Cotterill v Chief Executive, Department of Natural Resources
[1999] QLC 16
•19 March 1999
|
BRISBANE
19 March 1999
Re: Appeal against Annual Valuation –
Valuation of Land Act 1944
Valuation Roll No: 002-11020
Local Government: BCC-Belmont
(AV98-587)
Noel RC and Betty J Cotterill
v.
Chief Executive, Department of Natural Resources
D E C I S I O N
Background:
This matter relates to a property at 93 Warriewood Street, Chandler, and described as Lot 37 on RP 92862, Parish of Tingalpa. The subject land is located about 14 kms south-east of the Brisbane GPO, has an area of 1.957 hectares, and is zoned “Rural Residential” under the Brisbane City Council’s Town Planning Scheme of 13 June 1987, and effective at the date of valuation of 1 October 1997. The subject has a rectangular shape, with a northern aspect, and is gently elevated with an easy fall towards the south for about three-quarters of its length, then rising to the rear boundary. The key issues are the nature of the land, comparison of sales, relativity, and noise from an adjoining property.
On 9 March 1998, the Chief Executive, Department of Natural Resources, issued a valuation of the subject at $165,000. Following an objection the Chief Executive disallowed the objection and confirmed that valuation on 28 July 1998. The appellants have now appealed that figure claiming the unimproved value should more properly be $150,000. A Court-supervised preliminary conference was held with the parties on 16 October 1998. Following the preliminary conference the Chief Executive issued a revised notice of valuation on 21 October 1998 at $157,500, which is the unimproved value now appealed. In spite of further discussions the parties were unable to reach agreement, and the appeal was heard on 10 December 1998.
Mrs BJ Cotterill appeared and gave evidence for the appellants, also calling evidence from Mr J Carter, an acoustic consultant, and Mr MR Iveson, a registered valuer. Mr R Paterson, Principal Legal Officer, appeared for the respondent, calling evidence from Mr RI Wilson, the Departmental Registered Senior Valuer responsible for determining the valuation.
History of the subject –
This property has been the subject of extensive litigation between the parties over matters of succeeding valuations. An appeal against an annual valuation was determined on 1 October 1987 (V87-143), and again on 5 December 1990 (AV90-107). Matters raised in those two appeals are again the subject of further discussion in the current matter.
In the first appeal (V87-143), the Member, later President, reduced the unimproved value from $78,000 to $75,000, maintaining the same level as the adjoining Lot 36 to the east. In the second appeal (AV90-107), the Member again reduced the unimproved value from $125,000 to $120,000, but re-established the relativity prior to V87-143 between the subject and the adjoining lot to the west.
Preliminary application to dismiss –
At the commencement of the hearing the respondent sought leave to make a preliminary application to have the matter dismissed on the grounds that the appeal was frivolous and an abuse of the Court process. The application sought the indulgence of the Court, in that the respondent had not complied with Rules 21 and 22 of the Rules of the Land Court in as much as the respondent had failed to provide the relevant notice of the application to the appellant. In seeking that indulgence Mr Paterson argued that, until the last moment prior to the hearing, the respondent was hopeful of negotiating a settlement with the appellant. As that had proved fruitless, Mr Paterson was then charged with pursuing the application to have the matter dismissed.
I will not repeat the details of that application, which was resisted by the appellants, as that is contained in the transcript of this hearing at pages 1 to 6. However, the major thrust of the respondent's application was that, following the preliminary conference, the respondent had reduced the unimproved value, from $165,000 to $157,500, in an attempt to seek a compromise. Mr Paterson argued that the appellants had not sought to compromise and continued to seek resolution of the matter, which now reflects a difference of only $7,500 (or 5% of the unimproved value). Mr Paterson argues that, as valuation is not an exact science, but requires the application of judgment, such a small variation was not a serious diversion.
In making the application on that basis, Mr Paterson sought support in the decision of Moyses and Morris v. Townsville City Council (1979) 6 QLCR 271, where the Land Appeal Court, in addressing the matter of costs, said at page 274:
“We would think that usually it would be more relevant to enquire whether the conduct of the claimant, including his making of an exorbitant claim, if he has made one, has been such as to force the authority; unreasonably and unnecessarily, into litigation. ”
Mr Paterson also sought support in Bowden v. The Valuer-General (1980-81) 7 QLCR 138, at page 146; Chief Executive, Department of Natural Resources v. Radlett Enterprises Pty Ltd (AV94-206), 11 February 1998, unreported, at page 5; and BG and AK Wilson v. Chief Executive, Department of Natural Resources (1994-95) 15 QLCR 63, at page 70.
