of valuation of 1 October 2002. The key issues are the nature of the land, relativity, the method of valuation, changes in the valuation and comparisons of sales.
On 24 February 2003 the Chief Executive issued a valuation of the subject land at $740,000. Following an objection the Chief Executive confirmed that figure on 27 May 2003. The appellant has now argued that the unimproved should more properly be $500,000. A preliminary conference before the Judicial Registrar of the Court was held on 17 December 2003, and the matter went to hearing on 25 February 2004.
Miss Helen Blair appeared and gave evidence on behalf of her mother who is the appellant. Mr R Paterson, Principal Legal Officer appeared for the respondent, calling evidence from Allyn Charles Horne, the departmental registered valuer responsible for determining the valuation.
Miss Blair has a long history of residence in the Hawthorne area since childhood, and is familiar with properties along Virginia Avenue. Her family has been involved in property acquisitions for some time, and she is fairly familiar with the features of land which command premium prices in the market place in that locality. While having no formal valuation training, she has worked in an architect’s office, and is familiar with the Building Act and similar legislation. The appellant’s major concern is with understanding the valuation processes involved in the current matter.
Nature of the Land –
The subject land is a rectangular non-river front parcel, falling about 5 metres in height from street level at Virginia Avenue towards the rear. There are no drainage problems. There are good expansive views of the river and the City towards the rear of the property looking westward. The subject land is elevated, falling from 14 metres to 9 metres Australian Height Datum (AHD), as shown on copies of Brisbane City Council (BCC) mapping. (Exhibit 3). It is agreed that the land to the west of the subject land at 146 Virginia Avenue extends to the Brisbane River. The contour intervals indicate that parcel steepens in grade, and then flattens towards the water’s edge. 146 Virginia Avenue is a hatchet shaped parcel of area 1,433 m² with direct river frontage.
The slope across 146 Virginia Avenue falls from the rear boundary of the subject land for about 3 metres in 10 metres, and then falls a further 4 metres in 50 metres to the river’s edge. Mr Horne argues that the steeper fall across 146 Virginia Avenue from the rear of the subject land, has the effect of ensuring that any future dwelling upon that parcel will not obstruct the current unobstructed river views from the subject land. He argues that advantage of the subject land would be a factor evident in any market value of the subject land, as the expansive views are virtually unobstructed.
Mr Horne further argues that the sloping nature of the subject land, and its elevation, are factors which maximise the current river and City views. The appellant has currently built to the maximum level allowable under the current Council Ordinances, which demonstrates Mr Horne’s argument. However Miss Blair advises that, while the appellant does have good river views, there are two factors which should be considered in maintaining those views.
Firstly Miss Blair advises that future planning by the new owner of 146 Virginia Avenue, are likely to involve a subdivision of that parcel into two river frontage parcels. Any new residences on those two parcels would impact the current river views. Miss Blair further advises that the appellant also has to rely upon the good will of that owner to allow her to regularly cut down some palm trees with wide fan-like fronds, which block her views.
Apparently the palm trees had only recently been cut back when Mr Horne had inspected the land, and he was unaware of those circumstances. It is noted in the photographs supplied by Miss Blair (Exhibit 2) that the only significant trees behind the subject land appear to lie within the subject land itself. However Mr Horne notes that if such obstruction did occur in the future, then he would be happy to reconsider the valuation of the subject land. However he believes that the nature of the adjoining hatchet shaped access of 146 Virginia Avenue, and the current elevated nature or the subject land, virtually reduces total obstructions of the views to a negligible level.
In making his valuation Mr Horne has allowed for the fact that the river and City views are in a westerly direction, and subject to afternoon glare from the setting sun. Miss Blair concedes that good views are an important factor in determining the value of the parcel of land, although she does not differentiate whether the views are of a pleasant streetscape nature, or more expansive towards the river and City centre. Mr Horne argues that premiums are reflected in the market place where either river views or City views are available. He notes that the subject land has both types of views, and he has allowed for that accordingly.
