Bruce J Haigh v. Chief Executive, Department of Natural Resources
[1997] QLC 80
•30 May 1997
LAND COURT
BRISBANE
30 MAY 1997
Re: Appeal against Annual Valuation - Valuation of Land Act 1944 -
Valuation Roll No.: 5377 Local Government: Brisbane City (AV95-512 and AV96-124).
Bruce J Haigh
v.
Chief Executive, Department of Natural Resources
DECISION
Background:
The matters for determination in these cases relate to a property at 68 Silvester Street, Wilston, Brisbane, which is a single residence, and is described as Lots 19 and 20 on RP 19880. The property has an area of 809 m2 and is zoned “Residential BR3” under the City of Brisbane Town Plan of 13 June, 1987 and effective at the dates of valuation of 1 January, 1995 (AV95- 512), and 1 January, 1996 (AV96-124). The key issues in this case relate to the impact of the views, relativity with surrounding parcels, and the relevance of comparable sales. By agreement with the parties both matters were dealt with concurrently.
The property fronts Silvester Street which is a full width bitumen road with concrete kerbing and channelling. Access to the subject is good, and electricity, gas, water, sewerage and telephone are all available. The subject is an elevated lot, situated at the top of a ridge running from north-east to south-west. The land slopes away from the subject towards the north-west, west, south and south-east. Silvester Street has a cutting through the ridge fronting the subject and also fronting 72 Silvester Street (Lots 21-23) to the north. There is a rock retaining wall about 1.5 metres high in front of the north-east corner of the subject. The land is level from the subject towards 72 Silvester Street (Lots 21-23) to the north.
The subject has as easy fall of about 1.5 metres in 20 metres from the front boundary towards the west, then a steeper fall of about a further 3.5 metres in the remaining 20 metres towards the rear, giving a total fall of approximately 5 metres over the 40 metres depth of the lot. The existing surface has been filled in the past with the placement of about 2.5 to 3 metres of fill behind a retaining wall at the rear of the subject. It was speculated in evidence that the fill may have come from the cutting earthworks in Silvester Street.
There are views to the south-east of Mount Gravatt, the Story Bridge and the City, and also towards the south-west and west, where there are views of Red Hill, Mount Coot-tha and Wilston Hill. Parts of those views are obstructed by the building on the adjoining 64 Silvester Street (Lots 17 and 18) to the south.
The Chief Executive, Department of Natural Resources, on 20 March, 1995 issued a valuation for the property at $171,000 as at 1 January, 1995. Following objections the Chief Executive disallowed that objection and confirmed the valuation at $171,000 on 12 September, 1995. The Chief Executive also issued a valuation on 26 February, 1996 as at 1 January, 1996 to $171,000. Following an objection the Chief Executive again disallowed the objection and on 21 May, 1996 confirmed the valuation at $171,000. The appellant has appealed both valuations for 1 January, 1995 (AV95-512) and 1 January, 1996 (AV96-124), claiming that in both cases the valuation should more properly be $150,000.
Mr Haigh appeared for himself, and Mr A Grams, Senior Valuer, appeared for the respondent, calling evidence from Mr I G Savage, a registered Departmental Valuer who determined the valuations.
| Following discussions on the nature of the subject, the description of the land as | Evidence: Fifth Avenue, which have similar views of the City to the subject, and that because of the location of existing brick flats to the south of those parcels, it is unlikely that they would ever have their views restricted. In respect of the subject, he claims he does not have that comfort as any redevelopment on the adjoining Lots 17 and 18 would impede the views from the subject. |
| Mr Haigh was unable to specifically identify these parcels in Fifth Avenue for the Court. |
To support his case Mr Savage drew reference to the following sales:
I. Sale 1 - (82 Main Avenue, Windsor - Lots 128 and 129 on RP 19877). This is a very well elevated site about 95 metres north of the subject with a moderate to steep fall from rear to front (ie north to south), falling about 8 metres in 40 metres. It has an area of 809 m2, and is zoned “Residential A”. The sale backs onto Eildon Hill reservoir reserve, and has panoramic views from the south-east to the south-west, with slightly restricted views to the west and north- west. The views to the south include the Central Business District (CBD) and Red Hill. It has the same area as the subject, and is also used as a single unit residence. The views from the sale are seen as superior to the subject. The sale sold in February 1993 for $340,000, which after allowing for clearing of $2,000, provided an analysed unimproved value of $338,000 and an applied value of $280,000. The sale previously sold in May 1992 for $267,500.
