Blanche Elizabeth Kennedy & Anotherv.Chief Executive, Department of Lands
[1995] QLC 106
•14 September 1995
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BRISBANE
14TH SEPTEMBER 1995
Re: Appeals against unimproved valuations -
Valuation of Land Act -
AV93-661, 662, 663, 664 and AV95-44, 45, 46 and 47
Blanche Elizabeth Kennedy & Another
v.
Chief Executive, Department of Lands
(Hearing at Townsville)
D E C I S I O N
Appeals AV93-661 to 664 were called on for hearing in the Land Court and the matters heard by Mr C.H. Carter, on 6 June 1994. The appellants were represented by Mr G.W. Eales, registered valuer, who acted as their agent. The decisions, including a decision on an application for costs made by counsel for the chief executive, were reserved.
It seems that the next day, Mr Eales was requested by his clients to have "important corroborative evidence refuting misleading and incorrect information" supplied to the Member, Mr Carter. That of course, was not possible, the hearings having been completed. The appellants then wrote to the Court raising various matters and requesting the Court to accept certain "evidence".
On 14th July, 1994, Mr D.A. Kennedy was advised that, "In view of the serious allegations made by you" the appeals would be re-entered on the list of cases outstanding "for re-hearing to enable you the opportunity to raise these allegations and additional evidence in Court".
In the meantime, another annual valuation had been carried out, further appeals had been lodged and the parties were advised that all appeals would be heard on 11th May, 1995.
The appeal references "93" are in connection with valuations as at 31st March, 1992, while the "95" references are in connection with valuations as at 30th June, 1993. Details of the properties, all of which are in the Parish of Coonambelah, and situated in the suburb of North Ward, are as follows:
AV93-661 and 95-47:
Lot 2, RP 735078, containing 1,078m2, situated Cnr The Esplanade and Ryan Street - valuations at both dates $86,000.
Av93-662 and 95-46:
Lot 1, RP 735078, containing 937m2, situated The Esplanade - valuation at both dates $82,000.
AV93-663 and 95-45:
Lot 5 on Plan T118261, containing 1,085m2, situated Cnr The Esplanade and Rose Street - valuations at both dates $88,000.
AV93-664 and 95-44:
Lot 54 on Plan T118160, containing 1,012m2, situated 40 Rose Street, valuation at both dates $73,000.
Mr Eales appeared before me to again act as agent for the appellants. The Court was advised that Mrs Kennedy is now deceased. Mr D.A. Kennedy, Mrs B.E. Kennedy's son, has taken over the management of the appeal process. He did not avail himself of the opportunity to appear before the Court to give evidence relative to the matters raised in his correspondence. In fact, Mr Eales advised the Court that Mr Kennedy had refused his request to give evidence. Instead Mr Eales had been instructed to tender various correspondence and writings and a copy of the transcript of the hearing on 6th June, 1994, together with photographs of Esplanade erosion and a tidal event. Exhibits which had been tendered at the previous hearing were then re-tendered.
There is a long history of appeals against the valuations of the subject properties. Some of the documents tendered included a copy of a Notice of Objection dated 10th February, 1978, in which extensive reference was made by the objectors to, inter alia, the "Althea cyclonic surge" and lack of insurability against "saltwater action and surge", lack of a protective sea wall and resultant erosion of The Esplanade. Reference had been made at that time to "pictures taken of debris, surge damage ...". Appeals had been lodged through the Court at that time and included amongst the tendered documents were copies of those Notices of Appeal and statements in support of the grounds of appeal.
The reason for this documentation being introduced as "evidence" is that it is seen by Mr Kennedy to prove that the land was affected by a tidal surge when Cyclone "Althea" crossed the coast near Townsville on December 24th, 1971. With the passing of time, those responsible for the task of valuing the subject properties are now questioning whether the land was in fact affected by a tidal surge at that time. In the previous hearing before Mr Carter the valuer had not been aware whether or not it was possible to insure property against damage from sea water.
As on previous occasions, as past decisions indicate, Mr Eales as a valuer, does not contest the general level of values found for properties in North Ward. He submits however that there should be some "statutory" allowance made for those properties identified, in a "Storm Tide Warning Chart" as being potentially susceptible to storm tidal surge and consequent evacuation procedures. It is Mr Eales' evidence that the chart is widely used to assist in local valuation procedures. Valuation evidence for the Department of Lands was given, both before Mr Carter and myself, by Mr A.P. Newcomb, registered valuer. Each of the properties is zoned "Residential D", but valued under s.17(1) of the Valuation of Land Act, as qualifying to be valued on the basis of exclusive use for purposes of a single dwelling-house. Allowance for past filling has been made on Lots 1 and 2, RP 735078 and Lot 5 on Plan T118261, being three properties with frontage to The Esplanade. Comment is made in Mr Newcomb's individual reports that each of these Esplanade frontage lots are "subject to storm surge in extreme conditions". There is no similar comment made with regard to Lot 54 fronting Rose Street, although there is no dispute that the storm tide warning chart depicts the location of each of the lots (and many other lots in the vicinity) as being within "Zone C". "Zone C" is indicated on that chart as being land with elevation ranging from R.L. 5.1 metres to R.L. 6.6 metres AHD.