Mr Horne further advises that other factors involved in his valuation of the subject land, and his sales evidence comparisons, include the size of the parcels, their frontage and depth, any known problems of stability or drainage, the general amenities and access to the City centre, and the prime location of the parcels. He notes that Virginia Avenue, Hawthorne is a much sought after area of prestige residences. Miss Blair argues that river frontage commands more premiums than river views, which is agreed by Mr Horne.
Changes in the Valuation –
To support her estimate of the unimproved value of the subject land, Miss Blair provides a schedule which shows the recent changes in unimproved values of four parcels in Virginia Avenue, including the subject land (Exhibit 2). She notes that those four contiguous parcels had maintained a steady increase of about 33% each at the previous revaluation at 1 October 2001. However she notes that at the current valuation at 1 October 2002, the three adjoining river front parcels had increased by only 12.7% to 16.5%, while the subject land had increased in value by 74%. She argues that is inconsistent, and excessive, considering the previous history of the general values in that locality.
Miss Blair argues that it is well accepted that direct river frontage properties in that area are generally the most expensive properties due to their limited availability, and their unobstructed access to the river. Miss Blair is familiar with such lands, noting the recent sale of developed residences at Quay Street, Bulimba for $1,099,000, 88 Virginia Avenue for $3,017,000, and Wendell Street for $3,065,000. She asks how can non-river front land such as the subject land, be seen to have increased in value at a much greater rate than those prime river front lands?
In explaining his valuation, Mr Horne advises that as a result of an overall review of relativities throughout the near river lands including Bulimba and Hawthorne, it had been found that the former old relativities between river front lands, and near non-river front lands, had become out of line with the relevant market levels. As a consequence of that study, Mr Horne had progressively undertaken many manual adjustments to the non-river front lands to bring them into line with the market. Such a manual adjustment had been made to the subject land in the current valuation.
He observes that river front lands and non-river front lands are different categories in the valuation process. Mr Horne advises that he did not undertake the 2001 revaluation, but he agrees that a possible lack of sales of near river front lands with river views, may have led to the problem over a few years. On that basis he observes that the subject land may have had conservative valuations previously.
Miss Blair argues that it is inconsistent for Mr Horne to claim that in 2001 the river front lands were experiencing a property boom in values, and were increased accordingly, while maintaining similar increases for the non-river front lands such as the subject land. She argues that river frontage has always been a key criteria in establishing value for land. However the weakness in such a conclusion is whether the original relativities were appropriate, a matter Mr Horne disagrees with. That issue is discussed later. Mr Paterson also cautions against reliance upon percentage increases in value in determining the unimproved value of land.
The Method of Valuation –
Miss Blair is concerned primarily with understanding how the valuation process is undertaken. She is unaware of any written formula which may exist for undertaking such a task. Her family interests over many years had been involved with industrial properties, where a rate per square metre had appeared a reasonable approach. In applying such a comparison with the adjoining parcels, the appellant had concluded her estimate of $500,000. Miss Blair concedes that Mr Horne’s valuation of $740,000 might seem fair when compared with the sales of properties that he has used, but she argues that is inconsistent with the values of the adjoining river front lands.
In explaining his method of valuation, Mr Horne advises that he has analysed sales of vacant or near vacant land in the division of Balmoral overall, and has selected his two sales as the most comparable to the subject land. He has made those comparisons on a site to site basis, following precedent established by the courts. Mr Horne has totally disregarded the previous relativities between properties, establishing the value of the subject land based upon his wide experience of factors, particularly in respect of the value of wide river and City views. He argues that where such views are unrestricted, and at no risk of being obstructed, then significant premiums are involved.
Mr Horne quotes an example at Wynnum, where ocean views were involved, but where future development of a vacant parcel to the seaward side of a parcel could have obstructed those views. He argues such views do not increase the value of such lands as much, where there was a risk of future obstruction. Mr Horne provides no details of that Wynnum property, however he argues that the slope of the subject land distinguishes such an occurrence in the current matter.
In explaining how he selects his vacant land sales, Mr Horne advises that where a purchaser retains an old dwelling for occupation for some period, prior to demolition for a new development, then he would allow some added value for that dwelling in his analysis. He also agrees that in such circumstances where demolition does not occur in the valuation period, then such a sale tends to be used in the following year more as a support sale, rather than as a basic sale. Mr Paterson also notes that valuation is a matter of estimation by a skilled professional, rather than any precise mathematical calculation.