II.Sale 2 - (97A Fifth Avenue, Windsor - Lot 235 on RP 18914). This is a medium elevated lot about 56 metres north-east of the subject with a moderate to steep fall from the road to the rear (ie north to south), falling about 7 metres in 20 metres. It has an area of 405 m2 and is zoned as “Residential A”. The sale has views of Mount Gravatt, Story Bridge, and from the City through to Mount Coot-tha. Subject to the growth of trees on adjoining properties, the views are superior to the subject. However, the sale is steeper than the subject, and smaller in area. The sale sold in July 1996 for $145,000, which after allowing for clearing ($1,000) and fencing ($1,000) provided an analysed unimproved value of $143,000, and an applied value of $140,000. However this sale occurred after the relevant time period for either valuation, and is provided only as a guide to subsequent movements in the area.
III. Sale 3 - (Sixth Avenue, Windsor - Lot 2 on RP 101622). This is a medium elevated lot about 110 metres east of the subject with an easy slope from the road to the rear (ie north to south), falling about 2 metres in 36 metres. It has an area of 559 m2 and is zoned as “Special Uses”. The south-west corner has a steep drop (almost a cliff) onto adjoining Lot 29 on RP 47500. Views are restricted because of buildings and trees on surrounding lots, but has views of part of the western side of the City across to Mount Coot-tha. The sale adjoins the old “Boothville” Private Hospital which is in the process of being sold and redeveloped.
The sale is smaller than the subject, but has a gentler slope, although the views and the locality is not as good as the subject. The sale sold on 24 February, 1996 for $150,000, which after allowing for fencing ($2,000) and clearing ($1,500) provided an analysed unimproved value of $146,500, and an applied unimproved value of $135,000. However the sale occurred after the relevant time period for the 1 January, 1995 valuation, and is provided only as a guide in respect of subsequent movements for that valuation.
While Mr Haigh did not have any in-depth knowledge of the sales, he was familiar with the area and the impact of views. Mr Savage claimed that Sale 1 in effect showed the trend in the area for properties with views. He conceded that Sale 1 was vastly superior to the subject, but noted that the sale in fact occurred to a local resident from Stafford who was well aware of the local property market. The former owner had intended to build upon the sale, after disposing of the old dwelling for $1,000 following the May 1992 sale. He had subsequently purchased a home at Hamilton. The sale at $340,000 was negotiated after a public auction which did not meet the reserve price. Mr Savage concluded that the sale fairly represented the market for land at the “top end” for the area.
Mr Haigh disputed that Sale 2 is only of medium elevation as he felt it is near the top of the ridge. He believes the views from Sale 2 are less likely to be obstructed than those from the subject. In respect of Sale 2, Mr Savage agreed that it did not fall within the relevant time period for the valuations, but he maintained that it’s subsequently assessed unimproved valuation confirmed that the value of the subject was correct. He noted that the slope of Sale 2 is across the whole lot and not just at the rear as for the subject. Mr Savage noted that for an additional $30,000 the subject valuation provided twice the area for development purposes.
In respect of Sale 3 it was noted that the sale occurred outside the relevant time period for the 1 January, 1995 valuation, but occurred prior to the issuing of the 1 January, 1996 valuation. In respect of the overall assessment of market trends in that area, Mr Haigh believed that insufficient understanding was evident in the valuations provided. However Mr Savage denied that, saying that he was fully aware of trends, noting in particular the variations between the improved property market and the unimproved property market, which tended to differ in characteristics. He noted that while the improved house market had tended to decline over recent years, the vacant land sales had shown the opposite trend.
In the matter of views from the subject, Mr Haigh provided photographic evidence which showed the extent of intrusion into views from the subject, by the dwelling on adjacent 64 Silvester Street (Lots 17 and 18) to the south. He also claimed that, because the subject was on the top of the ridge, views from the subject were more likely to be obstructed than from the adjoining 64 Silvester Street, which was on the steeper slopes as was 60 Silvester Street to its south. Mr Haigh argued that in respect of views the better land was not on the top of the slope, but on the steeper slopes leading to the top of the slope. The land in these latter cases were less likely to have their views impacted by other buildings.
