Gilliland v Chief Executive, Department of Lands
[1996] QLC 99
•25 July 1996
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BRISBANE
25 JULY 1996
Appeal against annual valuation
Valuation of Land Act 1994
Shire of Pine Rivers (AV95-232)
John William Gilliland and Christine May Gilliland
v.
Chief Executive, Department of Lands
(Hearing at Brisbane)
D E C I S I O N
Mr John William Gilliland and Mrs Christine May Gilliland are the owners of land described as Lot 69 on Registered Plan 813374, Parish of Bunya, County of Stanley and containing 1,253 square metres (“the subject land”). On 1 January, 1995, the respondent, the Chief Executive, determined the unimproved value of the land to be $60,000. That valuation took effect from 30 June, 1995. Mr and Mrs Gilliland lodged an objection to the valuation and the objection was allowed in part. As a consequence, they were notified by a letter dated 19 June, 1995 that the unimproved value of the subject land had been reduced to $52,000. They lodged an appeal against the Chief Executive’s determination on 14 July, 1995 and stated that their estimate of the unimproved value of the land was $45,000.
At the hearing, Mr and Mrs Gilliland were represented by Mr MacAdam as their agent. The Chief Executive was represented by Mr Dunn, a valuer in the Department of Natural Resources (“the Department”). Various documents were put in evidence in support of the case presented by Mr MacAdam and I will refer to them in the course of these reasons. In support of the Chief Executive’s case, a statement by Mr Terrence Alexander, a registered valuer in the Department, was admitted in evidence. Oral evidence was given by Mr Gilliland and Mr Alexander.
BACKGROUND
Certain factual matters were not in dispute between the parties. I will set my findings on those matters out making brief references to the evidence on which those findings are based.
The subject land, which is located in the area controlled by the Pine Rivers Shire Council (“the Council”), is a rectangular shaped parcel of land situated on the southern side of Listonia Drive, Albany Creek and approximately 50 metres west of the intersection of Listonia Drive and Harpulia Place, Albany Creek. Listonia Drive is a two lane bitumen carriageway with concrete kerbing and channelling. Direct access to the subject land can be obtained from Listonia Drive by both eastern and western bound traffic.
The subject land is approximately one and a half metres above the road level. It rises to the rear and is well elevated. In its natural state, it has a moderate south to north slope and an east to west cross slope. It has approximately 800 cubic metres of fill. Town water, electricity, sewerage and telephone are all connected to the subject property.
The subject land is zoned “Special Residential” under the Pine Rivers Shire Town Plan gazetted on 14 May, 1988 and as amended. In conformity with its zoning, the subject land is used for single residential purposes.
EVIDENCE
Mr Gilliland said that he and his wife purchased the subject land in August, 1992 for approximately $65,000 when it was partly cleared. There were several trees on the land at that time. Only one other house had been built in the area at the time and that was on the western boundary of the subject land. A vacant block adjoined the eastern boundary and there were no houses on its southern boundary.
A number of photographs admitted in evidence showed various aspects of the subject land and the surrounding properties. Mr Gilliland explained where each photograph had been taken and what each depicted. In doing so, he said that at some time before 1 January, 1995 a stormwater outlet had been placed on the property adjoining part of the southern boundary of the subject land. That is the property numbered 82, Allamanda Crescent on Map No. 1 in Exhibit A (“Lot 82”). The pipe is approximately 8 metres from the boundary and is shown in photograph 3A as a white concrete pipe sitting approximately 200-300 millimetres above the ground (part of Exhibit H) (“the white pipe”). The white pipe is 90 millimetres in diameter. Water is shown to be gushing from the top of that pipe in the photograph and flowing to the north western corner of Lot 82.
Running along the boundary of the neighbour’s property is a black pipe (“the black pipe”). That pipe, Mr Gilliland said, channels water from some other point on Lot 82 and again discharges that water into the lower north western corner of Lot 82. The black pipe is shown in both photographs 3A and 3B (part of Exhibit D) and had been on Lot 82 on 1 January, 1995.
There is no drainage system to take away the water from either the white or the black pipes. The owner of Lot 82 uses both pipes to remove water flowing from his or her roof and from various other drains on the property. The water from those pipes, Mr Gilliland has said, cuts quite a deep “V” rut in Lot 82. The water pools around the boundary fence separating Lot 82 from the subject land. It pools in the north eastern corner of Lot 81, Allamanda Crescent (“Lot 81”). Lot 81 is on the western boundary of Lot 82 and part of its northern boundary adjoins part of the southern boundary of the subject land (photograph 3C, part of Exhibit D).
