Brauer v Chief Executive, Department of Natural Resources
[1997] QLC 167
•17 October 1997
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BRISBANE
17 October 1997
Re: Appeal against Annual Valuation
Valuation of Land Act 1944
Valuation Roll No 11440/60000
Local Government: GCCC-Albert
(AV97-102).
Gregory C Brauer
v.
Chief Executive, Department of Natural Resources
(Hearing at Coolangatta)
D E C I S I O N
Background:
This appeal relates to a property at Quinn's Hill Road, West Stapylton, and described as Lot 19 on RP 115590. The subject is located approximately 4kms east of the Beenleigh Post Office, and has an area of 3.46 hectares. Electricity and telephone are available, and the subject is a cleared, rectangular parcel which is used as a rural residential homesite. The land is zoned as "Rural" under the Town Plan of the Albert Shire of 24 February 1995, and effective at the date of valuation of 1 October 1996. The key issues relate to the comparison of sales, relativity with adjoining parcels, the impacts of an adjoining quarry and crematorium, and the impact of the Council's Strategic Plan.
Access to the subject is good from Quinn's Hill Road which is bitumen sealed with earth shoulders. The land falls from Quinn's Hill Road to an area of low-lying land towards the centre of the parcel and then rises to an area of medium elevation at the rear of the lot where the dwelling is located. The land is designated as "open space area" under the Strategic Plan Map 7 Stapylton/Yatala Interim Industrial Structure Plan. The Chief Executive, Department of Natural Resources, issued a valuation at $115,000 on 10 March 1997. Following objections, the Chief Executive confirmed that valuation on 26 May 1997, and the appellant appealed to the Court claiming the unimproved value should more properly be $40,000. In evidence the appellant argued that his legal advice had been to claim a value of $40,000, but the appellant now amends the quantum of his appeal to $90,000.
Mr NC Brauer appeared and gave evidence for his son, the appellant; and Mr B O'Connor appeared for the respondent, calling evidence from Mr AJ Dalgarno, the Departmental Registered Valuer accepting responsibility for determining the valuation.
Evidence:
Mr Brauer argues that his family had been long-term residents of the area since 1865, and he feels that recent prices paid by some neighbours were inflated and not a true reflection of the value of the property. The subject land is used as a homesite for his son, and also partly to graze some family cattle. Mr Brauer argues that the lot is impacted by activities associated with the blasting and extraction of gravel from a quarry which adjoins the rear of the subject. While the blasting does not occur daily, it however causes disturbance which impacts the value of the subject. The dwelling has been constructed towards the rear of the lot, so that it is adversely impacted by the noise of the quarry, in spite of a small ridgeline and timber which shield the quarry operations from view.
Mr Brauer also claims that the presence of a crematorium and funeral parlour on Lot 4 on RP 137744 on the south side of Quinn's Hill Road, and almost opposite the subject, further impacts the value. Because of the nature of the operations of the crematorium, and smoke from their chimney, he claims the area is not seen as attractive for residential purposes. Traffic moving to and from the crematorium by mourners is also seen as impacting the amenity of the subject.
In supporting his valuation, Mr Dalgarno supplied the following sales of comparable properties:
• Sale 1 - (160 Rotary Park Road, Alberton - Lot 166 on W 31175)
This is a 4.889 hectare lot located about 2 kms north of the subject. The sale has good access to Rotary Park Road and Enkelmanns Road, both of which are bitumen sealed with earth shoulders and channelling. There is also legal access to an unformed Marlowe Road. The sale is cleared, regularly shaped, of medium elevation falling gently from both formed road frontages towards a shallow gully in the centre of the parcel. Electricity and telephone are available and the sale is zoned as "Rural". The sale is considered overall superior to the subject due to its easier topography and slightly larger area.
The sale sold in October 1996 for $138,000 which after allowing for clearing provided an analysed value of $135,000 and an applied value of $138,000.
•Sale 2 - (Burows Road, Alberton - Lot 2 on RP 891540)
This is a 3.3 ha lot located about 1.5 kms north of the subject. The sale is a cleared regularly shaped lot with good access to Burows Road which is bitumen sealed with earth formed shoulders and channelling. Electricity and telephone are available. The sale is generally of low elevation, falling gently from the road to a low-lying flood-prone area at the rear. The sale is considered overall inferior to the subject due to its topography and elevation and being partly flood prone. The sale is zoned as "Rural".
