Hardwicke v Chief Executive, Department of Natural Resources

[1997] QLC 89

[1997] QLC 89

 

LAND COURT BRISBANE 12 JUNE 1997

Re:Appeal against Valuation Valuation of Land Act 1944 - Valuation Roll No:   463

Local Government:  Cambooya (V96-619)

Gordon H and Pamela Hardwicke v.

Chief Executive, Department of Natural Resources (Hearing at Toowoomba)

DECISION

Background:

This matter relates to a property located at the corner of the New England Highway and Savages Road, Hodgson Vale, which is approximately 5 km east of the town of Cambooya, and about 18 km south of the Toowoomba Post Office. The property is described as Lot 1 on RP 894483, and has an area of 3.997 ha. The subject is zoned “Rural A” under the Town Planning Scheme of the Shire of Cambooya of 26 March, 1993, and effective at the date of valuation at 1 January, 1996. The key issues include the impact of the nature of the soils, comparison of sales of comparable lands, and the dominant use of the land.

The property has good access to the New England Highway which is a dual laned bitumen sealed road. Good access is also available to Savages Road which is a formed gravel road. The current physical vehicle access is to the New England Highway. Electricity and telephone services are available.  The land falls in a gentle slope from the north-eastern corner to the south-west. The soil is mainly heavy black in the lower areas, moving to a lighter brown on the higher slopes. It was originally timbered with open coolibah forest. Under the strategic plan for the Shire of Cambooya, the land is included in the dominant land use categories of agriculture and rural.

The Chief Executive, Department of Natural Resources, on 28 May, 1996 issued a valuation for the subject at $45,000. Following an objection the Chief Executive disallowed that objection and on 15 October, 1996 confirmed the valuation at $45,000. The appellants have now appealed that decision and contend that the valuation should more properly be

$15,000.

Mr G H Hardwicke appeared and gave evidence for the appellants, and Mr B Tannock, Senior Valuer, appeared for the respondent, calling evidence from Mr Steven J Doyle, the Departmental Registered Valuer responsible for determining the valuation.

Evidence:

Mr Hardwicke outlined for the Court the history of the development of the subject, which he claims has no real value other than as a building site for his residence. He was originally the owner of Portion 52 with an area of 72.44 ha, which was used at the time of purchase as a dairy farm, and was purchased for $100,000 including cattle. Following the major electricity strikes in the State in the 1980’s, his power was cut off and he was forced to sell off all of his stock (and the dairy licence for $10,000). He used the money from the sale of stock to build a dam, and he commenced growing grain, including considerable work in contouring the land to limit the impact of water runoff. During this period he undertook the management of cattle on other properties in the area. Eventually because he could not sell the larger property, his son offered to buy the balance area, after Mr Hardwicke had surveyed off a 4 ha site as a residence for himself. He sold the 68.44 ha in 1996 to his son for $100,000.

His son is the absent owner of the balance area of Portion 52 (68.44 ha). Mr Hardwicke claims that he only uses the subject as a homesite, which had to be surveyed at a minimum of 4 ha in accordance with the Cambooya Shire requirements. The subject contains the old access to the dairy, which now provides access to his existing dwelling.

The subject has poor soils, and this has caused considerable additional foundation costs ($18,000) for his home, which is of concrete slab construction. Mr Doyle gave evidence that in his opinion a prudent owner would have selected a position for the erection of a dwelling nearer to Savages Road in the north-eastern part of the subject. He believes that location would have less unstable soils, and is also higher in elevation than the current position of the dwelling.

Mr Hardwicke contested that view as he believed that there was little difference in elevation between the two locations, in his opinion perhaps only “5 inches in 100 metres”, and he argued that the soils are similar at both locations. Mr Hardwicke also confirmed that the existing driveway from the New England Highway had also influenced his decision to build on the current site. Mr Hardwicke undertook an auger test hole in the north-east corner prior to building, which he claims confirmed his decision to build where he currently is located.

In respect of views from the site Mr Doyle believed that views were more extensive from the north-eastern corner than from the current building site. Mr Hardwicke contested that opinion claiming that the current site had similar views to the north-east corner.