In resisting the application Mrs Cotterill argued that if the difference between the parties was seen to be frivolous, then she argues the respondent should be agreeable to meeting her estimate of the value, which she had prepared following detailed expensive professional advice for the appeal. She recounted the long history of differences between the parties over many years, and she notes that she wished for the Court to set the record straight and to resolve the correct valuation of the property. (Transcript page 4). Mrs Cotterill also noted that the former Court decision had amended the previous unimproved values by less than $7,500, and those could not be considered frivolous in any context.
Following consideration of the request, and a short adjournment, I handed down my decision on the application ex tempora. The details of my reasons are enclosed in the transcript at pages 6 to 9, and I will not repeat those conclusions. The major factors influencing my decision to reject the application were the appellants’ demonstrated long history of personal expense in engaging professional advice on the matter, and the fact the valuers on both sides had varying opinions. However, on rejecting the application to dismiss the appeal, and directing that the appeal should proceed, I noted that in respect of any costs that might have occurred, I advised “that at the conclusion of the hearing I will consider any application for costs which might arise as a result of that direction” (Transcript page 9).
Subsequent to the hearing, on 10 February 1999 the appellants lodged an application in respect of their costs incurred which are incidental to their appeal as follows:Professional Fees for
Iveson & Associates Property Valuers $1 500
Hemming & Hart Solicitors $ 385
Palmer Acoustics Pty Ltd $ 683
TOTAL $2 568
Consideration of those costs are addressed later in this decision.
On 18 January 1999 the respondent lodged an appeal to the Land Appeal Court in respect of the decision to reject the application to dismiss the appeal on 10 December 1998, and for the Land Appeal Court to reject the decision of the Land Court, and to set aside the appeal as frivolous and an abuse of process. The parties were advised by the Registrar of the Land Appeal Court that the matter would be set down for hearing by the Land Appeal Court at a date to be advised.
On 29 January 1999 the respondent further wrote to the Registrar advising that, upon further consideration of the matter, the appeal was now withdrawn. In so deciding, the Chief Executive reserved his right to appeal any decision of the Land Court in respect of the determination of the unimproved value, and at that time to raise the matter of the striking out of the Chief Executive’s application.
The Nature of the Land –
There is general agreement that a gully (part of Lota Creek) running across the land from west to east, is subject to periodic flooding, and carries some run-off from drainage from the dog and cat kennels located upon the adjoining parcel (Lot 38) to the west of the subject. Evidence was given that the land adjoining the gully on the western part of the subject land can become smelly and boggy, and is often covered by a thick scum and weeds which spoil the amenity of the subject. It was argued that occasionally there is an over-powering odour of detergents emanating from the kennels. Approximately two-thirds of the subject land is covered by a Vegetation Protection Order. Photographs of the impact of the kennels were provided, and were not challenged by the respondent.
Mrs Cotterill argues that the soils of the subject are clayey in nature, but there was no documented evidence to support her claim that such clays caused additional foundation costs in the construction of the dwelling upon the subject. It was agreed that the area is of rural residential properties which are now being seen as a pleasant leafy environment as part of the Koala Protection Area. While Mr Wilson generally agrees with the nature of the impacts upon the subject, there is some difference in respect of their impacts upon the unimproved values. Warriewood Street is bitumen-sealed with earth drains and gutters, and reticulated water, electricity and telephone services are available.
The Impact of the Kennels –
A key issue in this matter relates to the operations of a major commercial establishment for dogs and cats (Castelan Kennels and Cattery – 72 dog licence) on the adjoining property at 85 Warriewood Street (Lot 38) to the west of the subject. That kennel, and its method of operation, has been a major concern to the appellants since it was established over 20 years ago. The impact of the kennels, including sustained periods of piercing dog barking, and the noise of vehicles parking in the car-parking area upon Lot 38, were a key issue in the former appeals before this Court.
The appellants have also lodged a long outstanding series of complaints with the Brisbane City Council in respect of the operations of the kennels. The Council has so far concluded that the noise levels do not constitute excessive noise, and the impacts of noise remain a major outstanding issue.
