Conroy & MacGillivray as Trustee for South End Trust v Chief Executive, Department of Natural Resources

[2001] QLC 15

[2001] QLC 15

 

LAND COURT, BRISBANE

22 March 2001

Re:Appeal against Annual Valuation - Valuation of Land Act 1944 - Property ID: 1214609 -

Local Government: Brisbane City - Toombul (AV00-127).

Martin B Conroy and John MacGillivray as Trustee for South End Trust v.

Chief Executive, Department of Natural Resources

D E C I S I O N

Background:

This matter relates to land at 48 Oates Parade, Northgate, and described as Lots 1 and 2 on RP62416, Parish of Toombul. The subject land has an area of 1014 square metres, and is located about 1 to 2km east of the Northgate Railway Station, and about 3km from local schools and shops. There is easy access from Oates Parade which is bitumen sealed with concrete kerbing and channelling. All normal utility services are available.

The subject land is zoned "Residential A" under the Town Plan of the Brisbane City Council of 13 June 1987, current at the date of valuation of 1 October 1999. The land is valued under s.17(2) of the Act as a single residence, and is located in an established area predominantly with 40-80 year old residential buildings. The key issues are the nature of the land, relativity, impact of flooding and noise, comparison of sales and the sale of the subject land itself.

On 27 March 2000 the Chief Executive issued a valuation of the subject land at $69,000. Following an objection the Chief Executive confirmed that figure on 1 July 2000. The appellant has now appealed claiming the unimproved value should more properly be $63,000.

David Desmond Hart appeared and gave evidence for the appellants. Mr R Paterson, Principal Legal Officer, appeared for the respondent, calling evidence from Benjamin Michael Kewley, the Departmental registered valuer responsible for determining the valuation.

Preliminary Matter:

At the commencement of the hearing Mr Paterson queried the lack of specificity in the grounds of appeal, arguing that because of that shortfall the Court may not have jurisdiction to hear the merits of the matter. Mr Paterson drew support from s.56 (2) of the Act in respect of the need for the grounds to be stated. On examination of the grounds of appeal the appellant relied upon, in his opinion, a lack of specificity in the respondent's response to the objection, arguing that the reasons given by the respondent were ipse dixit.

In respect of the mandatory nature of the Act Mr Paterson drew my attention to the matter of EK and SA Baldwin v. Valuer-General (1978) 5 QLCR 41, where the learned Member (later President) examined closely the findings of the Land Appeal Court in Schirmer v. Valuer-General (1974) 1 QLCR 144, and also the High Court in Molloy v. Federal Commissioner of Land Tax (1937-38) 59 CLR 608, concluding that the notice of appeal in Baldwin was defective in a material particular, similar to the current matter.

The learned Member then exercised the power of the Act under sub-s.21(3C) as it then was (now s.59), and allowed the appellant to remedy the defect. It was also noted that the registrar of the Court had not noticed any defect in the original appeal, and had therefore not requisitioned the appellant to that end.

Mr Paterson also draws attention to the findings of this Court in Adrian P and Annette S Moore v. Valuer-General (1990-91) 13 QLCR 151, where the learned Member (later President) considered the grounds of an appeal where the appellant merely expressed dissatisfaction with the decision on objection. However I believe that can be distinguished in as much as in that matter the registrar had issued a requisition to rectify the notice of appeal, and the requisition had not been complied with. That was also found in CM Conroy v. The Valuer-General (1986-87) 11 QLCR 25.

It was also noted in the current matter that any possible shortfall in the stated grounds had not been requisitioned by the registrar of this Court as required under s.58(1), thus leading to action then open to the Court to adjourn for the appellant to redress that shortfall under s.59(1). In accordance with those directions, a short adjournment was directed, subsequent to which both parties advised that the grounds of appeal had then been clarified to the satisfaction of either party. The Court then exercised its powers under s.59(2) and the hearing proceeded.