It should be said at this point that "Zone C" is not, as Mr Kennedy suggested in some correspondence, and as Mr Eales has previously stated (but corrected during this hearing) the zone worst affected by potential tidal surge. The potentially worst affected land falls within "Zone A" (land up to R.L. 3.6 metres AHD) which land is required to be evacuated when there is a storm tide warning of 2.1 metres. The next worst affected is land within "Zone B" (R.L. 3.6 metres to R.L. 5.1) which together with "Zone A" is required to be evacuated when there is a storm tide warning of 3.7 metres to 5.1 metres. Then "Zones A, B and C" are required to be evacuated when there is a storm tide warning of 5.2 metres to 6.6 metres.
It was Mr Newcomb's evidence that the amount of the valuations of the subject Esplanade frontage lots resulted after allowance of 5% in recognition of the direct exposure to any risk from storm surge. That allowance had first been made by another valuer and subsequently accepted by the Land Court and while he held the personal opinion that it was overly generous, Mr Newcomb did not suggest that the established relativity should be altered. The land fronting Rose Street (Lot 54) had not received a specific allowance for storm surge potential, for the reason that it was buffered from direct exposure to the sea by the adjoining Esplanade lots.
Mr Newcomb had given evidence before Mr Carter that he had obtained information from the Beach Protection Authority's Storm Tides Statistics Report for the Townsville region, which indicated that only in the equivalent of a one-in-500-year storm event (or a 10% chance in any one-in-50-year event) would there be produced a tide water level of 3.98 metres AHD which, together with a wave set of 0.2 metre would affect property with R.L. up to 4.18 metres AHD. At that time he accepted from the Storm Tide Warning Chart that the subject land was above 5.1 metres. In answer to the question (p.9 of the transcript) - "Is there any evidence that this property has been affected by tidal surge?", he replied - "I have no evidence that this property has ever been affected by a tidal surge." He gave further evidence about information extracted from a Beach Protection Report compiled in November, 1973, indicating that as a result of Cyclone "Althea", debris had been deposited "at about a level of 3 metres AHD". Under cross-examination he was asked "whether people at Pallarenda or some parts in Rowes Bay and some parts in North Ward are refused insurance" against flooding or tidal surge, Mr Newcomb indicated that he had never heard of anyone being refused insurance; was not aware of any specific cases where flooding insurance was denied and had not investigated the storm surge insurance aspect.
It was Mr Newcomb's evidence relative to the effect of Cyclone "Althea" and his lack of knowledge of the position with the insurance which caused the belated objection from Mr Kennedy and the eventual re-hearing. The question of the provision of a sea wall by the Government to protect public and private lands from storm surge and erosion and the unavailability of insurance against such happenings are matters which the Kennedy family members have been exposing to the Land Court, and others, since Cyclone "Althea". It seems that Mr Kennedy has taken the view that the Land Court should instruct the Government with regard to these matters. If it has not been said before, the Court's role is limited in these matters to determining the unimproved value of the land, based on the evidence put before it - and at each individual hearing. For the purposes of the matters now before the Court it is accepted that, since 1978, there has been a consistent complaint by the appellants that property damage occurred as a result of tidal surge at the time of Cyclone "Althea" and that damage was found, at their personal expense, not to be insured against. It is also fair to say that past decisions of the Court have been given with full knowledge of the appellants' evidence with regard to those matters.
Before me, Mr Newcomb produced a diagram based on "low water datum"; mean sea level at 0 metres AHD, being 1.58 metres above low water datum; the predicted tide levels (excluding surge) on 24th December, 1971, the day Cyclone "Althea" crossed the coast; then the recorded maximum height of the tide at a time a little before 9 a.m. The diagram shows the maximum recorded height of that tide as being in excess of 4 metres (above the low water datum). It is of interest that amongst part of the writings tendered by Mr Eales for Mr Kennedy, was a copy of a statement by Mrs Kennedy which had been provided to the 1978 Land Court hearing. Under the heading "Information Report on Surge" (Althea) is to be found the information that the maximum recorded water level reached was 4.15 metres at 8.50 a.m. at which time the predicted tide level was 1.3 metres (70 minutes after low tide)" with the maximum storm surge at the recorded location (the tide gauge at Townsville Harbour) being 2.85 metres. That information was said to have been sourced from the "Surge Survey of Cyclone Althea, James Cook University". The information contained in Mr Newcomb's diagram is identical provided it is accepted that the basis of maximum recorded height and predicted tide is that above "low water datum". The source of Mr Newcomb's diagram and text on which he relied, was "(July 1979) Beach Conservation Issue 36 (Newsletter of the Beach Protection Authority of Queensland Brisbane)". Mr Newcomb also provided an overlay to the diagram on which was plotted the Australian Height Datum levels. He had made some investigations at the Townsville City Council which indicated to him that the Storm Tide Warning Chart was somewhat inaccurate, in that the level of the appellants' land was between 3 metres and 4 metres AHD, and not the 5.1 metres to 6.6 metres as indicated. Bearing in mind that "Althea" debris had been said to have been deposited at "about 3 metres" the new levels provided by Mr Newcomb may well explain some of the further information relative to the 1978 matter, when Mrs Kennedy had advised in one Notice of Objection against a valuation that "during Cyclone Althea 3 to 4 foot waves surged in. The two back flats were entered by the sea and surge water waves went as high as the floor boards of the front two flats."