As a means of substantiating their concerns the appellants have engaged acoustic experts (Palmer Acoustics Pty Ltd) to prepare a report on the impact of noise upon the subject land. A copy of that report was provided to the Court. That report provided a technical analysis of background ambient noise levels in the area, and measured the intensity of intrusive noises generated by the kennels. A summary of those findings confirmed that some dog barking exceeds the background noise by as much as 26.9 decibels (dbs).
A conclusion of Palmer Acoustics Pty Ltd is that such penetrating and consistent noise intrusions provide a major annoyance to the residents upon the subject. They further conclude that such annoyance can become a psychological impact upon the health of people, precipitating functional interferences such as sleep deprivation and distraction to ordinary life activities. The barking noises even penetrate the appellants’ residence causing an impediment to normal conversation. Mr Wilson does not contest those findings and, from a personal perspective, has great empathy with the appellants’ dilemma. However, as he explains, his role is to interpret the unimproved value of the land, which must be based upon conclusive evidence.
Mr Carter of Palmer Acoustics Pty Ltd explained that the existing noise levels would interfere with recreational pursuits quite severely, particularly in the backyard near the swimming pool upon the subject. He argues that the most complained about noise is the barking of dogs. Measurement of continuous very high pitched dog barking, for periods of 30 minutes at a time, have been recorded from the “Castelan Kennels”. The Council has conducted a survey of residents in the area as part of its investigations, and four other residents complained that the barking annoyed them. However it is noted that the adjoining neighbouring resident to the west of the kennels has not lodged an official complaint.
Mr Carter also advises that under the Environmental Protection Act a new Environmental Protection Noise Policy was introduced in 1997, which provides guidance in respect of whether the noise is excessive or not. While not definitive, it provides a basis for interpreting on a case by case basis. A feature of those guidelines refers to the character of the sound, the frequency of events, and the background ambient noise environment of the area. Mr Carter sees the barking noise from the kennels as out of character with the neighbourhood, and could be referred to, in his opinion, as excessive. He cannot explain why the Council has been slow in requiring changes in the management of the kennels.
However it is noted that, as a result of previous directions from the Council, the kennels have restructured their holding areas and some open runs for the dogs are now located further to the rear of the kennel facilities. However one open dog run is located only 51.5 metres from the residence on the subject land.
There was some discussion that any new dwelling erected upon the subject could be constructed of noise-retarding materials which could reduce the noise intrusion within the dwelling. It was also argued that, as the valuation process is directed to assessing hypothetically the unimproved value of the land, then such a process could be a hypothetical solution to minimising the noise pollution. However in view of the additional costs involved in constructing such a sound-resistant dwelling, any hypothetical purchaser of the subject land was likely to seek some appropriate reduction in the price they would pay for the land. Such an approach seems to add little to negating the resulting impacts of the noise upon the unimproved value of the land.
Relativity –
In establishing the unimproved value of the subject at $157,500, Mr Wilson argues that he made the reduction of $7,500 from the initial $165,000, in order to resolve any doubts about uncertainties in favour of the appellant. Mr Wilson argues that relativity between the subject ($157,500) and Lot 38 ($215,000) provides an equitable relativity with other parcels in Warriewood Street, both east and west of the subject. Mr Wilson has not sought to retain the former relativity between Lots 37 and 38 established by the learned Member in AV90-107, but has sought to determine the unimproved value at the relevant date.
Mr Wilson further notes that the former difference between Lots 37 and 38 represented about 9% in AV90-107, while the current difference between the parcels represents about 27%. Such an increase in the difference, in his opinion, makes a re-assessed allowance for the impact of noise upon the subject. He argues that such changes in relativity reflect changes in the market over a period of time. Mr Wilson advises that unimproved values for Lots 38 to 44 to the west vary between $215,000 and $230,000, as the lots rise gently in elevation and are nearer Bacton Road to the west.
However Mr Wilson notes that the unimproved values are also affected by factors other than merely elevation, as the parcels get smaller as you move westerly along Warriewood Street. Mr Iveson argues that comparisons upon unimproved values is not a fair test of the market value of the subject.
Comparison of Sales –
In support of his valuation Mr Iveson provides the following sales of vacant lands:
· Sale 1 – (123 Warriewood Street – Lot 12 on RP 816777)
This is an easement lot, smaller in area (10,580 square metres), in a quieter area without any impact from the noise of the kennels. The sale is seen as superior, and sold in October 1996 for $150,000.
· Sale 2 – (121 Warriewood Street – Lot 13 on RP 816777)
This has a superior elevation, is private with no noise inputs from the kennel, has an area of 10,900 square metres, and is superior to the subject, and sold in February 1998 for $175,000.