In exercising its discretion the Court noted that there had been a "without prejudice" objection conference between the parties, and that both were aware of the differences between them. Because of the short nature of the adjournment, I see no reason why there should be any costs awarded as a consequence of the adjournment.

The Evidence:

(1)The Nature of the Land -

It is Mr Hart's argument that the subject land is at the lowest topography in that portion of Oates Parade, and as such is subject to local flooding for protracted periods following heavy rains. Mr Hart advises that the subject land has a major drainage problem, and surface water from surrounding parcels tends to pond there for up to six weeks.

Mr Kewley agrees that the subject land is low, but argues so also are the surrounding parcels both to the east and to the west. Mr Kewley notes that the adjoining land to the east (Lot 3 on RP62416) has in fact a stormwater main passing through that parcel. That stormwater collects run-off waters from higher lands to the south of Oates Parade, as well as water from channelling along Oates Parade and also from Coulter Crescent to the rear. The discharge gully traps in the channelling indicate that the stormwater pipe across Lot 3 is near the lowest level of that terrain.

Mr Hart provides plans of spot heights determined for sewerage reticulation purposes. Those levels confirm the very flat nature of the land from east to west at the subject land, and a gradual fall of about 0.4 metres from south to north. The lowest parcel to the rear of the subject land is either 24 Coulter Crescent or 26 Coulter Crescent, which is immediately to the rear of the subject land. Mr Kewley does not disagree that the subject land has drainage problems, and argues that he has provided a reduction in the value of $15,000 partly to allow for that disability.

To support his valuation Mr Kewley provides contour maps of the topography of the area, showing that generally speaking the land to the south to Toombul Road falls from a height of 5 metres for about 1 metre in 260 metres to approximately the rear boundary of the subject land. The slope then falls a further 1 metre in 30 metres to Coulter Crescent. The contours confirm that the subject land is at least one of the lower parcels in Oates Parade, although 26 Coulter Crescent is about 0.5 metres lower in elevation. It is noted that the general locality was relevelled by airport construction during World War II, with major regrading of higher areas.  It is also noted that the

subject land and the two sales in Oates Parade, later described, are all above the Flood Regulation Line and therefore not subject to building prohibition.

There was some argument about the level of detailed inspection of the subject land by Mr Kewley. However the method applied, and subsequent checks by Mr Kewley in preparation from this hearing, have not dissuaded Mr Kewley from his original appreciation of the nature of the subject land.

1. Traffic Noise -

Mr Hart argues that noise and pollution from passing traffic is an increasing disability. He provides evidence of a traffic count near the intersection of Oates Parade and Nudgee Road, recording up to 9,845 vehicles during daylight hours. Mr Kewley agrees that traffic movements have increased over the last 3 or 4 years, and he has allowed for that in his valuation.

Mr Kewley argues that noise impacts at his two sales in Oates Parade would be at least comparable to the subject land, and therefore covered in his comparison allowances of those two sales. Mr Hart argues that although the subject land is further removed from Nudgee Road, it also is impacted by vehicle noise from Toombul Road to the west of the subject land. Traffic counts of the order of 27,000 vehicles per day in Toombul Road and 22,702 vehicles per day in Nudgee Road were noted. Mr Hart argues that there would be little difference between noise impacts at Sales 1 and 2 or the subject land.

Mr Kewley also agrees that with the build-up of traffic along Oates Parade the noise would have a greater impact upon the subject land compared to 26 or 24 Coulter Crescent. It is also noted that Oates Parade has remained as a sub-arterial road with traffic speed controls at 60kph, unlike the reduced speeds of 50kph in most residential streets.

1. Comparison of Sales -

Mr Kewley provides three sales of Residential A vacant lands to support his valuation:

·          Sale 1 - (88 Oates Parade - Lot 134 on RP34599)

This is a 405 square metre parcel located about 350 metres east of the subject land. The sale has similar location and elevation, is inferior in size and was filled to road level prior to sale. Overall the sale is inferior.

The sale sold in March 1999 for $53,000, was analysed at $47,500 and applied at $42,000.

