De Lange v Chief Executive, Department of Natural Resources

[1999] QLC 21

[1999] QLC 21

 

LAND COURT,

BRISBANE

31 March 1999

Re:     Determination of Unimproved Value –

City of Brisbane – Division of Brisbane
  (Ref. AV98-127)

Machiel De Lange

v.

Chief Executive, Department of Natural Resources

D E C I S I O N

This appeal is against the determination by the Chief Executive of an unimproved value of $94,000 for a 250 square metre parcel of land situated at 60 Pratten Street, Petrie Terrace, and which is more particularly described as Lot 1 on RP 10679, Parish of North Brisbane.  The land is included within Precinct DHIp of the “Special Development – Petrie Terrace and Spring Hill Development Plan” zone under the provisions of the Town Plan for the City of Brisbane effective at the date of valuation (1 October 1996).
The appellant contends within the notice of appeal for an unimproved value of $80,000. The grounds of appeal, to which the appellant is limited under the provisions of section 45(4) of the Valuation of Land Act 1944 read:

“1.       Land cannot be used for flat or high rise (Heritage)

2.      Subject to erosion, in 38 years has had several cubic meters added to it.  ”

Mr De Lange furnished evidence in support of the grounds of appeal.  He says his land is subject to erosion on its left hand (or higher) side and on its right hand (or lower) side.  There is a type of terrace on the land and he confirmed that every 10 years he has to buy a 2 cubic metre load of soil and has to have it spread out on the land to reinstate its level.  Mr De Lange has lived in the house on the land for 39 years and he claims that due to the erosion, there is no original soil left.  He and his neighbour have built a retaining wall and there is also another rock wall.

Mr De Lange told us that the area within which his property is situated has been declared a Heritage area, and accordingly he cannot demolish his house and build flats, and further that the neighbouring house is so close to the boundary that he cannot open his windows.  Because of the proximity of the adjoining house, Mr De Lange cannot install casement windows and has to have louvres.  Although not referred to in his grounds of appeal, Mr De Lange told us that his property is close enough to Hale Street for it to suffer from traffic noise.

Mr De Lange pointed out that he has to keep two drains in Pratten Street outside his property clear, because if they block up, stormwater from the street enters his garden. 

The basis for Mr De Lange’s estimate of his unimproved value of $80,000 is that he asked two real estate agents a while ago as to what they thought was a fair unimproved value of the land and he divided the two advised values.

The valuation under appeal was made by Departmental Registered Valuer George William Lindberg who describes the nature of the land as being of medium elevation and level with the street and its frontage.  He says it has a gentle crossfall from east to west.  It falls about 1 metre across the width of the land of approximately 12 metres.

Mr Lindberg confirms that it is the intent of the development plan in Precinct DHIp to encourage detached housing which reflects the typical Petrie Terrace character.  Mr Lindberg told us that the suburb of Petrie Terrace has become popular during the last 10 to 15 years as it is a handy place to live.  He agrees that no multiple unit buildings can be built in the precinct with the exception of along some of the main thoroughfares, but older-style buildings can be demolished or removed and/or altered, providing replacement housing is constructed in a suitable style to reflect the Petrie Terrace character of buildings in the area.  He says there are buildings with cultural significance in the area.  He instanced the demolishment of an old house at 39 Belgrave Street and its replacement with a new dwelling which reflects the Petrie Terrace character, and pointed out that there is a new dwelling erected on his basic sale land at 19 Melford Street.  But in any case, Mr Lindberg says that the land is used for single unit dwelling house purposes and must be valued as such. 

Mr Lindberg has relied for his valuation assessment upon the sale of Lot 14 on RP 10683, Parish of North Brisbane, containing an area of 177 square metres from Magmead Pty Ltd to Kemp on 7 June 1996 for $93,500.  This is the site at 19 Melford Street.  Mr Lindberg has analysed this sale to reflect an unimproved value of $93,000.  The Departmental valuation on the site as at 1 October 1996 is $85,000.  Mr Lindberg considers the sale site to be inferior in location and size when compared with the subject property.  It is similar in shape but has superior access.  Overall Mr Lindberg regards this sale land to be inferior to the subject land. 

Now it has often been said in this Court that the best basis of valuation when the task is to determine unimproved value is the use of sales evidence.  Mr Lindberg has provided the Court with a sale and it is located in relatively close proximity to the subject land and prima facie supports the unimproved value under appeal.

Mr Lindberg recognises that Mr De Lange’s land is sloping and it is only natural that it would suffer from erosion problems over the years.  But this surely must constitute a similar problem for many sites in the area as the residential land at Petrie Terrace is well recognised for its undulating to steep contours.  Further, I note that Mr Lindberg’s basic sale property is closer to Hale Street than is the subject land and it too would suffer from traffic noise, perhaps to a greater extent than Mr De Lange’s property.

The Court is not influenced in its decision by Mr De Lange’s evidence about the opinions of the real estate agents.  They were not called by him to furnish evidence in support of their respective opinions, and accordingly no weight can be given to this evidence.

In all the circumstances, I cannot find that the onus resting upon the appellant under the provisions of section 45(4) of the Valuation of Land Act has been discharged. It follows that the appeal be dismissed, and that the unimproved value of $94,000 for Lot 1 on RP 10679, Parish of North Brisbane, be affirmed.

(CH Carter)

Member of the Land Court