· Sale 3 – (Glen Court – Lot 7 on RP 883815)
This is a low-lying lot of area 10,340 square metres, located about 0.4 kms north-east of the subject. It is smaller, flood affected and with noise impacts from an adjoining main road. The sale is slightly inferior, and sold in November 1997 for $142,500.
· Sale 4 – (30 Glen Court – Lot 4 on RP 883815)
This is about 300 metres from the main road and therefore has a slightly less impact from noise. It has superior elevation, and an area of 10,470 square metres, and is an easement lot. The sale is superior and sold in June 1997 for $185,000).
· Sale 5 – (Glen Court – Lot 6 on RP 883815)
Similar to Sale 4, or area 10,700 square metres, and with superior elevation and more remote from noise from the road. The sale has easement access and is superior, and sold in August 1997 for $167,500.
· Sale 6 – (106 Bacton Road – Lot 36 on RP 818588)
This sale has an area of 10,190 square metres and is located opposite the old Chandler refuse transfer station, which is being converted to parkland. The purchaser acquired the lot with the intention of resale after the park conversion was completed. The sale is superior and sold in May 1997 for $215,000.
In an attempt to identify any impact upon Sale 5 as a consequence of location adjoining any of the existing nine sales in the area, Mr Iveson could find no similar sales in the relevant period. However he provided four old sales as follows:
· Sale 7 – (76 Formosa Road – 10,200 square metres)
This is affected by kennel proximity, and while superior to the subject, sold in July 1992 for $145,000.
· Sale 8 – (932 Boston Road – 11,010 square metres)
This was a vacant parcel unaffected by kennel noise, and was compared with Sale 7, and sold in January 1992 for $165,000.
· Sale 9 – (Lot 4 – Stanborough Road – 10,390 square metres)
This was similarly impacted by kennels, but was inferior to Sale 7, and sold in September 1990 for $161,000.
· Sale 10 – (252 Stanborough Road – 10,400 square metres)
This was unaffected by kennels and is inferior to Sale 7 and sold in September 1990 for $166,000.
To support his valuation Mr Wilson provides the following sales of rural residential vacant land:
· Sale 1 – (106 Bacton Road – Lot 36 on RP 818588)
This is the same as Mr Iveson’s Sale 6, and is located about 0.4 kms west of the subject. The sale is hatchet shaped, and is elevated at the rear with an easy fall to the west. The sale is smaller, but is superior due to shape, elevation and there is no impact from the kennels, although at the date of sale there was noise and visual blight from heavy earthmoving equipment as the transfer site was being converted. Mr Wilson argues that the sale was purchased for the erection of a dwelling by the purchasers.
The sale sold in May 1997 for $215,000, and was analysed to $212,000 and applied at $190,000.
· Sale 2 – (83 Dunne Road, Burbank – Lot 24 on RP 79092)
This is located about 5 kms south-west of the subject, has an area of 1.728 hectares, and is zoned “Non-Urban”. The sale is of similar size as the subject, is gently elevated with a moderate slope to the centre of the lot and then rising to the rear. A shallow gully traverses the sale, which is seen as superior to the subject due to no impacts from kennels.
The sale sold in July 1996 for $220,000, which was analysed to $217,000, and applied at $195,000.
· Sale 3 – (123 Warriewood Street – Lot 12 on RP 816777)
This is the same as Mr Iveson’s Sale 1, and is located 0.3 kms east of the subject. The sale is smaller in area (1.058ha) with a long shared easement access (about 200 metres). Areas of the sale are low with drainage discharging across culverts along the easement access. The sale is in a quiet area with no intrusion of noise from the kennels. Overall the sale is inferior, and is seen as providing no real comparison to the subject.
The sale sold in October 1996 for $150,000, was analysed at $136,500, and applied at $133,000.
· Sale 4 – (127 Warriewood Street – Lot 13 on RP 816777)
This is the same as Mr Iveson’s Sale 2, and adjoins Sale 3 and shares the easement access. The sale is gently elevated and has a drainage situation similar to Sale 3. Overall the sale is inferior but it seemed to provide little assistance in comparison for similar reasons to Sale 3.
The sale sold in February 1998 for $175,000, was analysed at $163,500, and applied at $147,000.
There is no difference between the valuers in respect of agreeing that sales affected by noise from kennels tend to have a lesser value than corresponding sales which have no such noise impacts. However it is the interpretation of the extent of any diminution in the value that separates the parties. Mr Iveson notes that in his 1992 sales a reduction of up to $20,000 appears to be demonstrated.