The water flows in a strong stream from the south eastern corner of the subject land towards sleepers which are shown in photographs 3E , 3F and 3G (part of Exhibit D). It continues in a strong stream down the sleepers and towards drains on the subject land. The water ponds in the area of the drains to a depth of approximately 8 inches, Mr Gilliland said.
Had the water not been channelled by the owner of No 82, Mr Gilliland said, he would have expected the water to flow in broad sheets across his and neighbouring properties on the western and eastern sides. There would have been a fair distribution of the water. The grass would have impeded its flow and there would not have been any erosion. This has occurred elsewhere in the area and does not seem to cause any problems. Until the house was built on Lot 82, Mr Gilliland said, there had been no difficulty with water from that property.
Mr Gilliland said that he had written to the Council on 23 November, 1993 expressing his concerns about the local flooding to his property. He asked that the Council install appropriate storm water drainage to alleviate the problem (Exhibit E). A letter from the Council dated 24 November, 1993 advised him that the matter was to be referred to the Council’s Works Committee (Exhibit F). The Works Committee’s minutes for its meeting held on 14 December, 1993 recorded that
“The allotments on the northern side of Listonia Drive are significantly below those backing onto them from Allamanda Crescent and as such surface flows experienced during an intense tropical thunderstorm are considerable. The zoning of these allotments is Special Residential and as such there are no rear roofwater drains to minimise the runoff.
The matter is exacerbated by the nature of the ground, weathered shale and the lack of landscaping/turfing of the uphill blocks due to their newness. The surface waters bring with them a sediment load of clayey fines and rock which is deposited on the levelled backyards of the houses in Listonia Drive as the velocities dissipate.
Three (3) letters have been received and Mr Gilliland has since verbally advised that he has had discussions with the various owners concerned to the end that approvals be granted for a joint community/Council project to solve the problems being experienced. As a minimum, he is asking for Council to provide a stormwater drainage design that will satisfactorily deal with the surface flows experienced.
The matter could be dealt with in three (3) ways:
(a) Lined open channels $ 5,000
(b) Roofwater drains $10,000
(c) Stormwater drains $20,000It is complicated by a lack of easements.” (Exhibit G)
The Works Committee went on to recommend
“That the residents be provided with a copy of the above report and they be further advised that Council is prepared to provide technical advice and plans in relation to the stormwater run off in the area, however, detailed designs should be undertaken by an appropriately qualified person employed by the residents involved.” (Exhibit G)
When the house was first built, Mr Gilliland said that, on the builder’s recommendation, a small drain was built near the south eastern part of the house. That drain was connected to the drainage system for the water from the gutters on the roof of the house and so into the storm water system. That is marked as drain 3 on Mr Gilliland’s sketch of his property (part of Exhibit A). It was thought that this would be sufficient to take the water that it would normally accumulate on the subject land. The natural flow of water over the subject land is from the south east to the north west. Mr Alexander accepted that 20% of the water collected by the drainage system on the subject land comes from rain falling on that part of the subject land not covered by the house built on that land.
Late in 1993, rain fell which made it apparent to Mr and Mrs Gilliland that there would be a serious problem with water from Lot 82. On the advice of their landscaper, Mr Gilliland said, they channelled the water from Lot 82 in two directions. In the first instance, water is channelled to a spoon agricultural drain at the southern end of the pool at the back of the house. That spoon agricultural drain runs around the back (or southern side) of the pool and part way down the western side of the house. Part way down that western side, it runs into drain 4 and then through an agricultural drain and pipes into drain 5. Water travels on to drain 7 which is a large drain gathering water also from drain 6 located on the eastern side of the house. From drain 7, the water is taken by means of an agricultural drain and two pipes to Listonia Drive. The spoon agricultural drain at the rear of the house and drain 7 are shown in photographs in Exhibit I.
The Gillilands installed drain 6 on the neighbouring property, Lot 68, Listonia Drive (“Lot 68”) and with the consent of the owner. The owner of Lot 68 has directed all of the water flowing from his or her neighbour at the rear and from the rear of his or her property towards the subject land. Drain 6 takes this water.
In the second instance, the water from Lot 82 is channelled to drain 2 located at the back of the house but to the west of drain 3. The water flows from there in a drain across the back of the house, down the western side of the house and into Listonia Drive. Drain 2 becomes clogged with leaves caught in the water flow and overflows into a concrete spoon drain constructed near the drain under the house. That spoon drain runs in a west-east direction into drain 8 also located under the house. Water from drain 8 runs into a pipe and then over gravel and grass into drain 1 located on the western side of the subject land. From drain 1, the water runs down a pipe to Listonia Drive. Photographs in Exhibit J show the water overflowing across the flooring under the house.