·          Sale 2 - (90A Oates Parade - Lot 132 on RP34599)

This is similar to Sale 1 in area and location, and was also filled to road level prior to sale. Similar to Sale 1, the sale is overall inferior to the subject land.

The sale sold in March 1999 for $53,000, was analysed at $47,500 and applied at $42,000. Both Sales 1 and 2 were bought by the same purchaser (Cronin).

·          Sale 3 - (20 Gold Street, Banyo - Lots 1 and 2 on RP65077)

This is a 809 square metre parcel located about 2km directly north of the subject land. The sale is opposite the Banyo Bowls Club, which is seen as a busy location with noise of traffic and club activities. The sale is seen in a superior locality because of the traffic noise at the subject land, and is therefore superior overall.

The sale sold in December 1999 for $82,000, which was analysed at $80,000 and applied at $72,000.

Mr Hart rejects Sale 3 which he argues is about 7-8 minutes driving time from the subject area, and not comparable, and with no drainage or comparable traffic impacts. Mr Hart also argues that the three sales are all heavily improved and therefore do not meet the criteria of being vacant lands (Transcript 13). However he concedes that Sales 1 and 2 are in the immediate location. Mr Hart also concedes that Sales 1 and 2 are slightly lower in topography than the subject land, but he argues that the subject land is more severely impacted by local flooding, and is more low-lying in nature.

Mr Hart agrees that Sale 3 would be impacted by noise from the Bowls Club, but argues that does not equate to the noise from the busy traffic flows along Oates Parade. Mr Hart also notes that Sale 3 is in a better locality and is only a block from the golf course, and for those reasons he rejects only $3,000 difference between the applied value of Sale 3 ($72,000) and the subject land ($69,000).

There was a major difference between Mr Hart and Mr Kewley in respect of the possible improvements of fill to Sales 1 and 2. Mr Hart argues that both of those sales were previously part of four tennis court sites. It is his advice from the builder of subsequent homes on both parcels, that any filling was likely to have occurred as a result of cut and fill earthworks. He notes that even if there had been some small importing of fill, that would not, in his opinion, be to the extent of $3,000 (Transcript 48).  Mr Hart advises that both lots were nearly rock at the surface.

Mr Kewley assessed his level of filling on his Sales 1 and 2 mainly from the contour mapping, and his personal observations of the two sites from the adjoining parcel to the rear (Lot 10 on RP 892889). Mr Kewley notes that Lot 10 has subsequently been filled, but is now about 1 metre below the level sites of Sales 1 and 2). Adopting a height difference of 1 metre at the rear, and street level at the front of Sales 1 and 2, Mr Kewley estimates that 0.5 metres average depth for 405 square metres would require 200 cubic metres of fill which he estimates at $15 per cubic metre, or $3,000. Mr Hart concedes that if Mr Kewley had  over-estimated  the quantity of filling needed, then the analysed value of each of Sales 1 and 2 would be

$50,500, instead of $47,500, with a corresponding increase in the applied unimproved values to about $48,000 each.

Mr Kewley sees his Sales 1 and 2 as providing a good basis for the valuation, as those sales demonstrated what a prudent purchaser may pay for land approximately

2.5 times smaller than the subject land. Mr Kewley then uses his Sale 3 to monitor what a prudent purchaser would pay for a smaller parcel in a superior locality, concluding a difference of $3,000 would reflect the superior nature of Sale 3. Mr Kewley believes that generally Northgate is a superior address to Banyo, but has allowed for the traffic impacts at Oates Parade in referring to Sale 3 as a superior locality.

In explaining the difference between his analysed and applied rates, Mr Kewley advises that it is Departmental practice to seek to provide conservative estimates allowing any benefit of doubt to the owner (Commissioner of Succession Duties v. Executor Trustee and Agency Company of South Australia (1946-47) 74 CLR 358, at 373 per Dixon J.