A matter of some discussion between the valuers was the method of determining the unimproved value, and whether certain improvements such as the access road and drainage works along the easement access to Sales 1 and 2 of Mr Iveson, should be analysed from the sale price. Mr Iveson argues that the current practice when comparing residential sites is to merge such improvements with the vacant land, and for any comparison to “look at the site in its vacant state with its attributes”. (Transcript page 27). In making such a comparison with the subject Mr Iveson argues that it was not necessary to take a hypothetical approach, as he was able to retrospectively compare the difference in comparable properties from his Sales 7 to 10. While he did not make such a comparison in his assessment of the subject, Mr Iveson notes that the former sales demonstrated a reduction of about 12% for proximity to kennels, and appear to support his concluded value at $150,000.
Mr Wilson also advises that the owner of Mr Iveson’s Sale 3, subsequent to the sale, was required to provide additional foundation stability for his new home at a cost of $11,000 to $12,000, because of the low-lying nature of Sale 3. The purchaser negotiated the sale price down in view of the known foundation problems of that parcel. This Mr Wilson argues makes any comparison to Sale 3 not comparable. He also discounts any comparison to Mr Iveson’s Sales 4 or 5 because of, in his opinion, more indirect and inferior access to those sales compared to the subject.
Decision:
I note first that Mrs Cotterill draws support from the previous decision of this Court in AV90-107, and the learned Member’s conclusion to re-establish the relativity between the subject and Lot 38 to the west. In that regard Mr Paterson has drawn my attention to the findings of the Land Appeal Court, in respect of the weight to be given to earlier decisions, in the matter of Stubberfield v. Valuer-General (AV89-508), 1 June 1994 unreported. In that matter the Land Appeal Court considered the decision of the High Court of Australia in Federal Commissioner of Taxation v. St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336, at 383. In the Stubberfield decision, the Land Appeal Court said at page 29:
“We have also borne in mind the cautionary comments of the present Chief Justice of the High Court of Australia that:
‘too much attention is given both by valuers and judges to what has been said by courts in other cases on matters of fact and discretionary judgment, not being matters of law. Essentially valuations are estimations involving findings of fact and discretionary judgment made on the evidence given in the individual case and by reference to the circumstances of that case. To apply slavishly the approach taken by a judge in another case … is to attribute to them the force that should be confined to propositions of law.’ ”
The Land Appeal Court noted in Stubberfield that the nature and extent of the use of the subject land, and relevant features on neighbouring blocks, may also change from year to year. The Land Appeal Court concluded at page 29:
“Accordingly, it is necessary to make a determination in this case mindful of what has gone before but based on the evidence properly tendered and proved in the present proceedings.”
While I accept that the learned Member’s former conclusions of the subject land in 1990 were an accurate assessment of the evidence at that time, my present task is to assess the unimproved value on the evidence now presented. If I consider then the matter of the nature of the land I find that there is agreement between the parties and there is no issue on that matter.
(i)The Impact of the Kennels –
The most contentious issue in this matter is the impact of noise, odours and visual intrusion, upon the subject from the adjoining kennels. However before examining those matters in detail I must repeat that it is not the role of this Court to seek to resolve those matters. That is the task of the Council in the first instance, and any subsequent actions would be addressed in another place. It is the task of this Court however to consider the impacts of such matters and how they influence the unimproved value of the land.
On the evidence provided I would agree with both valuers, and Mr Carter, that the barking of the dogs is excessive, and very disturbing. However the difficult task is to determine any resulting loss in value of the subject as a consequence of those disabilities. The respondent argues that the owners of Lot 39 to the west of the kennels have not lodged any formal complaint about the noise. As such Mr Wilson notes that the unimproved value of Lot 39 has been retained at a level comparable with other parcels to the west. But that does not explain whether the noise levels cause problems to the owners of Lot 39. There may be other reasons why they have chosen not to complain. An understanding of the physical principles of noise attenuation would suggest that a similar impact was likely to have been experienced at Lot 39 as to that experienced by the subject.
