Cousin v Chief Executive, Department of Lands

[1995] QLC 85

[1995] QLC 85

 

  LAND COURT

BRISBANE

30 August 1995

Re:     Application for Rehearing -
  Land Act 1962 (s.43).
  AV94-559.

Robert and Valerie Cousin
  v.
  Chief Executive, Department of Lands

D E C I S I O N

This is an application for a rehearing under s.43 of the Land Act 1962 (the Act) in the matter of an appeal against the determination of the Chief Executive, Department of Lands, of the unimproved value of the appellants' land situated at 28 Carl Street, Woolloongabba.  The relevant date for the purposes of the valuation was 30 June 1993.  The appeal to the Land Court followed an objection against the valuation of the land in the sum of $195,000 which was disallowed.  In the hearing of the matter, the Chief Executive, through registered valuer Mr JR Kilgour, led evidence to a value of $185,000.  The appellants estimated the unimproved value of the land in the sum of $144,000.  Mr R Cousin represented the appellants and gave evidence orally.  Mr Kilgour was the only other witness.  His evidence comprised a report and valuation together with sales data and locality maps.  The matter was heard on 24 July and the decision given on 28 July 1995, allowing the appeal and determining the unimproved value of the land in the sum of $185,000.  The decision was based on the evidence before the Court in typewritten form and notes made by myself. No transcript was obtained.
           The application is made on grounds that the decision "does not honestly or fully reflect the evidence given to the Court and further the decision contains some errors of fact". 
           Following the application, a transcript was obtained and copies provided the parties before the application was heard.  Under s.43 of the Act it is provided that an application "wherever practicable shall be dealt with by the member who pronounced the decision".  The reason for this is obvious.  The appellants will see in the numerous authorities cited by Counsel for the respondent that (a) a rehearing is not the appropriate action if the application constitutes no more than a plea for reconsideration of the evidence already before the Court and (b) that a rehearing may be appropriate if errors of substance can be identified; for example, "a rehearing would be appropriate in cases where inadvertently one or other party has led evidence which was later found to be incorrect".  (MP Jobin-Decor v. The Valuer-General (Land Court, Mr Barry, President) AV90-25. 
           In the subject case, three issues are identified as not being properly recorded or weighed in the written decision of the Court.  The first relates to the description of the improvements on the block.  My notes of the evidence given by Mr Cousin record the improvements as comprising an old timber building converted into three flats and about 70 years old.  This is verified in the transcript.  The valuation report refers to four flats.  The decision refers to four flats.  There is no dispute that the former is correct.  However, this is of no consequence as the land under law must be valued as unimproved land for its highest and best use under its zoning as "Residential BR4" and in that respect there is no dispute as to its potential.  Second, the appellants believe that the Court did not appreciate the evidence given by Mr Cousin covering public housing in the area and the effect it has on the amenity.  The decision of the Court records this appreciation when speaking about the potential of the lot as seen by Mr Cousin.  Third, it is submitted that the decision does not record the evidence given by Mr Cousin on noise from the south-east freeway and traffic density using Carl Street in comparison, more particularly with Wolseley Street, in which the sale land comparisons used by Mr Kilgour are situated.  This evidence and other evidence such as proximity to shopping facilities, of course, has to be weighed with the evidence given by Mr Kilgour and a decision (opinion) expressed by the Court on the attitude which the hypothetical prudent purchaser would take.  In the result the Court concluded that there was little in terms of value between the subject land and the sale lands. 
           In the circumstances I find that the proper course for the appellants to follow if they remain dissatisfied with the decision is to take the matter on appeal to the Land Appeal Court.
           Accordingly, the application is refused.
  (DM White)            
  President of the Land Court