The sale sold in October 1996 for $95,000 which, after allowing for clearing, provided an analysed value of $92,500 and an applied unimproved value of $83,000.
•Sale 3 - (Beitz Road, Alberton - Lot 2 on RP 6852)
This is a 5.107 ha property located about 4kms north-east of the subject. The sale has good access from Beitz Road which is bitumen sealed with formed earth shoulders and channelling. Electricity and telephone are available. The sale is cleared and regularly shaped of low elevation and mostly flood prone with a small flood free area suitable for building near the road. The sale is zoned "Rural" and is considered overall inferior to the subject due to its location, topography and elevation, being mostly flood prone.
The sale sold in November 1996 for $103,000 which after allowing for clearing provided an applied unimproved value of $90,000.
Both parties agree that while the centre of the subject is low lying, it is not subject to general flooding. By agreement with the parties, I inspected the site.
Decision:
In respect of the impact of the crematorium and funeral parlour to the south of Quinn's Hill Road, I note that Mr Dalgarno accepts that some potential purchasers would find those uses a problem. However, he believes they are generally accepted within the community, and there has been additional vegetation screening for privacy provided around the carparking areas fronting Quinn's Hill Road.
In the matter of traffic passing the subject as a consequence of the funeral parlour, I note Mr Brauer's claim that most of the traffic comes along Quinn's Hill Road from Yellowood Road to the west of the subject, and therefore passes the subject. While that may be so, I also note that there are direction signs to the funeral parlour at the junction of Quinn's Hill Road and Stapylton-Jacob's Well Road to the east of the subject. Overall I note that Mr Dalgarno has made some provision for the crematorium and funeral parlour in his determination, particularly as the dwelling is placed well to the rear of the subject.
In the matter of the impact of the quarrying operations to the rear of the subject, from my inspection I note that the quarry is not visible from the subject. The land rises to the top of a small ridgeline in Lot 3 on WD 6397 (the quarry land) and then falls into the actual quarry operations area. The ridgeline is vegetated with trees which also form a visual buffer. That aligns with the zoning allocations illustrated in a map provided to the Court showing "Town Planning Zones". The area for "Extractive Industry" covering the quarry area, has an area of "Commercial Industry" between the subject and the quarry. Clearly the purpose of the zoning map is to designate the buffer area provided by the ridgeline.
However, while the appellant is spared the visual impact of looking down into the quarry operations, he does suffer from any noise and dust as a consequence of those operations. Mr Dalgarno also claims to have made an allowance for those matters in his determination.
Mr Brauer also gave evidence that he believed the unimproved value of the subject was higher than adjoining lots which were owned by his two other sons. While there was no direct evidence of the quantum of those values, Mr Brauer confirmed that Lot 18 to the east was used for grazing purposes in conjunction with Lot 22 to the west of the subject. Mr Dalgarno agreed and noted that those parcels had accordingly been afforded a concessional valuation under s.17 of the Act. The evidence provided no conclusive indication whether the subject was indeed in reasonable relativity with surrounding parcels, but indicated that any reduction in Lot 18 was as a result of exercising discretion by the Chief Executive under the Act.
I turn now to the comparison of sales, and note that Mr Brauer provided no evidence to support his case in this regard. By comparison Mr Dalgarno has provided one sale seen as superior (Sale 1), and two sales seen as inferior (Sales 2 and 3). Before considering the value to be placed upon the subject, I note that Mr Dalgarno has compared the qualities and characteristics of each sale in respect of the subject. I note also that Sales 2 and 3 are both subject to flooding.
In respect of his comparing with sales of vacant lands, I note that Mr Dalgarno has followed the well-established principle followed by many courts in determining unimproved values. In this regard I note the decision of the Land Appeal Court in PH Clough v. The Valuer-General (1981-82) (LAC) 8 QLCR 70, which said at page 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. "
In understanding the meaning of "unimproved value" within the context of the Valuation of Land Act, I turn to the Act in s.3:
"3.(1) For the purposes of this Act -
"unimproved value" of land means -
(a)in relation to unimproved 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; and
(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. "
In comparing the unimproved value of the subject with sales of vacant lands, Mr Dalgarno has sought to treat the subject as if all improvements on the land did not exist.