The flow of water is shown in the photographs included in Exhibit H. Those photographs show the water flowing from Lot 82 down the western boundary of the subject land and into drain 1. The Gilliland’s neighbour on the western side (i.e. the owner of Lot 70, Listonia Drive) has constructed a barrier to prevent the water from Lot 69 flowing into his or her property. Drain 1 is shown to be operating efficiently.
If it were not for the flow of water from Lot 82, Mr Gilliland said, he would not need the drain under the house. That would be so because of the lay of the land and because the water would be caught by drain 3 and by drains on the eastern side of the property.
Mr Gilliland said that he was not aware of any concentration of water from the subject land on Lot 70, Listonia Drive to his west (“Lot 70”). He was not aware of any concentration of water on properties to the east of the subject land from properties further up the hill. Mr Gilliland saw the water flow as a specific disability affecting his block.
The landscaping and drains on the subject land were constructed by Bluegum Landscapes, Mr Gilliland said. Bluegum Landscapes had prepared a quotation for undertaking the work as at 1 January, 1995. The drainage work to the eastern side (including drains 4, 5, 6 and 7) was estimated to have cost $3,885. That work on the western side (including drain 1) was estimated to have cost $3,580. The large drainage trench at the southern side of the pool at the rear of the subject land and the connection of two drains with concrete to fall to those drains was estimated to cost $2,760.
On a neighbouring property to the south east of the subject land, the land has been raised and flattened for the installation of a pool. Photographs in Exhibit M show the work. The rear of Lot 71, located on Listonia Drive and to the west of the subject land, maintains the natural slope of the land and is shown in photograph 1D (part of Exhibit M). That photograph also shows the depth of the cut on Lot 70 up to the western boundary of the subject land. At the rear of Lot 70 is a two metre cut, Mr Gilliland said. Below that is another cut of a further two metres. That cut is shown in photograph 1A. (part of Exhibit M). The excavation and retaining rocks on Lot 70’s eastern boundary with the subject land are shown on photographs 1B and 1C (part of Exhibit M). In carrying out the work, Mr Gilliland said, the excavators encroached on to the subject land and tore the roots of a mature Rose gum and Brush gum located on the subject land.
Mr Gilliland said that the cut on Lot 70 was made vertically. He approached the Council which he understood had not approved the work. On 1 July, 1992, Mr Gilliland wrote to the Council asking it to investigate and to enforce the appropriate by-laws to stabilise the cut to Lot 70 (part of Exhibit N). As the Council’s response, he received an information leaflet entitled “Retaining Walls” (part of Exhibit N). The work, he understands has now been approved and rocks and boulders have been added to stabilise the work and to prevent Lot 69’s being washed away. The rocks and boulders have been built above the natural slope of the land.
Mr Gilliland is most concerned that the land on the western boundary of the subject land will eventually subside and cause failure of the foundations on that side of his house. Those foundations are approximately a metre and a half from that western boundary. Mr Gilliland’s concerns remain even though the Council’s requirements have been fulfilled.
It was conceded by Mr MacAdam that the unimproved values attributed to Lots 68, 69, 70 and 71 were $63,000, $60,000, $58,000 and $59,000 respectively. Mr Alexander had not prepared the original valuation but had subsequently prepared a valuation. He said that these valuations, together with that for the subject land, show the appropriate relativities of the various properties.
Mr Alexander said the contour maps of the area showed that most of the blocks are sloping and so have drainage problems. Lot 71 has dealt with a similar problem caused by water directed to the north western corner of Lot 81 and so flowing on to Lot 71. The owners of Lot 71 have provided drainage by constructing a lined open channel along the whole of its rear boundary. It is a concrete channel and approximately 12 to 18 inches deep. In dealing with drainage, Mr Alexander said that he would rather pick up a big sheet of water at the back of the property before it gained too much momentum. The water from Lots 80, 81 and 82 runs to Lots 69, 70 and 71 in accordance with the natural slope of the land. Lot 84 in Allamanda Street does drain its water to Allamanda Street rather than to Listonia Drive and there may be others that do that also.