In the matter of relativity between the subject and surrounding parcels, Mr Haigh argued that in terms of building costs, particularly for “Old Queenslander Style Homes”, there is little difference between building on a flat or sloping land. He argues the small cost for stumps at varying heights would only be a minor cost. From his experience in the geological exploration area, he believes the removal of the underlying rock, which is a bunya phyllite, would not be expensive. For these reasons he argues that the most important feature of the lots is their capacity for views, particularly of the City centre.
Mr Haigh conceded that he has little experience in building a house. However, he argued that because 60 Silvester Street is further down the slope, it’s views to the south are more restricted, and therefore the relativity between 60 and 64 Silvester Street is about correct. In seeking relativity between the subject and 72 Silvester Street he believes, because the latter has good views towards Mount Coot-tha, there should be little difference between 72 Silvester Street and the subject, with 72 Silvester Street perhaps being a little higher.
Mr Haigh also expressed surprise that the unimproved values of 60, 72 and 73 Silvester Street are all exactly the same at $155,250. This coincidence he finds makes him uneasy in respect of the method of determination of the values. In comparing the two parcels on the opposite side of Silvester Street, Mr Haigh noted that 71 Silvester Street is the more southerly at the corner of Silvester Street and Sixth Avenue. The land in its original state falls from north to south, and there is currently a 3 metre retaining wall on its southern boundary. There is about 7 metres in height between the estimated levels of the northern boundary of 73 Silvester Street and the southern boundary of 71 Silvester Street. Views from 73 Silvester Street are obstructed by the height of the dwelling on 71 Silvester Street, who’s views in turn are partly obstructed towards the City, and subject to the growth of trees on the southern side of Sixth Avenue.
Views from 71 Silvester Street towards the west are restricted by the subject, although 71 Silvester Street is about 1 metre higher than the subject. The area of 73 Silvester Street at 562 m2 is smaller than the subject, as is 71 Silvester Street at 647 m2. Access to 73 Silvester Street is good as the lot is located at the top of the ridge.
Mr Haigh drew attention to the provisions of the Town Plan (s.19.7) which requires minimum distances of 6 metres for new dwellings from the front boundaries, and stipulates in s.7.2.1 that the maximum height of any building in that zoning is 8.5 metres measured at the mid-point of the lot frontage. Because of the slope of Silvester Street, this he claims would severely impact views from the subject should any new developments be proposed, or if the existing house was burnt down or accidentally destroyed.
In respect of the topographic map supplied by Mr Savage (Exhibit 7), Mr Haigh drew attention to the existence of the filling on the subject, which appeared as an abnormal contour line over the subject. Mr Savage noted that, while he was not aware of the filling on the subject, his conservative estimate of fall from front to rear of the subject would have allowed for any impact of the fill. He maintained the existence of the fill would not impact his determination of the unimproved value. In any case he pointed out that as the fill was most likely from the cutting on Silvester Street, under s.6(2) of the Valuation of Land Act, where any such improvements are made by The Crown, they are not allowable under the Act.
Mr Savage also argued that a prudent owner erecting a new home on the subject would not excavate down 1.5 metres as has currently occurred, and would build another 1.5 metres higher, thus maximising the views over the adjoining 64 Silvester Street.
Mr Haigh drew support for his case also in the large increases of the valuations of the subject that have occurred over the following years:
1992 $ 85,000
1993 $ 94,000
1994 $200,000
1995 $171,000
1996 $171,000
These valuations show percentage changes which he claims indicate that the current system for determining the valuations is not representative of the true values, where the prices of house in the area have merely slowly and steadily risen, not in major leaps as occurred in 1994. He believes the decline in value since 1994 has been some attempt to rectify the mistakes in 1994, he contends the correct valuation should be $150,000.
Decision:
In examining the sale’s evidence by the parties I am drawn more to the details of those
of Mr Savage, than to the generalisations of Mr Haigh. While I accept that Mr Haigh has a
good personal knowledge of the area from his residence there, he was however unable to clearly
identify specific details of recent sales upon which he supported his case. His knowledge of Mr
Savage’s Sale 1 was reasonably accurate, although in seeking to cast doubts on the relevance of
Sale 1 to the subject, he was not aware of certain facts associated with the sale. For instance he
was not aware that the purchaser of Sale 1 was a local resident with clearly a good knowledge
of the market in the area.