On the evidence before me I believe that the unimproved value of the subject should reflect a lower level than that of Lot 38 (the kennels) and because the subject is the nearest lot to the source of the noise, I believe that parcel should reflect the maximum reduction in the value for that purpose. I have no evidence of sales during the relevant period which would directly reflect a comparable impact from noise, except for Mr Iveson’s Sale 3 (Lot 7), and Mr Wilson’s Sale 1 (Lot 36). However both of those sales represent a different level of noise intrusion, being related to sounds from passing traffic for Lot 7, and to noise from heavy earthmoving equipment on Lot 36. The noise at Lot 36 is also generated at a greater distance from Sale 1, compared to that at the subject. It is also a physical principal that noise levels vary in an inverse exponential manner as the square of the distance from the source.
While the sales evidence of Mr Iveson in respect of his Sales 7 to 10 is now some years old, the evidence at that time suggested a reduction in value because of barking dogs of about $20,000 for a comparable lot. As the market price for similar lots has now approximately increased by a factor of 30% ($165,000 to $215,000), the differential for noise intrusion might now represent $26,000 to $30,000. If I apply that difference to an estimated unimproved value of the subject at say $205,000, as it is slightly lower in elevation (about 15 metres) than Lot 38, I arrive at an approximate unimproved value for the subject at $175,000. However, while evidence was given in the former appeal (AV90-107) that attempts had been made by the owners of the kennels to upgrade the facility, the current evidence suggests that the noise impacts may well have increased in intensity. On balance I believe allowing any uncertainty in favour of the appellants, a value something less than $175,000 would be more appropriate on the basis of a comparison on the matter of noise impacts. Such an unimproved value would appear to support the relativities of parcels in that area.
(ii)Comparison of sales –
Of the sales provided I find Mr Iveson’s Sales 1, 2 and 6 are common sales with Mr Wilson. His Sales 7 to 10 are provided merely to compare relative impacts of noise, and Mr Wilson disregards Mr Iveson’s Sales 3, 4 and 5 because of the different nature, locality and access to those sales. However, while I believe Mr Iveson’s Sales 4 and 5 have some relevance in view of their proximity to the subject, in view of the known instability of the soil on Mr Iveson’s Sale 3 (Lot 7), I will ignore that sale in my comparison.
Mr Wilson’s Sale 2 was provided only to indicate, in his opinion, what a comparable lot might be valued at if there were no impacts of adjoining kennels. On that basis I see little difference in comparing Sale 2 to applying a comparison based upon relativity with other lots to the west of the subject.
In summarising then the remaining sales I find:
| Sale | Price | Comparison Mr Iveson Mr Wilson |
| 123 Warriewood Street (Lot 12) | $150,000 | Superior Inferior |
| 127 Warriewood Street (Lot 13) | $175,000 | Superior Inferior |
| 106 Bacton Road | $215,000 | Superior Superior |
| Lot 4 Glen Court | $185,000 | Superior Not compared |
| Lot 6 Glen Court | $167,500 | Superior Not compared |
The key to the difference in understanding of the two valuers in respect of 123 and 127 Warriewood would appear to relate to whether the costs of improvements on the access road, two culverts and power supply down the easement access, should be allowed for or not. Mr Iveson argues that if those sales were compared as existing lots with the services “melded” into the site, then they are superior. However he agrees that if those parcels are considered on the basis of those improvements being removed for purposes of determining the unimproved value, then the unimproved values would be inferior to the subject.
On the evidence it would appear that the access to Lots 12 and 13 are each provided by a long strip of land which is part of the parcels (the panhandle), and not by easement access only. As such the improvements actually lie within the curtelledge of each parcel, and they are therefore improvements upon the land. As such the total cost of some $32,000 for providing those shared services should be apportioned over Lots 12, 13 and 14. Mr Wilson’s approach of deducting some $10,500 from each parcel to allow for those improvements is appropriate.
On that basis I accept the comparison that Lots 12 and 13 as unimproved parcels, are inferior to the subject. If I note Mr Iveson’s comparisons only of his Sales 4 and 5 the subject could have an unimproved value of something less than $167,500. Based upon the applied unimproved values of those parcels, I believe the subject could have an unimproved value between $175,000 and something less than $167,500. However that comparison would tend to conflict with the relativity approach applied previously using the impact of noise as discussed.
In the end Mr Wilson has tried to allow any doubt in determining the unimproved value in favour of the appellants and has applied a conservative value at $157,500. I find no error in such an approach. (See Commissioner of Succession Duties (SA) v. Executor Trustee and Agency Company of South Australia Limited (1947) 74 CLR 358, at pages 373 and 374 per Dixon J).