When asked whether there would have been an inspection of the subject land, Mr Alexander replied that there would have been inspections of the sales in the area but that it is not the practice to enter sites to make valuations. Inspections are carried out on the basis that he is driving by the sites all the time. Mr MacAdam suggested to Mr Alexander that a potential purchaser of land would pay less for a block of land with specific disabilities than for an otherwise identical adjoining block without those disabilities. A rough calculation of how much less he would pay would be the cost of bringing the block up to the standard of the adjoining block. Mr Alexander responded:
“No, no. No, I’m a valuer . I’m not a cost merchant. I look at sales. The sales reflect to me what people are willing to pay.
...If we go on, if somebody does a cut and fill then somebody should pay in theory, more for that block than in its original state because somebody has spent “X” amount of money, $10,000, getting the block cut. You would expect if that block was going to go on to the market, that it would be worth more than the unimproved value. To go on from there, I ‘m not saying that they would pay $10,000 more, they would pay a value more. It would be - another simple case would be if you’ve got two shops, one is in a - shall we say in a side area of the main commercial area and the same shop - the same property is in the main part of the commercial area, while the cost of the building is worth exactly the same, because it is still in the same envelope, that shop in the main area is worth more. That is the added value of that.
... So, cost and value are not the same. If they were, we would have accountants doing valuations.” (transcript page 49)
Based on the natural slope of the land, Mr Alexander said that the subject land would get overground flow from Lots 82, 83 and 84 on Allamanda Crescent and from Lot 68. The water would flow from the south east to the north east from Lot 82 over the subject land. In Mr Alexander’s opinion, the water from the eastern side of Lot 82 would flow over the subject land in a sheet flow. In giving that evidence, Mr Alexander referred to the contours shown in map 2 (part of Exhibit A).
In Mr Alexander’s opinion, the cut to Lot 70 has made no difference to the value of the subject land. This is so because the soil is predominantly a shale and so not susceptible to movement. He accepted that not all of the soil was shale as the subject land had been filled towards the front or northern end. Mr Alexander did not think that there would be subsidence at the site of the cut on Lot 70 as the cut is on the back, or southern, part of the site and so away from the fill towards the front. While he had not inspected the subject land, he had inspected Lot 72 Listonia Street (“Lot 72”). Despite the recent fall of some 20 inches of rain the retaining wall on Lot 70 was still standing and he would not be worried. In contrast, he would be worried about the earthworks on Lot 72.
Mr Alexander noted in his report that his valuation was based on three sales described in his report and compared with the subject land (Exhibit 2). That information is summarised in the following table:
| Property | Lot 72, Listonia Drive | Lot 45, Listonia Drive | Lot 58 Harpulia Place | The subject land |
| Zoning | Special residential | Special residential | Special residential | Special residential |
| Area | 1256m2 | 1717m2 | 1690m2 | 1253m2 |
| Services | Town water, electricity, telephone and sewerage | Town water, electricity, telephone and sewerage | Town water, electricity, telephone and sewerage | Town water, electricity, telephone and sewerage |
| Access | Bitumen sealed road | Bitumen sealed road | Bitumen sealed road | Bitumen sealed road |
| Nature of land | About 2 metres above road, rising to rear fall to east | Falls steeply below road to the middle of block, then a slight fall to rear | About 1 1/2 to 2 metres above road with a cross fall to the north | About 1 1/2 metres above road level and rises to rear. Well elevated |
| Comparison with subject land | Similar area, elevation and slope - mirror reverse of the subject | Larger in size but inferior in elevation | Larger in size, higher in elevation but inferior in location | - |
| Improvements and value | Clearing $1,000 | Clearing $1,000 | Clearing $1,000 | Clearing $1,000 Fill $8,000 |
| Date of sale | 17/02/93 | 19/07/94 | 10/05/94 | 18/11/91 |
| Sale price | $73,500 | $79,000 | $65,000 | $65,000 |
| Analysed value | $72,500 | $78,000 | $64,000 | $56,000 |
| Unimproved value | $61,000 | $64,000 | $60,000 | $52,000 |
| Valuer’s overall comparison with subject land | Sale slightly superior | Sale is superior | Sale is superior | - |
Mr Alexander said that Lot 72 has water “gushing over it” (transcript page 57). The value of $61,000 was attributed in the original valuation. There were no notations in the file seen by Mr Alexander to indicate that Lot 72 had specific disabilities that were taken into account.
CONSIDERATION
On the basis of Mr Gilliland’s uncontradicted evidence, I find that, before the house was built on Lot 82, the water from that lot flowed across the subject land from Lots 82, 83 and 84 according to the natural contours of the land. The water did not cause any drainage difficulties for the subject land and flowed in broad sheets across the land.