While Mr Haigh can claim there was no relevance in respect of Sale 1, Mr Savage did
not draw direct equality with the sale but saw it as setting the top level of interest for properties
with good views in the area. There is a considerable difference between the applied valuation
for Sale 1 ($280,000) and the subject ($171,000), bearing in mind that both properties have
similar areas (809 m2).
In respect of Sale 2 I note that it was not used by Mr Savage in his determination, but
merely as a check against the final relativity subsequent to the two valuations. On this basis I
place little weight on its application.
In the matter of Sale 3 I also note that the date of the sale at 24 February, 1996 is prior
to the date of issue of the 1 January, 1996 valuation on 26 February, 1996. In this regard I note
the decision in KP and RD Weisenberger v. The Valuer-General (1978) 5 QLCR 125, at p.127:
“I agree with the submission of Mr Butler, Counsel for the Valuer-General, that my
jurisdiction in so far as circumstances relating to the subject valuation are concerned does not
extend in point of time to uses beyond 28th October 1976 the date of issue of the valuation.”
In the matter of the making of a valuation the Chief Executive shall fix amongst other things, under s.18(4) a date “prior to the date of issue, pursuant to s.50, of the notices of valuation in respect of the general valuation concerned”. Under s.50(2) of the Act the “notice of valuation may be issued at any time after the making thereof”. For the purpose of the valuation as at 1 January, 1996, I consider Sale 3 to be a bona fide sale for comparison purposes under the Act. As the unimproved value for the two valuations is identical ($171,000) the implications for the 1 January, 1995 may be assumed to have some consistency with the succeeding year. Sale 3 is agreed as inferior to the subject and at $135,000 sets a lower limit for comparison purposes.
In seeking now to compare the relativity between the subject and Sales 1 and 3 I look to a comparison of the features of the respective properties. There would appear to be four distinctive features for comparison:
| IV.Nature of the land and topography note that the frontage of both parcels is about comparable in elevation, but the subject has less slope over the actual building area than does 72 Silvester Street. If the extent of views from the subject towards the City as well as the views to the west are also considered, I believe that the subject has a higher unimproved value than 72 Silvester Street. If I then look across Silvester Street to numbers 71 and 72, I note the restrictions to their views to the west, and their smaller areas, and conclude that the subject is also superior to those parcels. | In respect of the nature of the parcels I note that all three lots have a southerly aspect, and all have a similar topography, falling from north to south, although Sale 3 is less steep than either Sale 1 or the subject. All are located in close proximity, and have good access to facilities. Sale 1 is at a higher elevation than the other lots. In respect of the nature of the parcels there is little difference between the three lots except that the subject has a flatter building area for construction of a dwelling. |
| In the matter of the provisions of the Town Plan I note the intent of the Plan in s.7.2.1, and also the flexibility afforded for a new detached house or for extensions or modifications under s.7.2.3.1, where development may be permitted subject to s.7.2.3.2, which would involve considerations of the expectations of adjoining neighbours, particularly in respect of the obstruction of views. I believe s.7.2.3.2 could provide scope for a prudent redeveloper of the subject to exceed the height of 8.5 metres in order to ensure that views from the subject towards the City were not impeded by any redevelopment on 64 Silvester Street. For these reasons I find the relativity between the subject and the adjoining parcels is not inconsistent. | |
| In the matter of the additional fill placed upon the subject, I accept Mr Savage’s evidence that his conservative estimate of the fall across the subject has not overemphasised the advantages of the subject as a building site. Evidence was led by Mr Haigh that the fill on the subject possibly came from the improvements to Silvester Street. While there is no direct evidence to that effect, it would be a reasonable conclusion that the fill did in fact come from that source. I note also in s.6(2) of the Valuation of Land Act that improvements exclude: | |
| “In the determination of the unimproved value of land the term does not include invisible improvements, other than timber treatment, where such invisible improvements have been made by the Crown, whether in right of a State or in right of the Commonwealth, (including a statutory body representing the Crown), a local government or a harbour board.” | |
| Such improvements are only allowable where the local government “has been recouped in respect of the expenditure on such invisible improvements by such purchaser or lessee otherwise than by payment of rent, rates or taxes”. Mr Haigh has led no evidence of any such payment by the former owner of the subject, and I would disregard the impact of the fill for those purposes. | |