Summary:
In concluding this matter I note that section 33 of the Valuation of Land Act directs that any valuation is deemed to be correct unless proved to the contrary. The onus of proof rests upon the appellant under section 45(4). I also note that in seeking to prove that the valuation is incorrect, the appellant must prove either that the Chief Executive has made an error or has used an incorrect principle. Guidance to this was given in Brisbane City Council v. The Valuer-General (1977-78) 140 CLR 41, when speaking in the High Court of Australia, Gibbs J said at page 56:
“In my opinion once it is shown that in making the valuation the Valuer-General acted upon a wrong principle, or made a serious error of fact, the presumption created by s.13(7) is rebutted. ”
(Section 13(7) is now section 33.)
On the evidence this has not been rebutted, and I believe Mr Wilson’s value at $157,500 is a conservative figure.
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 Lot 37 on RP 92862 as determined by the Chief Executive at $157,500 is affirmed.
Costs of the Application to Dismiss –
I turn now to the matter of whether the awarding of costs is relevant in respect of the preliminary application to dismiss this matter, which was subsequently disallowed. As noted, I gave notice at that time that I would consider any costs that may have occurred as a result of that application. I also note that the respondent, in withdrawing his appeal to the Land Appeal Court, advised that he reserved the right to raise the matter of costs arising from that application on the determination of the merits of the appeal against the unimproved value.
Subsequent to his withdrawal of the appeal to the Land Appeal Court, on 23 February 1999 the respondent has now made a further submission to this Court on the matter of whether costs should be considered in respect of the application to dismiss the appeal. Mr Paterson argues that guidance to be found in Bowden v. The Valuer-General (supra) supports the principle that costs should not be awarded against any party unless, in the light of all relevant circumstances, the Court is satisfied that it is the proper thing to do. Indeed the attitude to be adopted by this Court was established in Bowden v. The Valuer-General at page 147, where the Land Appeal Court said:
“Easy access to the Land Court to air grievances and have valuations reviewed is, as we have already stressed, most desirable in revenue cases, and such access should be available without fear of costs being awarded to either party except in special cases.”
That principle was also followed by the Land Appeal Court in Hymix Industries Pty Ltd v. Valuer-General (1990-91) 13 QLCR 173, at page 186. In that matter the Land Appeal Court upheld the appeal but ordered that no costs should be awarded as the evidence which decided the matter had not previously been placed before the Land Court. Accordingly it found that neither party had approached the matter in an arbitrary, frivolous or vexatious manner, or had completely disregarded principles which should be applied.
The matter of costs awarded in respect of matters raised in a “without prejudice” objection conference between the parties was also challenged in the Land Appeal Court in Chief Executive, Department of Lands v. Juris Towers Pty Ltd [1994-95] 15 QLCR 273. In the Land Court the learned Member had awarded costs on the basis of certain discussions made during that confidential conference. The Land Appeal Court reversed that decision, and followed the principle established in the Hymix Industries Pty Ltd case, directing that there be no costs awarded in either the Land Court or the Land Appeal Court decision on that matter.
Mr Paterson has also drawn my attention to, in his opinion, the premature nature of the appellants’ claim for costs in this matter. He notes correctly that, in the language of section 70 of the Valuation of Land Act, any claim for costs incidental to the appeal, should follow and not anticipate the outcome of the decision.
While Mr Paterson is strictly correct in his understanding of the Legislation, I believe the appellants have partially confused the nature of the direction from this Court on 10 December 1998 “that at the conclusion of the hearing I will consider any application for costs which might arise as a result of that direction”. In submitting their claim for costs the appellants have apparently included all of their costs for professional advice incidental to the hearing. However it was never the intentions of this Court to make any decision on any of the costs prior to determining the merits of the matter.
In analysing the appellants’ claim I find that Hemming & Hart’s legal costs were associated with preparing the appeal; while Mr Iveson and Mr Palmer’s costs were apportioned between time incidental to the appeal, and lost time due to the application to strike out as follows:
| Professional Advice | Costs of the Appeal | Application costs to strike out |
| Hemming & Hart | $ 385.00 | - |
| Mr Iveson | Fee $ 350.00 plus | 2 hrs @ $200 = $400 |
| Mr Palmer | 2 hrs @ $150 plus costs = $383 | 2 hrs @ $150 = $300 |
| TOTALS | $1,868.00 | $700 |
On that basis I find the appellants’ amounts applicable to time spent in resolving the application to strike out the matter on 10 December 1998 come to $700. However I note that, while the appellant has actually paid all of those costs, the hourly rate for Mr Iveson for the initial two hours lost due to the application to dismiss the appeal, is at a higher rate than for the period that he actually gave evidence and assisted the appellants.