Mr Hart queries the reliability of the sales evidence supplied by Mr Kewley, arguing that there had been no opportunity to check the sales information either from the property transfer advice (Form 24), or any contract of sale. Mr Kewley advises that the information is readily available from the Departmental Queensland Valuation System Database (QVAS). Mr Hart queries that there is no information on QVAS to determine what was in the mind of the vendor and purchaser as required under the Spencer test.

1. The Sale of the Subject Land -

In support of his estimate of the unimproved value, Mr Hart argues that the sale of the subject land on 13 September 1999 for $147,000 supports his figure. That was an improved sale where the vendors had provided their estimate of $63,000 as an apportionment of the land value on the Form 24. Mr Hart argues that the vendor adopted the then unimproved values supplied by the Chief Executive at $63,000. Mr Hart argues that was not just a personal estimate by the vendor, but represented the official unimproved value of the land component.

Mr Kewley does not reject the use of the sale of the subject land out of hand, but argues great care needs to be exercised in determining the added value of the improvements associated with that sale of the improved dwelling. As a general policy he rejects the relevance of apportionments where other evidence is available. Mr Kewley notes that s.5(1) of the Act directs that it is the added value of the improvements which must be determined independently before applying those to the improved sale price in order to assess the land value. Mr Kewley argues that he would only seek to analyse an improved sale where there was no other sale of vacant lands available.

1. Relativity -

In the matter of relativity Mr Kewley provides evidence of applied values of surrounding parcels (Exhibit 4). The land to the west of the subject land (Lots 198 and 199 - 1002m²) is valued at $69,000.   Lot 3 (496m²) to the east is valued at

$44,500, as is also the next adjoining Lot 4 (488m²).  Lot 13 (26 Coulter Crescent - 1131m²) to the rear is valued at $64,000; while Lots 183 and 184 (24 Coulter Crescent

- 1118m²) is valued at $58,000.

Mr Kewley concedes that Lot 3 would appear to be incorrect compared to Lot 4 as Lot 3 has the stormwater pipe across its depth, as also do Lots 183 and 184. However Mr Kewley is of the view that 24 and 26 Coulter Crescent are currently valued too low.

Mr Hart argues that 24 Coulter Crescent is similar in size to the subject land, but does not suffer from the same intrusion of traffic noise. Mr Hart also advises that 24 Coulter Crescent was reduced some years ago by the respondent following an objection by that owner. He argues that 24 Coulter Crescent and the subject land really form part of the same water flows in that area. Mr Kewley advises that relativities with adjoining parcels were not changed in the current valuation, and that

the reason for the current increase in the value of the subject land from $63,000 (1 October 1998) to $69,000 (1 October 1999), was an overall increase in the market in that sub-market area.

Decision:

(i)The Nature of the Land -

I turn first to the topographical features of the subject land and note that the general terrain in that immediate area is relatively flat. I see little difference between the parties' understanding that the subject land has drainage problems, and Mr Kewley has provided an allowance of $15,000 partly for that disability. I do not agree entirely with Mr Hart that the subject land is the lowest point, and therefore the most affected by surface waters, mainly because the stormwater pipe has been located along the adjoining Lot 3 to the east.

In respect of the impact of traffic noise I can accept that the subject land is about equally impacted as Mr Kewley's Sales 1 and 2. On the evidence it is clear that, while he has no quantifiable measurements of traffic growth, Mr Kewley was aware that Oates Parade carried an increasing number of vehicles, and he has allowed for that in his valuation.

(ii)       Comparison of Sales -

The use of sales of vacant or lightly improved parcels has long been accepted by the courts as the preferred method of determining unimproved value. In that respect I am directed by Mr Paterson to the decision of the Land Appeal Court in PH Clough v. Valuer-General (1981-82) 8 QLCR 70, at p.76; and more recently Hans and Else Grahn v. Valuer-General (1992-93) 14 QLCR 327, at p.328. That was also followed in WM and TJ Fischer v. Valuer-General (1989) 19 QLCR 44, at p.46.