Relativity –
In seeking relativity with adjoining parcels, Miss Blair has sought comparisons on a rate per square metre basis. She notes that the three adjoining properties at 144, 146 and 150 Virginia Avenue, all have similar orientation, elevation, slope and views as the subject land, but also have the advantage of wide direct river frontages. She notes that in the 2001 valuation the following rates per square metre were applied:
ParcelArea Unimproved Value Rate per
square metre
144 Virginia Avenue 2,123 m² $1,280,000 $603
146 Virginia Avenue 1,433 m² $1,020,000 $712
150 Virginia Avenue 1,791 m² $1,330,000 $743
Subject land 607 m² $425,000 $700
Miss Blair notes that the unimproved values are now currently for 1 October 2002:
ParcelUnimproved Value Rate per square metre
144 Virginia Avenue $1,450,000 $683
146 Virginia Avenue $1,150,000 $803
150 Virginia Avenue $1,550,000 $865
Subject land $740,000 $1,219
Mr Paterson advises that certain factors can change from one valuation period to another. As outlined in para [14] Mr Horne had manually revalued the non-river front lands such as the subject land, while the river front lands had been increased by the mass appraisal system using evidence from sales of river front lands, and holding the previous relativity between river front lands. Mr Horne explains that on the sales evidence available there was some resistance against purchasing hatchet shaped parcels, as well as some limited sales evidence of river front lands. In the 2001 revaluation there had been about 8 sales of river front lands for comparative purposes. Mr Horne notes that this was perhaps reflecting the higher prices now demanded for such river front lands, thus resulting in lesser sales available for information about that market segment.
Mr Horne advises that the current Council planning requirements also place a 20 metre restriction strip for open space along the actual water’s edge, within which no new development may proceed. He agrees that there are some existing “as of right” developments such as tennis courts upon the neighbouring lands. However he advises that he has knowledge of only one recent minor relaxation of that open space restriction in that locality. That open space requirement thus limits the actual building area on the river front lands, which has been allowed for in their valuations.
Comparison of Sales –
Miss Blair provides no alternative sales of vacant lands to support her estimation. Mr Horne provides two sales of vacant lands, both of which Miss Blair is familiar with:
· Sale 1 – (188 Virginia Avenue – Lot 21 on SP 153674). This is a 405 m² parcel located about 100 metres north of the subject land. The sale is fairly level at an elevation of about 5 metres AHD, and without any river or City Centre views. It is also smaller in area with a narrower frontage. In periods of heavy rainfall, the sale may experience delays in the dissipation of rain waters due to some backup drainage problems in surrounding low lying streets. Overall the sale is seen as inferior to the subject land. The sale sold in July 2002 for $445,000, was analysed at $443,000, and applied at $404,000 (91%).
· Sale 2 – (Aaron Avenue – Lot 6 on RP 55905). This is a 683 m² parcel located about 300 metres south of the subject land. The sale falls from about the 10 metre to 7 metre (AHD) contours, from the rear to the street, and has a 2 metre diameter stormwater pipe within, and adjacent to its south-eastern boundary. There is also a slight fall from north to south across the sale, which is towards the low point on Aaron Avenue. The sale does not have expansive views of the river and City Centre, as exists on the subject land. The sale is seen as inferior to the subject land. The sale sold in May 2002 for $615,000, was analysed at $600,000, and applied at $550,000 (89%).
Mr Horne advises that his inquiries of the purchaser of Sale 2 confirms that sale was made with incorrect advice in respect of the location of the Council stormwater pipe, thus requiring modifications to the design of the new dwelling currently under construction.
Miss Blair has personal knowledge of that parcel, as she had lived on the adjoining Lot to the south at 64 Virginia Avenue. She has also recently revisited the site, and argues that views of the river can be made from the front south-eastern corner at an elevation of about 6 to 7 metres. Miss Blair explains that river views can be made across the land immediately opposite Sale 2 (Lot 4 on SP 115367 – Whitaker), looking across the swimming pool of that land between trees. Mr Horne discounts that those views are significant, arguing that the Whitaker property across Aaron Avenue could later obstruct those views with buildings or trees, unlike the unobstructed views from the subject land. In explaining his analysis of Sale 2, Mr Horne advises that the added value of $12,000 allowed for the existing dwelling represents the price a purchaser (Cassiniti) obtained for the sale of the old dwelling for removal.
