Evans v Chief Executive, Department of Natural Resources
[1997] QLC 36
•4 April 1997
|
BRISBANE
4 APRIL 1997
Re: Appeal against Annual Valuation -
Valuation of Land Act 1944 -
Valuation Roll No: 10536
Local Government: Brisbane City
(AV95-519).
Lewis J, Jacqueline E and Doris J Evans
v.
Chief Executive, Department of Natural Resources
(formerly Department of Lands)
D E C I S I O N
Background:
The key issue in this case relates to the impact of natural ground water upon the subject, and its consideration in relativity with adjoining parcels. The appeal relates to a residential property at 23 Vaucluse Street, Wavell Heights, and described as Lot 154 on RP 68276. The land is zoned as "Residential A" under the Town Plan of the Brisbane City Council dated 13 June 1987.
The lot is used as a single residence by the appellants, and is situated within a 9 kilometre radius north of the Brisbane GPO, 1.2 kilometres east of the Chermside Regional Shopping Centre, and within 1.2 kilometres of the Wavell Heights State High and Primary School. The lot has easy vehicle access to Vaucluse Street, which is a standard width, Type A carriageway which is bitumen sealed with concrete kerbing and channelling. Utility services available include water, electricity, sewerage and telephone. The lot has an area of 617 square metres, and is regular in shape, with a comparatively low elevation and a gentle slope from south-east to north-west. The appellants claim that there is a shallow "saddle" towards the centre of the lot where the dwelling is located, and the respondent agreed that the land flattens in that area. The dwelling is low-set timber, erected under War Service Homes supervision but purchased later by the appellants in 1978, where they have resided ever since.
The Chief Executive, Department of Natural Resources, on 20 March 1995, issued a valuation notice with a date of valuation at 1 January 1995, to an amount of $65,000. Following an objection, the Chief Executive on 26 September 1995, disallowed any further reduction, and confirmed the valuation at $65,000. The appellants have appealed against that valuation and claim that in view of the specific disabilities of the lot, in respect of natural groundwater seepage, the valuation should be reduced by 50% to $32,500.
Mr Lewis J Evans appeared on behalf of the appellants, and Mr R Paterson appeared for the respondent, calling evidence from Mr MW Cowley, the Departmental registered valuer, who determined the valuation.
Evidence:
The appellants have sought only one major issue in respect of the determination of the valuation, claiming that the valuer was unaware, and could not reasonably have been aware, of the existence of a localised groundwater seepage under the dwelling on the subject. This localised seepage causes the property to become very "boggy" in nature, and is the only property in the street to display such properties. From a long period of residence on the subject, the appellant has determined that adjoining lots, while having similar topography as the subject, do not have the same seepage, or groundwater extrusions that occur on the subject. Mr Evans gave evidence of over 50 years as a farmer in the Monto area, where he had encountered similar groundwater seepage or "springs", to the subject. The appellants claim that the subject actually has a shallow "saddle" towards its centre where the dwelling is erected, which may have something to do with the natural "spring".
Mr Evans gave evidence that he is not seeking redress in respect of surface runoff during heavy rain periods, as with his farming experience, he understands this would have been allowed for in the determination of the topographic features for the subject. He also gave evidence that there had been no landfill on the subject, and any current damage to the property was as a result of the natural "spring" on the site.
The appellants provided records of costs incurred by them in rectifying subsidence in the dwelling as a consequence of the natural "spring", together with photographs of the restumping and "bridging" needed to prevent further subsidence, and damage to a bathroom above the subsiding area. The photographs showed how special bridging of the stumps was necessary in order to get firm footings on the land. Photograph "E" showed bridging above the ground surface, and another stump replaced at photograph "F" had the bridging at the bottom of the stump foundation hole.