Drainage difficulties only occurred once the house was built on Lot 82 and the black and white pipes installed. On this point, I prefer Mr Gilliland’s evidence, based as it is on actual experience, to that of Mr Alexander. Mr Alexander’s evidence was that it is easier to pick up the water before it gathered momentum. Mr Dunn submitted on the basis of this evidence that directing the flow of water to a point as has occurred on Lot 82 is not necessarily a disadvantage in draining an unimproved block of land as a specific flow can be directed along a particular course. While Mr Dunn may well be correct in other circumstances, Mr Gilliland’s experience has been that direction of the water by means of the black and white pipes has been a disadvantage to him. I find that the black and white pipes have altered the natural flow of water from Lot 82 and across, among others, the subject land. That natural flow, I find, has also been altered by the barrier constructed along the eastern boundary of Lot 70 to direct the flow of water back to the subject land. I also accept Mr Gilliland’s evidence that, after the house had been built on Lot 82, all of the water falling on its roof was drained to the white pipe located approximately 8 metres from the south western corner of the subject land. Other water from another area of Lot 82 was directed to a point just above the south western corner of the subject land by means of a black pipe. I do not have sufficient evidence to find from which area of Lot 82 water was drained by means of the black pipe..
Based on the evidence of Mr Gilliland, I find that the owner of Lot 70 has built a barrier across the back and down the eastern side of his or her property. The purpose of that barrier is to direct the flow of water from more elevated properties away from Lot 70. The effect of the barrier is to change what would otherwise be the natural flow of a portion of the water from Lot 82 and back on to Lot 69.
Does this mean that the subject land is suffering from a specific disability? As Mr Alexander said, the water from Lots 80, 81 and 82 on Allamanda Crescent cannot drain up hill to that street. The water must drain down the natural contours of the land to the Lots, including the subject land, on Listonia Drive. I am satisfied, however, that the natural flow of the water has been altered by means of the black and white pipes and that is a specific disability suffered by the subject land over and above the natural disability from which land must suffer by virtue of its being down hill from other land. That specific disability is not diminished by the fact that another block of land, Lot 71, experiences a similar directed flow of water from pipes located in the north western corner of Lot 81. On the evidence, Lot 71 and the subject land are the only two properties in the area affected by such pipes.
There is no evidence that the sales relied upon by Mr Alexander were of land subject to specific disabilities although all had some slope and so would experience the natural flow of water across them. Consequently, those sales do not guide me in assessing the allowance I should make for the specific disability suffered by the subject land. Mr MacAdam submitted that I should allow the sum of $8,000 being approximately 80% of the amount spent by Mr and Mrs Gilliland on drainage other than the costs of draining the roof water and drain 3. While I have no doubt that these costs were incurred by Mr and Mrs Gilliland, it is another question whether the appropriate approach is to deduct the actual costs they have occurred, or even a percentage of them. On the basis of the minutes of the meeting of the Works Committee held on 14 December, 1993, I find that a cheaper (even if not as aesthetically pleasing) effective way of managing the flow of water would be by means of lined open channels (see paragraph 13 above). They were estimated to cost $5,000. That seems to me to be a more appropriate figure to allow for the
specific disability. I have decided not to reduce it to allow for the flow of water that would naturally flow from, among others, Lot 82 on to the subject land for I have already found that no specific drainage was needed to cope with the natural flow of water across the subject land.
Turning to the question of the removal of support of the subject land, I find that the cut on Lot 70 is of great concern to Mr and Mrs Gilliland. The manner in which the cut was first made was of great concern as, on the evidence available, it appears not to have been made with the proper authorisation. Since the cut was first made, I find on the basis of Mr Gilliland’s evidence that rocks and boulders have been added to stabilise the work and the work has been approved. Although Mr and Mrs Gilliland’s concern is understandable, there is no evidence on which I can find that there is in reality any danger of any subsidence on the western boundary of the subject land because of the cut on Lot 70. Mr Alexander’s evidence is to the contrary and the Council’s requirements have been fulfilled. I have concluded, therefore, that no adjustments should be made to the unimproved value of the land because of angles of support on the western boundary of the subject land.
For the reasons I have given, I
1. Allow the appeal;
2. Set aside the determination of the Chief Executive dated 19 June, 1995 that with effect from 30 June, 1995, the unimproved value of the land described as Lot 69 on Registered Plan 813374, Parish of Bunya. County of Stanley and containing 1,253 square metres is $52,000; and
3. determine that, with effect from 30 June, 1995, the unimproved value of the land described as Lot 69 on Registered Plan 813374, Parish of Bunya, County of Stanley and containing 1,253 square metres is $47,000.
MEMBER OF THE LAND COURT
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