In respect of whether this Court has the powers to award costs in this matter I have already noted that powers as such are restricted under the Valuation of Land Act by section 70 in respect of the final value determined for the land. The direction of section 70 is really to define when costs are not to be awarded. There is some provision for the awarding of costs relating to an adjournment due to a defect in a notice of appeal, but such costs may only be awarded in favour of the Chief Executive.
The only powers to award costs which may be relevant to this matter, are more likely to be found in the provisions of section 41(9) of the Land Act 1962, which states:“41.(9) The Court may make such order as it thinks fit as to the costs of or incidental to any matter that it has jurisdiction to hear and determine including, without limiting the generality of this subsection, the costs of an adjournment or application made in a pending matter, allowances to witnesses attending for the purpose of giving evidence at the hearing and the costs of any survey of boundaries. ”
The Land Act 1962 continues by virtue of section 52(1) of the Land Act 1994.
In considering this matter I note there is some similarity with the findings of Korab & Co Pty Ltd v. The Minister for Natural Resources (SL06/47783), 23 August 1996, unreported. In that matter the respondent had suggested that the applicant, a lessee seeking a valuation of land for the purpose of conversion of the lease, “had, by its behaviour, forced the respondent into Court”. (Page 3). The application for costs by the lessee arose out of an application to determine whether the Land Court had jurisdiction to determine the merits of the conversion. The Land Court’s decision of 6 March 1996, with reasons published on 29 March 1996, had the effect of allowing the merits of the substantive matter to be heard following the completion of certain formalities. The hearing of the jurisdiction matter was heard on 26 and 27 February 1996, and the substantive matter on the merits was heard on 13 and 14 March 1996.
In that matter while the respondent did not succeed in having the matter struck out in toto, he did “succeed in assuring that the matter was placed before the Court in the required manner” (page 4). However the Korab matter may also be distinguished in as much as the learned Member in that matter was critical of the time wasted in the hearing of the respondent’s jurisdiction application, which did not focus upon the key issues until the second day. In the current matter Mr Paterson was direct and succinct in his application, and any time involved with the hearing of the application, and deciding to reject the application, were kept to a maximum of only two hours on the day of the actual hearing of the merits of the matter. To that extent any extra costs incurred by the appellant were kept to a minimum. Such conduct by the parties is a relevant consideration when deciding whether costs should apply. (See Ritter v. Godfrey [1920] 2 KB 47). It is also relevant to note that the Korab case dealt with the matter under the provisions of the Land Act and not, as with the current matter, under the Valuation of Land Act.
In the end the Member apportioned costs in Korab, finding some blame also on the part of the appellant applicant. In the current consideration of costs associated with the application to dismiss the appeal there is no suggestion that Mrs Cotterill has directly contributed to that matter.
I turn then as to whether I have the powers to award those costs associated only with the unsuccessful application to dismiss the appeal ($700). Based upon the decision on the merits of the substantive case, and in line with directions given in respect of the Valuation of Land Act, I make no order as to costs on the substantive matter, and each party should bear its own costs on the merits.
In seeking to determine the extent of any costs which might apply to the special circumstances of this matter, I note that in defining the role and powers of the Land Court, section 41(9) of the Land Act 1962 provides discretion to the Court “as it thinks fit”. I note also guidance to be found in State Government Insurance Office v. City of Perth [1990-91] 71 LGRA 123, where, in addressing the matter of the level of costs to be applied, Franklyn J said at page 139:
“The power conferred by s.33 of the Act is a current power vested in the Tribunal which may be acted upon by it in the absence of a scale prescribed under s. 32(2). However, such power is to award such costs as the Tribunal thinks fit and in my opinion requires it to determine what costs are appropriate in any particular case and to award costs in that sum. It may do this by fixing the amount thereof.”
While I accept that the merits of the substantive matter fully vindicate the respondent’s approach to determining the final valuation, his apparent frustrations in seeking a resolution may have, in my opinion, clouded his objectivity, resulting in the unsuccessful application. In the end the appellants have been burdened with the additional costs of $700, beyond those which they might reasonably have been expected to pay. I therefore order that the respondent pay the appellants’ costs to the extent of $700 in this matter, only in respect of the unsuccessful application to dismiss the appeal.
(NG Divett)
Member of the Land Court
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