Domelow v Chief Executive, Department of Natural Resources

[1998] QLC 34

[1998] QLC 34

 

LAND COURT BRISBANE

13 MARCH 1998

Re:Appeal against Annual Valuation - Valuation of Land Act 1944 - Valuation Roll No.: 24225

LocalGovernment:  GCCC-Albert

Geoffrey and Janis Domelow v.

Chief Executive, Department of Natural Resources (AV97-122)

(Hearing at Coolangatta) D E C I S I O N

Background:

This matter relates to a property located at 40 Koola Drive, Nerang, and described as Lot 249 on RP 155677. The land has an area of 1,690 m² and is located south-east of the Beaudesert- Nerang Road, and approximately directly 3.3 km, or 4.5 km by road, south-west of the Nerang Town Centre. The subject adjoins the Nerang Pony Club and has good access to Koola Drive which is bitumen sealed with concrete kerbing and channelling. The land is zoned "Residential A" under the Town Plan of the Gold Coast-Albert Council of 24 February 1994 and effective at the date of valuation of 1 October 1996. The key issues are the large increase in the valuation, the impact of a proposed traffic roundabout and the static nature of the property market.

The Chief Executive, Department of Natural Resources, issued a valuation of the subject at $80,000 on 10 March 1997. Following an objection, the Chief Executive confirmed that valuation on 10 June 1997. The appellants have appealed that figure, claiming the valuation should more properly be $55,000.

Mr G Domelow appeared and gave evidence for the appellants. Mr P Grennan appeared for the respondent, calling evidence from Mr AB Van Hees, the departmental registered valuer now accepting responsibility for the valuation, which was formerly undertaken by another valuer who is no longer able to defend the valuation.

The Evidence:

Mr Domelow argues that the recent large increase in the valuation is inconsistent with his personal observation of the property market in that area. He claims he is supported by advice from a local real estate agent who believes the market has been static for the last five years, and in fact has fallen by 10% over the last year. He bases his analysis on claims of vacant shop sites

in Nerang, and unsubstantiated evidence of a dwelling of some friends which, five years ago, was rented for $150 per week, and is now rented at $125 per week. As a small business operator (an upholsterer) he has noticed a shift in business from Nerang to other parts of the Gold Coast. Mr Van Hees felt there was no significant level of vacant shop sites in Nerang Town  Centre, but conceded that he had only been working in the area for a relatively short period of three months.  However the level of shop rentals has no direct relevance to the comparison of

sales of residential land when valuing the subject, according to Mr Van Hees.

Mr Domelow also provided information about an offer to sell a nearby vacant parcel of land in Dugandan Street (Lot 62 on RP 188742). This parcel is only 300 metres from Koola Drive, and was on the market on 27 November 1997 for $68,000. The parcel has an area of 846 m² and would be subject to less noise impact than the subject. That parcel was one of few vacant lots left for sale in the area.

The major concern of the appellants, however, is really the potential impact of noise from a proposed traffic roundabout to be developed at the intersection of McLaren Road and Yarrimbah Drive, about 100 metres to the rear and north of the subject. Because of its location those new roadworks will, in the appellants' minds, cause major traffic problems for the residents of their area, as it is on the only direct access to the Clareview Estate. That estate has 180 homes, two child-care centres, a general store, a cricket club and the Nerang Pony Club, all of which will have to use the new roundabout. While traffic to the Pony Club was seen as light during week days, it is subject to heavier traffic of horse floats and trailers on weekends.

Traffic plans were supplied which showed an extension of McLaren Road as part of a new bypass from an existing roundabout at St James Park, across the Nerang River and joining up with the Nerang-Beaudesert Road to the south-west of Nerang Town Centre. This was seen as a major traffic route and had generated considerable public speculation about future traffic volumes, noise and possible impacts upon the community. However, there was little factual evidence of reliable projected traffic volumes from the Government. What was known was that the roundabout would be constructed about 100 to 150 metres from the subject, and would connect by a steeper gradient section to its junction at a channelised traffic-light intersection with Beaudesert-Nerang Road.

The roundabout and the steeper incline in the road gradient was seen as possible factors which would retard smooth traffic movements. That would slow particularly heavy duty vehicles, with resulting increased engine and road noises. The potential for future traffic accidents was also perceived to be an impact upon the amenity of the subject.

Mr Grennan, however, argues that the traffic plan is still a proposed plan and has only been surveyed at the time of the appeal. Mr Grennan also argues that the current gradient of the roadway connecting to Beaudesert-Nerang Road is 16%, and the proposed gradient will only be 10%, thus easing the climb for heavy duty vehicles, which is being designed for traffic speeds of 60 kmph anyhow. On this basis he argues that the roundabout will be of benefit to the area, although he concedes that there is likely to be an increase in traffic volume.

It was agreed that, because of the less direct route to Brisbane via Beaudesert-Nerang Road, the major increase in traffic is likely not to involve daily commuters to Brisbane. However Mr Domelow argues that the Beaudesert-Nerang Road is one of the few inland routes from Gold Coast to Brisbane, and as such is likely to attract extra traffic, even heavy duty vehicles. The new road is being constructed by the Council, but will be taken over by the Government as a declared main road on completion. Any projected traffic volumes are speculative only at this time.

In respect of the road traffic plan, Mr Grennan noted that the Chief Executive had not been provided with the plan as part of the copy of the appeal. The Department had therefore been unaware of the full extent of the appellants' concerns until the hearing. Mr Domelow conceded that oversight, but argues that the Chief Executive as part of the Government, should have been aware of the road proposals anyway. Mr Van Hees argues that he was aware of the road proposal, but having now seen the traffic plan, he feels it will have a smoothing effect upon traffic movements, and will not adversely affect his valuation of the subject.