In respect of the bills for repairs supplied, the appellants advised that they had obtained two competitive tenders for the repairs from builders' names obtained from the Yellow Pages. The comments supplied from the builder shown as D in Exhibit 2, sought to clarify the reason for the damage to the building. The appellants have now had to pay several amounts for expenses to the dwelling as a consequence of the natural "spring" causing subsidence. In the matter of the groundwater impacts the respondent confirmed that in 1990 the appellants had raised this issue at objection, and the Chief Executive had made a reduction in the valuation at that time for the effect of the groundwater disability, which has been retained in relativity through subsequent valuations. The respondent noted that the current valuations of Lots 153, 154 and 155 all reflect a reduction from lots to the east and west. Both parties agreed that Lot 152 has constructed a swimming pool and encountered no groundwater problems. However, the appellants contested that Lots 153 and 155, adjoining the subject on either side, were similar in respect of the impact of groundwater to the subject. The appellants have provided assistance to the owners of Lots 153 and 155 over a period of years, and is familiar with those properties, and has inspected underneath both dwellings, and confirmed that there is no groundwater "springs" under either property. He does not agree that the Chief Executive fully addresses his disability in 1990. Mr Cowley had inspected the property during heavy rain for surface water flows, but gave no evidence of knowledge of groundwater seepage on Lots 153 and 155.
The appellants confirmed that a problem with natural spring soakage in the roadway outside their property was fixed by the Brisbane City Council with the construction of a 750mm drain along the road. He confirmed that the problem is not just a result of surface water during wet periods, but occurs even in dry periods also. He contends that the seepage occurs only on the subject, as he has personally inspected other properties in Vaucluse Street and found no similar problems.
In respect of the relativity between surrounding lots, the appellants claim that the specific groundwater problem on Lot 154 has not been fully addressed. They admit that land to the east and west are valued higher, reflecting their lesser drainage impacts, but they contend that Lot 154, because of the peculiar and isolated nature of the groundwater seepage, should be valued less than either Lots 153 or 155. Their estimate of valuation is that it should be half of the values of the two neighbouring lots. They have no sales evidence to support that view.
In respect of the sales evidence of the respondent, Mr Cowley supplies three sales of comparable vacant land. In accordance with principles established in previous cases, and in particular with the decision in PH Clough v. The Valuer-General - Caboolture Shire (1981-82) 8 QLCR 70 (LAC) at p.76:
"It has been judicially laid down many times and in many jurisdictions that in ascertaining unimproved value, sales of unimproved land of comparable quality, situation, etc., to the subject parcel, if they are available, are to be preferred as the best guide for arriving at unimproved value. The reason is obvious. In applying such sales there is no room for error in analyzing the value of improvements. "
Mr Cowley supplies evidence of sales at:
•Sale 1 -(54 Cremorne Road, Kedron - Lot 1 on RP 858750). This is a "hatchet shaped" rear allotment, located approximately 2.2 kms south of the subject, close to Gympie Road which is a major arterial road. The supply of utility services is similar to the subject, the zoning is "Residential A" and the area is 700 square metres. It has a moderate slope, falling from north to south, with moderate elevation, and little outlook. It is considered to be superior to the subject, and sold in July 1994, for $86,000, which, after allowing $3,500 for improvements, provided an applied value of $80,000.
•Sale 2 -(5 Awaba Street, Wavell Heights - Lot 83 on RP 808959). This is a regular shaped lot, with gentle cross slope and moderate to good elevation, and is zoned as "Residential A". It is surrounded by well established, older style homes of above average quality. All four utility services are available, and it has easy access to Awaba Street. The land is located approximately 0.7 kms east of the subject and has an area of 400 square metres and, because of its smaller size, is seen as inferior to the subject. It sold in March 1994, for $75,000, which, after allowing $1,000 for improvements, provided an applied value of $72,000.
•Sale 3 -(3 Rogers Parade West, Everton Park - Lot 10 on RP 204325). This land is regular in shape with a moderate to steep slope falling from west to east from the road, and is located about 6.2 kms west of the subject. It has some elevation and outlook to the east, but suffers from traffic noise from nearby South Pine Road, and is zoned as "Residential A". Access from Rogers Parade is partially hindered due to the slope from the street. All four utility services are available, and the land has an area of 624 square metres. The subject, due to its level profile and closer proximity to the City, is considered to be slightly superior to this sale. Rogers Parade is also subject to more traffic noise from South Pine Road. This sale sold in May 1994, for $67,000, and after allowing $1,000 for improvements, had an applied value of $63,000.