Another of the appellants' concerns is the extent of land which has been lost to the actions of the sea over the years, opposite the properties. Photographs provided by both parties confirm that a bank has eroded to between mangroves and The Esplanade road surface. One photograph produced by the appellants shows the water level at a "high tide" up to and overtopping that bank. Mr Newcomb also produced a photograph showing the water level well below the top of the eroded bank at the "Highest Tide in the Month of February of 3.79 metres at 8.24 a.m. on 28th February, 1995".
While the research carried out by Mr Newcomb and the writings and statements to the Land Court by Mrs Kennedy in 1978 and thereafter would seem to be at odds, it is not difficult to accept that the Kennedy properties suffered severe flooding damage at the time of Cyclone "Althea". It is also now not disputed that the Home Insurance Building and Contents Standard Suncorp Policy excludes cover for damage by flood; action of the sea, high water, tidal wave or storm surge; by erosion or landslide or subsidence; etc.
The potential for storm surge and erosion damage has remained as a high level risk in the minds of the appellants, based on personal experience. They have seen the effect of lack of seawall and then insurance protection from that potential as being a major deleterious effect on the unimproved value of their properties. It is their opinion that there is nowhere near sufficient recognition of the storm surge risk by the Department of Lands, when comparisons are made with valuations of other lands where no tidal surge risk exists. The appellants have formed this opinion after researching the valuations applied to numerous lots. It should be pointed out however that the Court is not assisted by the provision of information as to the valuations of other lands in the absence of individual cogent comparisons with the subject lands. In any event, relativity in valuations is clearly a matter to which the Departmental valuers have given consideration. Mr Eales agrees with the appellants in that he says while the base values adopted in the North Ward area are reasonable, insufficient allowance has been made for storm surge potential. He promotes the theory that all valuations of property within the storm surge evacuation areas should receive a statutory reduction. He suggests that in the case of the subject property "somewhere between 10% and 15%" would be realistic.
Mr Newcomb sees the chances of further damage from a storm event as being so remote that not even the allowance for Esplanade exposure is warranted. He says that the valuation base has been reached on the recognition of the low elevation of the land but also taking into consideration the positive features of sea views and outlook. It is the general submission on behalf of the Department that the valuations of each individual parcel have been made historically on the basis of comparison with sales of other lands. As at 1992, it is said that while there were no directly comparable sales, the sales evidence generally throughout Townsville supported the levels of value and relativity adopted. As at 1993, the evidence overall indicated that no movement in value had occurred since the previous valuation. Particular reference was made to a number of sales made by the Townsville City Council in May 1993, to various purchasers, of 805m2 sea view sites situated at Palm Street, Rowes Bay, at prices in the range of $94,000 to $104,000. These sales were seen as supporting the base levels of value adopted for the subject lands before any allowances. While it was not raised it is observed that Palm Street land is shown on the Storm Tide Warning Chart to be within "Zone B" (to be evacuated before the subject lands).
On the evidence before me I am satisfied that the basis of at least the 1993 valuation is supported by the Palm Street sales and that the actual valuations represent a fair interpretation of the value of the individual lots after due consideration has been given to location and physical features. It is suggested that in view of the evidence as to the relative level of the land (being lower than indicated on the Storm Tide Warning Chart) the additional allowance made for the exposure of The Esplanade lands is seen to have been warranted, against the suggestion of over-generosity as made by Mr Newcomb.
I find that to make some further "statutory" allowance when a basis of direct comparison, at least in terms of sales of land within evacuation zones, is available, would be offensive to acceptable valuation principles.
This decision in these matters is somewhat lengthy. Issues raised by the appellants have been again considered although little weight can be placed on much of the material placed before the Court. All of the material tendered, whether eventually relevant or not, has been perused. Mr Kennedy's writings indicate that he sees the need to have all current and past arguments continually placed before this Court apparently as support for arguments which will be raised in some other place, when property damage inevitably, in his mind, next occurs. It would be wrong for Mr Kennedy to regard the Court as a repository for the storage of material considered to be some form of support to a lobby to have certain perceived wrongs corrected.
In the end result, there is no evidence before the Court which would indicate to me that the valuations have been proved wrong. Each appeal is dismissed and the valuations of the chief executive affirmed.
RE WENCK
MEMBER OF THE LAND COURT
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