Mr Hart does not disagree with that principle, but argues that the sales provided are not vacant sales, and are not comparable to the subject land, in accordance with that guidance. However the evidence does not support Mr Hart's conclusion, and I accept the three sales as providing evidence of value of lightly- improved parcels which have some level of comparability to the subject land.

The test of that comparability of course depends upon the skill of the person making the comparison. In that respect I note that the well-credentialed text Land Valuation and Compensation in Australia by Rost & Collins (3rd Edition) 1984 said at p.22:

"A registered or licensed valuer is regarded as a person who possesses special training. He is entitled to express opinions as to value or other matters appertaining to his vocation, but these cannot be more valid than the information and reasoning upon which they are founded. In general, opinion evidence is not admissible unless it is given by a witness called as an expert. Court judgments have emphasised that the weight of an expert's opinion concerning the value of land depends upon the foundation upon which it rests. "

That was also reported by the Land Appeal Court in Santos Limited v. Valuer- General (1988-89) 12 QLCR 231, at p.235.

If I look then to the comparisons with the sales, I find that Sales 1 and 2 both have an area of 405 square metres compared to the 1,014 square metres of the subject land. Mr Hart agrees that a purchaser would pay more, but not proportionately more for a larger parcel compared to a smaller parcel. Mr Kewley's applied rates for Sales 1 and 2 ($42,000). I am then left with a comparison of $69,000 for an area of 1014 square metres compared to $42,000 for a parcel less than half its size. If I were to accept that Mr Kewley has over-estimated the volume of filling on Sales 1 and 2, then the comparison with an applied rate of $48,000 would further support Mr Kewley's assessment for the subject land.

In making that comparison I accept that Sales 1 and 2 are less impacted by flooding as demonstrated by the contours. I also accept that traffic noise is similar along Oates Parade. If I then use the comparison with Sale 3 as a guide, I see no inconsistency in Mr Kewley's application of $69,000 for the subject land. I note that if the subject land had not been impacted by flooding and the traffic noises, the unimproved value was likely to have been something less than $84,000.

In respect of the reliability of the Departmental record on its QVAS system, I am directed by Mr Paterson to PH Clough v. Valuer-General (supra), where the Land Appeal Court said at page 72:

"However, as a matter of practice the Land Court receives particulars of sales from both parties by way of sworn testimony from the witnesses adducing the sales material. If either party doubts the accuracy of any such material it is open to immediate challenge. The sales data may then be proved pursuant to section 46(1) of the Valuation of Land Act by the production of relevant forms VG1 certified by the Valuer-General or by some other relevant certified documentation. If strict proof of sales were required in all cases, it would unnecessarily clutter the record and extend the time of preparation and of hearings. The practice has worked satisfactorily in a large number of cases over many years and we see no valid reason for altering it. As we appreciate Mr Clough's attitude it is

not that he doubts the accuracy of the sales material tendered in the subject case but that he wishes to raise every point that may be detrimental and/or embarrassing to the respondent."

I believe there is nothing in the evidence in the current matter which would distinguished it from Clough.

1. The Sale of the Subject Land -

I note that support for the use of the sale of the subject land was accepted in Chief Executive, Department of Lands v. J and L Lorenzen (AV93-22), 1 June 1994, unreported, where the Land Appeal Court said at page 4:

"While we agree that a sale of the subject land should always be considered in assessing its value we hasten to stress that such a sale is only prima facie evidence of its value. The weight which will be given to the sale is dependant upon a number of factors, the most important of which is whether the sale is in reasonable conformity with the market as demonstrated by other sales of comparable land."

I note that the sale of the subject was also considered by the High Court in Jowett v. Federal Commissioner of Land Tax (1926-27) 38 CLR 325, where Rich J said at p.329:

"A sale of the subject land, or of comparable land, affords the best means of arriving at the fee simple value of any land, ---"

However in dealing with that matter Rich J was considering the approach taken by the Department in arriving at the unimproved value of several large Crown leases in Queensland. The methods adopted by the Departmental witnesses were criticised by the High Court which said at p.327:

"The witnesses who gave evidence in this case on behalf of the Department had little or no practical experience in the pastoral industry, and were hampered by departmental rules, which they applied in a rigid and automatic fashion to the valuations in question, without exercising any individual judgment in the matter."