In further explaining the valuation process involved in the annual valuation of the subject land, Mr Horne advises that the parcels are compared on an overall process, rather than by taking individual features selectively. He also advises that various factors such as height, views and frontage, or aspect tend to be weighted differently, and not on a uniform basis.
In respect of Miss Blair’s concerns about some differing notations on Council rate notices in respect of Sale 1 (Malyon), Mr Horne explains the process of “split valuations” which is undertaken when new subdivisions occur. Under that “splits” process a split valuation is placed upon each new subdivided parcel based upon the then current valuation date. In the case of Sale 1, the “split” unimproved value applied to Sale 1 was initially at $290,000 at 1 October 2001. The sale occurred in July 2002, and the information did not get to Mr Horne for some months later. The subsequent unimproved value of that parcel at 1 October 2002 was $404,000.
Both Sale 1 and the adjoining property were sold prior to registration of the plan of survey, a fairly normal occurrence in a rising market place. It is thus possible to appear to get two differing unimproved values of a “split” parcel, over a reasonably short time interval, but the valuations related to different valuation periods one year apart.
Mr Horne also explains that generally the working geographical areas which are seen to follow similar market patterns, are referred to as submarket areas (SMA). The submarket area in this matter is mainly residential properties. Within a submarket area there can be river front lands and non-river front lands, providing the latter are on the river front side of the street. In the subject matter, Sale 1 is within the same SMA as the subject land, while Sale 2 is within a different SMA.
Decision:
The Legislation -
I turn first to the legislation, and note that the unimproved value of land is defined relevantly in s.3(1)(b) in the Valuation of Land Act 1944, which states:
“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.”
While the subject land is currently developed as a residential dwelling, s.3(1)(b) directs that those improvements are to be ignored as if they had never existed. Guidance in that regard follows directions in the decision of the Privy Council in Tooheys Limited v. The Valuer-General (1925) AC 439 where Their Lordships said at 443:
“Now, what he has to consider is what the land would fetch as at the date of valuation if the improvements made had not been made. Words could scarcely be clearer to show that the improvements were to be left entirely out of view. They are to be taken, not only as non-existent, but as if they never had existed. It is, therefore, to approach the question from a completely wrong point of view to begin with a valuation which takes in the improvements and then proceed by means of subtraction of a sum arrived at by an independent valuation in order to find the required figure. What the Act requires is really quite simple. Here is a plot of land; assume that there is nothing on it in the way of improvements; what would it fetch in the market? It will be observed that the value is not what has been sometimes designated by the expression ‘prairie value’. The land must be taken as it exists at the date of valuation.”
That was further clarified in 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.”
In simple terms the land is to be treated as if all improvements had not occurred, while all the existing surrounding developments at the time of valuation are to be considered extant.
I note also that s.33 of the Act directs:
33. Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the chief executive shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered.”
And in respect of a notice of appeal against an annual valuation under the Act, s.45(4) states:
“45.(4) Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner.”
The Nature of the Land –
The two key issues which appear to influence the value of the land, are the elevation and general fall of the land towards the river, and the security and maintenance of the views against future obstructions. Mr Horne argues that the steeper fall towards the rear, and the current maximum height of 8.5 metres for any future buildings, will ensure that the current expansive river and City views will not be impacted. Miss Blair questions that guaranteed continuity of the views.
On the evidence of Miss Blair, if the adjoining parcel at 146 Virginia Avenue was subsequently subdivided into two narrower river frontage parcels, then those owners were likely to seek to maximise their river views by building to the maximum building height of 8.5 metres. I would agree with Miss Blair that the most likely future subdivision of that parcel would be to create two river front parcels, and to build as far from the river as building regulations would allow. I also agree with Mr Horne that relaxation of that building height beyond 8.5 metres, was unlikely, in view of the appellant’s rights to object to such a relaxation. On that basis a building platform at a height of about 6 metres AHD would be reasonable.