In the matter of the impact of the Strategic Planning Scheme of the Albert Shire Council 1995, I note that, while the subject is shown as "Open Space Area", and is therefore consistent with its current use as a residential homesite, the subject is almost surrounded by "Frame Industrial Land" or "Extractive Industry" in the Planning Scheme. By comparison all three sales are well to the north of the Interim Industrial Structure Plan and are generally in a rural locality. While the three sales all have a gentle north-ward sloping aspect, none have direct views of the Logan River.
In seeking to understand the impact of the Stapylton/Yatala Industrial Interim Structure Plan, I turn to the Albert Shire Plan Scheme at section 1.5.3.2, which says among others:"Land designated in an industry area on Strategic Plan Map 7 is intended to be developed for industrial or business purposes and is not intended to be developed for any other purposes that would compromise the intent of the Strategic Plan. Council will assess all applications for Town Planning consent, Rezoning and Subdivision on this basis and will refuse those applications which are contrary to this intent."
It is the intention of the Council to further introduce a Development Control Plan which will address the more detailed issues within the Strategic Plan Map 7. In explaining the intentions of the Land Use Category for "Frame Industrial Area" I note in section 1.5.3.3(2):
"Frame Industrial Area - These areas as intended to provide opportunities for the development of a range of uses including light industries, distribution warehouses, corporate parks, retail warehouses. In the Burnside Road area and the Yatala township, some commercial, shopping, residential and/or recreation uses may be appropriate. The distribution of uses in this area will be subject to more detailed planning. "
In the matter of any impacts upon the subject by virtue of its inclusion in the "Open Space" category of the Strategic Plan, I note in s.1.5.3.5:
"In order to implement the protection of areas identified in the "Open Space" category, Council will require that any development proposal sets aside these areas from development, provided that some limited development may be permitted in these areas where the primary purpose of the area is not compromised. Council may provide some development bonus on areas not designated "Open Space" in order to encourage the protection of the "Open Space" areas. "
While the current use of the land as a rural homesite would not appear to be in conflict with the intentions of the "Open Space" category under the Strategic Plan, I note also in s.1.5.3.3(5):
"Open Space Area - This designation recognises areas which are subject to one or more of a number of factors. These factors include high landscape and environmental significance, steep topography and buffering from quarries. Any development permitted in these areas will need to be visually unobtrusive and should be limited to no more than 10% site cover. In general, it is intended that this area will be retained in a largely undeveloped state. "
Those conditions provide a clear intention by Council for the subject to remain predominantly undeveloped.
It is also noted that the requirements of the Council in respect of the "Rural" zoning, as set out in s. 6.2 of the Plan, indicates similar constraints upon any development of the subject. On balance I believe that the use of the subject, while having similar "rights" as the sales, has the further limitations as a rural homesite, of being contiguous, or partly surrounded by other land use categories which would impact the amenity of the subject.
The matter then is whether Mr Dalgarno has provided sufficiently for that further disability in his determination at $115,000. If I consider first the two inferior sales, both of which are subject to flooding, I note that Sale 2 is applied at $83,000 and Sale 3 at $90,000. Clearly the subject would appear to retain reasonable relativity with those two sales. In comparison with Sale 1 which was applied at $138,000, I note that a substantial allowance has been made for the better land of the sale. On balance I see no reason not to accept Mr Dalgarno's determination at $115,000.
Summary:
Under s.33 of the Valuation of Land Act, any and every valuation determined by the Chief Executive, "shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered". In the light of the above evidence I find the appellant has not satisfactorily demonstrated that the Chief Executive has not carried out his responsibilities correctly in respect of the subject.
Conclusion:
After 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 19 on RP 115590 as determined by the Chief Executive, Department of Natural Resources, in the sum of $115,000 is affirmed.
(NG Divett)
Member of the Land Court
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