In the current matter there is no evidence to suggest that Mr Kewley has applied an arbitrary approach to the valuation, or has failed to exercise any individual judgment.

I note also the findings of Inez Investments Pty Ltd v. JL Dodd (1979) 26 The Valuer No 6 (and also Land Valuation and Compensation in Australia, 3rd Edition (supra) (page 87). In that matter Carmichael J said at p.505:

"--- Where a valuation of a piece of real estate is sought at a particular date the most relevant information for analysis is the sale of that very property, if there be one, at or close to that date. ---- A prime matter for investigation when a valuation is sought is to ascertain whether there is a contract for sale of the property and, if so, to make an analysis of that sale to see how it compares with the test of value as laid down in Spencer's case. Failure to carry out those functions is to risk ignoring the best evidence of value."

In adopting the sale of the subject land, Mr Hart is confronted with the problem of determining the value of improvements, which should be deducted from the total sale price in order to arrive at the unimproved value of the land. That task involves determining the added value which the improvements bring to the land.

The matter of the relevance of adopting a sale of the subject was also clearly defined by the President of this Court in Determination of Rents and Unimproved Values for Conversion Purposes - Perpetual Lease Selections and Grazing Selections

- Goondiwindi District (1974) 1 QLCR 45, who said at p.48:

…"whilst the sale of a subject property around the relevant date in normal circumstances is cogent evidence of its value, it is always necessary to check the analysed value against the standard reflected by other sales of comparable properties to ensure that it conforms to the 'norm' of the market. If the sale does not so conform caution must be used in its application and it may even be proper to reject it if it is shown to be a sale out of line with the market 'norm'. This check becomes vital, in my opinion, in times of a varying market be it rising or falling or in times of an erratic market. One cannot assume, ipso facto, that the analysed sale figure equates fair market value for the subject purposes."

The difficulty in determining added value has been well established in many jurisdictions that the value which needs to be determined in this approach to the valuation, often called "the summation method", is really the added value of the improvements, and not the replacement value of the improvements. In this regard I note the findings in O'Brien Nominee Pty Ltd v. Valuer-General (1979) 6 QLCR 280, where the Land Appeal Court found at p.284:

"The basic properties have sold at prices considerably below value of the improvements assessed on the traditional method of replacement cost less accrued depreciation.

In such circumstances it is unrealistic to conclude that land, the commodity basic to the enterprise, has a minus or nominal value. It is logical to assume that in times of adversity and depression, when purchasers pay less for properties as a going concern, that the lesser price  attaches  not  only  to  the  land  component  but  also  to  the

improvements. The question facing valuers in analysing improved sales in these circumstances is what value is fairly to be attributed to the improvements?

It appears to us that the only tenable approach is to abandon the traditional method of replacement cost as at the sale date less depreciation and to adopt an 'added value' concept. "

In seeking to rely upon the apportionments notified in the Form 24 - Notice of Transfer, Mr Hart argues that the land apportionment in fact was the very unimproved value established by the respondent. As such he seeks to distinguish guidance on general apportionments based upon the personal opinion of an appellant. In that matter I note the decision of the Full Court of Queensland in C and BE Henricks v. Valuer-General (1983) 9 QLCR 59, where Macrossan J (later CJ) said at page 62:

"Although the appellants called no evidence from a valuer they did rely upon the prices demonstrated by a number of sales listed in exhibit number 5 tendered in the Land Appeal Court. Insofar as improvements existed or may have existed on the lands involved in these nine sales the appellants relied only upon the parties' own apportionment of the value of improvements as shown upon the official VG1 forms lodged in each case. For good reason, the courts have held that such figures cannot be relied upon to provide an accurate value of improvements when sales of improved lands are being analysed to discover unimproved land value."