| In the matter of the large percentage increases in the valuations over recent years, I seek guidance in NR and PT Tow v. The Valuer-General Redland Shire (1978) (LAC) 5 QLCR 378, where the Land Appeal Court determined at p.381: | |
| “It follows that a large increase over and above the previous valuation is in itself not a relevant “The appellants also relied upon a schedule, exhibit 4 in the Land Appeal Court, which showed | |
| In the current case the sales evidence of Mr Savage has not been discredited, and is preferred over the comparison of percentage increases, which should also be considered in the light of the findings of CH and BD Henricks v. The Valuer-General (1983) 9 QLCR wherein the Full Court of Queensland, Macrossan J said at p.63: | |
| As the Full Court said, there could be many reasons why parcels of land can increase at different percentage rates over a period of time. The real test is not the percentage increases in the unimproved values, but a comparison of the subject with sales of comparable sites in the vicinity of the subject at the time of the valuation. | |
| Summary: Chief Executive “shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered”. Under s.45 of the Act an appeal can be lodged by an owner, and under s.45(4) the grounds of that appeal “shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner”. | |
| In summary I find that the appellant has not satisfactorily demonstrated that the Chief Executive has not carried out his responsibilities correctly in respect of the subject. |
V.Area
VI.Zoning
VII.Views
In the matter of area, both Sale 1 and the subject have 809 m2, while Sale 3 has an area
of 559 m2. In respect of zoning it is noted that Sale 1 is zoned as “Residential A”, while Sale 3
is zoned as “Special Uses”. Under the Brisbane Town Plan (s.7.2) permitted use (as of right)
within a “Residential A” zone is restricted to a detached house or for park purposes. The
construction of apartment or tenement buildings are prohibited. Under s.14 of the Town Plan
the intentions of the zoning for “Special Uses” is defined as land used either for a public
purpose, or by private corporations or bodies mainly owned by religious organisations.
In respect of Sale 3 this was related to the former owners of the former Boothville
Hospital which was the Salvation Army. Under the Town Plan “where land included in a
special use zone is no longer required for the purposes for which it was included in that zone,
and where the corporation divests itself of that land, then generally it is intended the land be
included in another zone to allow for an alternative form of development”. In respect of Sale 3
it would be a reasonable assumption to conclude that rezoning to “Residential A” would be
approved.
It is also noted that while the subject is zoned as “Residential BR3”, and under s.7.3.1 of
the Town Plan may be developed for a duplex or attached house, for the purposes of the
Valuation of Land Act it has been treated under s.17(1) as a single dwelling for the purposes of
the Act. On this basis I then find there is similar contribution to the value by the zoning of all
three parcels.
The most significant difference between the lots is the extent of views they provide. In
this regard it is agreed by the parties that Sale 1 is far superior to the other parcels. Mr Savage
argued that views from Sale 3 are not as good as the subject. However Mr Haigh argued that as
a Sale 3 was on a secondary part of the main hill, it’s views of the City centre are unrestricted
and, except for it’s smaller area, Mr Haigh believes Sale 3 would be comparable to the subject.
On balance, bearing in mind the larger area of the subject, I find Mr Haigh has not proved that
the subject does not have a higher unimproved value than Sale 3 at $135,000, and a value of
$171,000 is reasonable.
I turn now to the relativity between the subject and the parcels adjoining it in Silvester
Street. I note Mr Haigh’s argument that in terms of views the parcels on the slopes near to the
actual top of the ridge have less chance of obstruction than those parcels actually on the ridge
top. However as he conceded the market reveals that people buy land other than for the views it
provides. For these reasons evidence of sales discloses consistently that the parcels on the top
of a ridge are usually the most sought after, and for which the higher prices are paid. On this
basis the subject would have a higher unimproved value than 64 Silvester Street, which Mr
Haigh has agreed in turn has a higher unimproved value than 60 Silvester Street.
After having considered the whole of the evidence my decision is as follows:
Appeal AV95-512 - The appeal is dismissed, and the Chief Executive’s valuation at One
Hundred and Seventy-One Thousand Dollars ($171,000) is
confirmed.
| Appeal AV96-124 - | The appeal is dismissed, and the Chief Executive’s valuation at One |
Hundred and Seventy-One Thousand Dollars ($171,000)
is confirmed.
DR N G DIVETT
MEMBER OF THE LAND COURT
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