On that basis the height of any possible roof obstructions to the river views from the subject land would be about 14.5 metres AHD. Adopting a 6 metre setback from Virginia Avenue for a dwelling on the subject land, would place a building platform at a height of about 13 metres AHD. Clearly I would agree with Mr Horne that the river and City views from a second level on the subject land would be unobstructed by any future new dwellings on 146 Virginia Avenue.
I turn then to Miss Blair’s second concern in respect of the palm trees upon 146 Virginia Avenue, which need regular lopping so as not to obstruct the expansive river views from the subject land. On the evidence before me there is no documentation to support those facts, and I believe that would be a matter for further consideration in a future valuation. The only impact on the current matter is whether those palm trees could place some uncertainty upon the security of the views.
For clarity the Australian Height Datum (AHD) is a mapping level datum adopted across the whole of the Australian continent, and is related to a determination of the average of the mean sea levels for spring and neap tides, occurring over an extended recorded period. For the purposes of this matter it does not mean levels above the river frontage.
Changes in the Valuation –
In considering the matter of percentage increases in valuations, Mr Paterson refers me to the findings in NR and PG Tow v Valuer-General (1978) 5 QLCR 378, where the Land Appeal Court said at 381:
“It follows that a large increase over and above the previous valuation is in itself not a relevant issue provided bona fide sales of comparable parcels support the new valuation.”
A similar conclusion was reached by the Full Court of Queensland, where it considered a matter, similar to the current matter, in the Little Mulgrave Valley near Cairns in CH and BD Henricks v The Valuer-General (1983) 9 QLCR 59, where Macrossan J said at 63:
“The appellants also relied upon a schedule, Exhibit 4 in the Land Appeal Court, which shows percentage increases in the value applied by the Valuer-General to a number of selected parcels of land from the date of the preceding valuation up to the March 1979 valuation date. The percentage increase shown in the selected case was in each instance considerably less than the increase applied to the subject land as between the two valuation dates. The weakness in such a selective comparison is obvious as there could be any number of reasons why blocks in the same valuation area should increase at different rates over a period of five years.”
The Henricks decision supports Mr Horne’s advice that market evidence now supports changes in the previous relativities between river front lands and non-river front lands. The use of a relativity approach for comparing lands of different market categories, was also rejected in DF and M Ward v Valuer-General (1983) 9 QLCR 48, where the Land Appeal Court said at 50:
“Relativity with different land use market categories is not tenable. Such cross-reference of values is not a valid valuation exercise or in conformity with the cardinal principle of valuation which calls for comparisons of like with like in all relevant points of comparison including highest and best use. Sites are valued overall and not on a rate per hectare basis. The experience of the market place reflects the former not the latter practice.”
In adopting comparisons with sales of vacant or lightly improved lands, Mr Horne has followed precedent long held by courts at all levels. That was directed in WM and TJ Fischer v Valuer-General (1983) 9 QLCR 44, at46; R and MM Barnwell v Valuer-General (1990-91) 13 QLCR 13, at 17; and also in PH Clough v Valuer-General (1981-82) 8 QLCR 70, where the Land Appeal Court said clearly at 76:
“It has been judicially laid down many times and in many jurisdictions that in ascertaining unimproved value, sales of unimproved land of comparable quality, situation, etc., to the subject parcel, if they are available, are to be preferred as the best guide for arriving at unimproved value. The reason is obvious. In applying such sales there is no room for error in analyzing the value of improvements.”
The method of comparison in respect of residential lands was clearly defined in Hans and Else Grahn v Valuer-General (1992-93) 14 QLCR 327, where the Land Appeal Court rejected the use of a rate per square metre approach, and said at 330:
“The appellants fail on this point because the appropriate basis for the valuation of a residential lot is not the application of a rate per square metre but an assessment of the unimproved value of each lot as land used for single unit residential purposes. As the Land Appeal Court said in its decision on the appellants’ previous appeal (H and E Grahn v. The Valuer-General, AV89-246 and 247, 13 December 1990):
‘for the purpose of valuing residential sites, the preferable method of comparison is on a site to site basis and not on the basis of a unit area valued comparison. Site for site comparison should take into comparison such matters as the size of the lots, the situation of and access to the lots, the shape and topography of the lots etc. and comparisons on a unit area basis do not necessarily reflect valuation considerations for the above features.’”