In the current matter Mr Hart seeks comfort from s.33 of the Act that states that the applied unimproved value of the subject land was correct under law, unless challenged, which it was not at the date of sale of the subject land.

However, I also note that the applied unimproved value of $63,000 represented the application of that parcel at 1 October 1998, a year prior to the sale. By Mr Kewley's evidence the market had moved upwards during the intervening period between 1 October 1998 and the sale of the subject land in September 1999. In respect of using a late sale well beyond the relevant date of 1 October 1998 for the previous valuation, I note that late sales are not excluded unless there is evidence of a movement in the market subsequent to the relevant date.

The admissibility of a late sale was addressed in Daandine Pastoral Company

v. Commissioner of Land Tax (1943) 7 The Valuer 299.  In that matter Williams J in the High Court of Australia said at p.304:

"Values must be calculated in the light of circumstances which existed on the material date, in this case 30 June, 1939, but subsequent events can be taken into account in order to determine the proper weight to attach to such circumstances.  Subsequent sales are just as admissible

in evidence as prior sales provided that in all the circumstances they are comparable. If between the material date and the date of the subsequent sale, supervening events occur which alter the conditions previously existing, the subsequent sales would not be comparable and would be useless."

Support for the use of subsequent sales is also to be found in McCathie v. Federal Commissioner of Taxation (1944) 69 CLR 1, at p.16; and also in Federal Commissioner of Taxation v. Harris (1980) 30 ALR 10, at 18. However in Harris, Fisher J noted at p.25 that the subsequent event cannot create an expectation which was not in existence at the relevant date.

On the evidence before me I find little support for acceptance of the previous applied value as indicative of the value of the land at the relevant date of 1 October 1999. On that basis, in the absence of proof of the added value of the improvements, I reject the apportionment of $63,000 for the land, and correspondingly, find little assistance from the sale of the subject land as an improved sale.

(iv)       Relativity -

In the matter of relativity I note the possibility that the unimproved value of the adjoining Lot 3 was likely to be reduced compared to its adjoining Lot 4 to the east. However that inconsistency does not, in my opinion, suggest that relativity between the subject land and Lot 3 should be maintained by also reducing the value of the subject land.

In that respect I note the findings of R and MM Barnwell v. Valuer-General

(1990-91) 13 QLCR 13, where the Land Appeal Court said at p.16:

"We are conscious that it is desirable that valuations made for the purposes of the Valuation of Land Act of comparable lands should bear proper relativity, one to the other, if the valuations are soundly based. It is, however, untenable to adopt a value for one parcel on relativity with another which has no sound basis."

p.46:

I note also directions in Fischer (supra) where the Land Appeal Court found at

"It is indeed a fundamental principle of valuation that the best basis for assessment of unimproved value is the use of sales of vacant or lightly improved parcels. Whilst maintenance of correct relativity is also of considerable importance for rating or revenue type valuations, we cannot prefer in the circumstances of this case, the use of the principle of relativity to the exclusion of the sales evidence."

I am aware that an owner should be able to rely upon surrounding relativities, as found by this Court in TF and SA Shepherdson v. The Valuer-General (1992-93) 14 QLCR 83, at p.87. However in the context of the current matter I believe the evidence of sales is the preferred approach.

I am reminded that s.33 of the Act directs that the unimproved value of the subject land is correct unless proved otherwise. I am also aware that s.45(4) directs that the onus is upon the appellant to prove his grounds of appeal. Unless the appellant can demonstrate that the respondent has followed a wrong principle or made a serious error of fact, then the appeal must fail. (Brisbane City Council v. Valuer- General (1977-78) 140 CLR 41, at 56 per Gibbs J. On the evidence before me I find the appellants have not expunged their onus of proof.

Conclusion:

Having considered the whole of the evidence I am not persuaded that the appellants have proved their case. The appeal is dismissed, and the unimproved value of Lots 1 and 2 on RP62416 in the sum of $69,000 is affirmed.

(NG Divett)

Member of the Land Court