Mr Cowley was not aware if any of the sales had a groundwater seepage problem. The appellants did not contest the sales evidence or dispute their application to the subject. Their only dispute lay with the quantum of allowance for disability to the subject as a result of the groundwater seepage.
Decision:
In respect of the sales evidence supplied by the respondent, I am persuaded that Mr Cowley has wisely selected comparable sales and that his assessment of the valuations in the Vaucluse Street area are soundly based.
In respect of the general relativity between lots in Vaucluse Street, I believe the current valuations provide adequately for the difference in lots as they move away from the low point of Vaucluse Street near Lots 153, 154 and 155. This general disability from groundwater was accepted in 1990, and similar relativities have been maintained since.
In the matter of the evidence of costs of repairs to the dwelling on the subject, I believe that a prudent purchaser would have considered the special design needs of a dwelling on a site that was subject to subsidence, and designed the additional foundations accordingly. The evidence from the appellants that the dwelling was erected by the former owners to Defence Service Homes Specifications, in my view, supports the argument that special foundations may have been required by the Defence Service Homes financing arrangement. The evidence of the appellant that when he had the old stumps replaced, they had very large bases and need winching out, support the view that additional foundations had been required at the time of erection of the dwelling. This supports the view that the "boggy" nature of the land was evidence at time of erection of the dwelling.
In the matter of whether the subject is in fact in a shallow "saddle" or is flatter in the area of the dwelling, I am persuaded by the experience of Mr Evans as a former farmer. I believe it is likely that his appreciation, based upon over 50 years on the land, would assist him in assessing likely groundwater subsidence sites. I also agree that it would have been unlikely that Mr Cowley could have been expected to know that particular aspect of the lot, which was covered by the dwelling, when he made his determination of the impacts upon the subject. I am persuaded therefore that Lot 154 does have some additional disability which is not occurring in the adjoining Lots 153 and 155.
However, in determining the quantum of that disability, I am not persuaded by the appellants' unsupported claim of a 50 percent reduction. In seeking to quantify how much the subject is disadvantaged over its neighbours, I note on the relativity map of the respondent that Mr Cowley has already reduced the value of Lot 153 by $5,000 in relation to its neighbour on Lot 152. Likewise Lot 155 is reduced by $3,000 in relation to its neighbour on Lot 156. These reductions recognise the likely nature of groundwater disability on these parcels. What we have on the subject is that there is actual evidence of subsidence as a result of groundwater on Lot 154, which already has cost approximately $3,450 to repair the bathroom and to replace the stumps under the dwelling, bearing in mind that the previous owner most likely undertook prudent precautionary action, probably under War Service Homes direction, to upgrade the foundations. Because of the nature of the actual groundwater extrusion, those precautions proved ineffective. On that basis, I believe an additional reduction to the valuation of $2,000 would seem reasonable, and reflect the additional foundation costs to the dwelling which should have been applied at the time of construction, over and above any extra foundations previously provided. The cost of alterations and repairs to the bathroom, I feel are more a matter of depreciation of the dwelling and should not form part of the allowance for the unimproved value of the land.
Summary:
In determining the amendments or alterations to the valuations, the onus of proof rests with the appellants, under section 33 of the Valuation of Land Act 1944:
"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. "
I find that on the evidence provided, the appellants have proved their case in that, while the valuations provided by Mr Cowley are sound, he was not aware, nor could reasonably have been expected to be aware, of the special disability attached to the subject in respect of the impact of the natural groundwater extrusions.
Conclusion:
Having examined the whole of the evidence, I am persuaded that the appellants have proved their case. The appeal is allowed, the Chief Executive's valuation is set aside, and the unimproved value of Lot 154 on RP 68276 is determined at Sixty-three thousand dollars ($63,000).
NG Divett
Member of the Land Court
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