Now Mr Paterson has drawn my attention to the headnotes of that decision as noted on 327:
“That it is inappropriate to compare residential lots which have panoramic views with lots which have no real views.”
Mr Paterson explains that that part of the headnote in that matter does not directly reflect the wording of the findings by the Land Appeal Court.
However the circumstances of that matter does provide an analogy with the current matter, in that the appellants in Grahn had sought relativity with a similar size parcel at 9 Whitecliffe Parade, across Whitecliffe Parade, Woody Point. That parcel to the west of Whitecliffe Parade was a similar elevated parcel as the subject lands, which were on the eastern side of Whitecliffe Parade. However 9 Whitecliffe Parade did not have the panoramic views of Moreton Bay that existed at the subject land on the eastern side. While the unimproved values at 1 October 1989 have no relevance to the values in the current matter, it is interesting to note the premium attached for the lands with uninterrupted bay views in that matter. The value of the subject lands with the uninterrupted bay views were $95,000 and $90,000 respectively, while the similar land at 9 Whitecliffe Parade was valued at only $39,500. The impact of uninterrupted bay views in that matter added a premium of between 128% to 140% above the value of the lands with lesser views. There is some analogy in the current matter.
In seeking to understand the process of valuation itself, I am reminded that it is not merely a mathematical process. That was clarified in the matter of Chief Executive, Department of Natural Resources v Radlett Enterprises Pty Ltd (1997-98) 18 QLCR 397, where the Land Appeal Court said at 404:
“As Mason J said in ‘Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd’ (1980-81) 146 CLR 336 at page 381:
‘Valuation is a matter of estimation, not a precise mathematical calculation.’
Valuation is intended to be an interpretation of a market, which in itself is imprecise, even when it is created by vendors and purchasers who satisfy the often quoted qualifications necessary to meet the test explained in Spencer v The Commonwealth of Australia (1907) 5 CLR 418.”
In the matter of In Spencer v The Commonwealth of Australia (supra) the criteria for establishing market value land was clarified by the High Court, where Isaacs J (later CJ) said at 441:
“To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property.”
Comparison of Sales –
I turn then to the sales evidence, and note the following comparisons:
Sale Area Applied Value Comparison
1405 m² $404,000 Inferior – no river views
2683 m² $550,000 Inferior – restricted river views
Subject land 607 m² $740,000 Uninterrupted river and City
views
On those figures there is nothing to show that Mr Horne has followed a wrong principle or made a mathematical error. The only room for consideration is the premium that he has applied for the superior views, and whether they have some inherent risk of being diminished.
If I consider Sale 1 I note that is also a smaller parcel, and has only streetscape views. While Sale 2 is a larger parcel, any river views are through vegetation across Aaron Avenue. While at some future time the appellant may demonstrate that a risk to the uninterrupted views from the subject land could be impacted, at the date of the valuation they are clearly superior to the views from Sale 2. I note also that Sale 2 is impacted by a stormwater drainage line, a feature not evident upon the subject land. On those facts there is nothing to discredit Mr Horne’s valuation.
Summary:
In summarising this matter I note that responsibility falls upon the appellant to prove her case. That has not occurred, and the valuation of $740,000 by Mr Horne is not discredited. I note also that the High Court has directed in Brisbane City Council v The Valuer-General (1977-78) 140 CLR 41, where Gibbs J speaking of the provisions of the Valuation of Land Act 1944, said at 56:
“… once it is shown that in making the valuation the Valuer-General acted upon a wrong principle or made a serious error of fact, the presumption created by section 13(7) is rebutted.”
(Section 13(7) as it then was is now section 33, which states that a valuation is deemed to be correct unless proved to the contrary.)
Conclusion:
Having considered the whole of the evidence I am not persuaded that the appellant has proved her case. The appeal is dismissed, and the unimproved value of Lot 1 on RP 73679, as determined by the Chief Executive in the sum of Seven Hundred and Forty Thousand Dollars ($740,000) is affirmed.
NG DIVETT
MEMBER OF THE LAND COURT
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