Mr Van Hees also argues that a further benefit will be increased access to the new commercial centre of Nerang at the Coles Supermarket and Franklins Centre to the east near the Pacific Highway. With the further development of the traffic overpass across the Pacific Highway at Pappas Street, direct access to the Gold Coast areas will be further improved. On balance, Mr Van Hees sees the McLaren roadworks as positive to the valuation and supports the value at $80,000. He concedes that the roundabout could have heavy traffic movements, but argues that it was too early to judge any impacts, which would be better determined at a later valuation once trends are established.

In summarising the case for the respondent, Mr Grennan argues that the appellants have failed to supply any evidence that would challenge the valuation based upon comparative sales, relativity or the nature of the land. The only argument was on the impact of traffic and Mr Grennan argues that it is too premature to be considered at this time, noting that with the removal of the existing traffic lights at the Pacific Highway, access to other areas east of the highway is likely to be improved. He also notes that any link between the Consumer Price Index (CPI) and

the valuation provides no comparison as there is no direct link between movements in those areas.

Mr Grennan also points out that an "offer to sell" land is not legally acceptable to the Court. For these reasons the respondent provided no statement to support his valuation, resting his case upon s.33 and s.45(4) of the act. Mr Domelow accepts that most of the Clareview Estate is likely to benefit from the road improvements, however he argues that, because of its closeness to the roundabout, the subject will suffer some disadvantage.

Decision:

I turn first to the large percentage change in the valuation, and note Mr Domelow's concerns that it does not appear to coincide with his personal observations or with the CPI. While I can well understand the appellants' concerns, it has been established in the Courts that there is no direct link between those factors. I note, for instance, NR & PG Tow v. The Valuer- General (1978) (LAC) 5 QLCR 378, the Land Appeal Court said at p.378.:

"It follows that a large increase over and above the previous valuation is in itself not a relevant issue provided bona fide sales of comparable parcels supports the new valuation."

That was also followed by the Full Court of Queensland in Clyde Henricks and Beverley Dell Henricks v. The Valuer-General (1983) 9 QLCR 59, where Macrossan J said at p.63:

"The percentage increase shown in the selected cases was in each instance considerably less than the increase applied to the subject land as between the two valuation dates. The weakness in such a selective comparison is obvious as there could be any number of reasons why blocks in the same valuation area should increase at different rates over a period of five years."

As the Full Court indicated, to make a selective comparison without verifiable evidence of market trends, provides no relevant comparison of the movement in the valuation of the land.

In considering the appellants' claim that an "offer to sell" of Lot 62 in Dugandan Street was also proof of a declining market, I am reminded that generally an "offer to sell" indicates no more than what a vendor wishes to receive for the land. However, in determining a fair market value for a parcel, there must be both a willing purchasers and a not unwilling vendor in order to consummate the sale. (See Spencer v. The Commonwealth of Australia (1907), 5 CLR 418, at p.432.)

In Australia Court procedures only binding contracts to sell and purchase have been admitted as evidence of value. In McDonald v. Deputy Commissioner of Land Tax, NSW (1915), 20 CLR 231, the High Court of Australia considered the matter of a written offer to sell a property, and found at p.239:

"When the matter has reached the point of a concluded contract, there has been a definite concrete fact established, which not only evidences value, but to some extent helps to create or modify it. Where an owner has actually parted with his land for a fixed sum and a buyer has parted with his money for the land, a clear event has arisen, which, based on the ordinary instincts and impulses of human nature, indicates a consensus of opinion between two adverse parties in the community respecting the value of similar land."

On the basis of those precedents I reject the "offer to sell".

I turn now to the matter of the potential impact of injurious affection afforded to the subject as a consequence of the future roadworks to the roundabout in McLaren Road. I note Mr Grennan's reliance on the findings of Kabale Holdings Pty Ltd v. Director-General, Department of Transport (A94-34), (15 October 1997, to be reported). In that matter the Land Appeal Court considered the findings of the former President in respect of the impact of noise and loss of visual amenity from a proposed Eastern Transport Corridor (ETC) on the Gold Coast. The Land Appeal Court increased the former President's findings that some impact was likely to occur to properties within a distance of 140 metres from the ETC. The President had allowed for a reduction of 10% in the value as appropriate within 140 metres of the ETC boundary, bearing in mind certain specific noise attenuation procedures proposed by the Department of Transport for the ETC. The Land Appeal Court increased that reduction in value to 12.5% (p.11).

However, in seeking to draw any comparison with the subject, several factors need to be considered:

(1)the particular nature of the subject and the intervening land between the proposed roundabout were not clarified;

(2)there was no evidence of any noise or visual impact attenuation procedures proposed for the roadworks;

(3)there was no definitive estimate of noise exposure forecasts for the roadworks.

Bearing in mind that the Kabale decision involved a matter of compensation for the loss of interest as a result of the ETC, and the current matter is one for an annual valuation purpose, which will be reviewed again at some future time, I find Mr Grennan's evidence appropriate that it is too premature at this time to make any conclusions about the impact of the roadworks.

Summary:

In considering this matter, I note that the onus to prove their case falls entirely upon the appellants under s.45(4) of the Valuation of Land Act which states in respect of an appeal:

"45(4) Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every ground shall be upon the owner."

Unless the appellants prove that the valuation has been determined by an incorrect procedure, or that there has been an error of fact, the valuation shall stand. (Brisbane City Council v. The Valuer-General (1977-78) HC, 140 CLR 41, at p.56) . I note also that s.33 of the Act states:

“33.     Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the chief executive shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered.”

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 valuation by the Chief Executive of Lot 249 on RP 155677 is confirmed at $80,000.

NG DIVETT MEMBER OF THE LAND COURT