Mr Hardwicke provided no direct evidence of comparable sales, but was generally familiar with the sales evidence of Mr Doyle. Mr Doyle gave evidence that he had valued the subject as a single rural homesite, and based his valuation upon the following sales of comparable land:

1. Sale 1 - (Lucks Road - Lot 1 on RP 891484)

This is an elevated vacant site, situated about 12 km south of the Toowoomba Post Office, and about 4.5 km north of the subject. Power and telephone services are available. Access is via bitumen sealed roads with 350 metres of formed gravel road. The sale has good rural views, and has moderate slopes with brown soil forest country. The sale is considered superior to the subject because of its better location, outlook and size. The sale has an area of 6.395 ha, is zoned “Rural A” and sold for $70,000 in September 1995. After allowing improvements its analysed unimproved value was determined at $64,000 and its applied value at $60,000.

II.Sale 2 - (Beauly Court - Lot 6 on RP 867918)

This is a 1.086 ha vacant site, located approximately 9 km south of the Toowoomba Post Office, and 8 km north of the subject. Power, telephone and reticulated water are available. There is a gully across the rear of the sale, which comprises gently to easy sloping brown soil county. Overall the sale is seen as superior to the subject because of its better location and services, although it is smaller.   The sale is zoned as “Rural B” and sold for

$63,000 in April 1995. After allowing for improvements its analysed unimproved value was determined at $55,000, and its applied value at $50,000.

1. Sale 3 - (Boxtree Court - Lot 14 on RP 861228)

   This is situated approximately 9 km south of the Toowoomba Post Office, and about 8 km north of the subject. Access to the sale is via bitumen sealed roads, and power and telephone services are available. The sale comprises easy sloping brown soil country, and is dissected by steep gullies in its northern parts. Overall the sale is seen as superior to the subject because of its better location, although the steep gullies detract from its land quality. The sale is zoned as “Rural B”, has an area of 2.707 ha, and sold for $65,000 in August 1995. After allowing for improvements its analysed unimproved value was determined at $61,800, and its applied value at $57,000.

Mr Doyle conceded that all 3 sales are closer to Toowoomba, and all have better soils than the subject, although each has some problems to be considered when building upon the land. Mr Hardwicke agreed that the soils on the sales are different to the subject, and challenged the relevance of the sales which he felt were some distance away. Mr Hardwicke noted that the market for land in the area is very flat, and it is inappropriate to use sales nearer Toowoomba as a guide to values in his vicinity. Mr Doyle confirmed that while the values for rural land in the area had not risen much during the last few years, there had been a rise in the value of sales of rural residential homesites.

A matter also of concern to Mr Hardwicke was the current increases in Council rates being encountered, particularly by his son on adjoining Lot 52. He seemed unaware of the impacts of s.17 of the Valuation of Land Act in respect of any concessional valuations for farming purposes. However he agreed that was not a matter for consideration in this case.

In summary, Mr Doyle confirmed that there was a paucity of comparable sales in the vicinity of the subject, but argued that there was a strong market in the Toowoomba area for rural homesites. He confirmed that in his opinion it would have been more prudent to have built the house on the higher land in the north-eastern part of the subject. He confirmed he had valued the subject as a single residential site under s.17(1), and had applied no provision for potential subdivision, which therefore had no bearing on the valuation. He provided photographs of the subject which he claims support his conclusions, and he argued that a valuation at $45,000 is reasonable.

Decision:

In the matter of the comparison of sales of comparable lands I find those offered by Mr Doyle as the only indicators of the local market. While Mr Hardwicke has contested their relevance, he has failed to supply any further evidence that would discredit their acceptance. I note that Mr Doyle has applied the well established principle of comparing the subject with sales of vacant lands as adopted in PH Clough v. The Valuer-General (1981-82) 8 QLCR 8 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.”

In comparing therefore the nature of the subject, I note that Mr Hardwicke believes that the land in the north-eastern corner of the subject rises relatively gently. Mr Doyle however argues that there is a reasonably significant rise from the current house site towards the north- eastern corner. From the photographic evidence supplied I lean more towards the view of Mr Doyle, and I believe an area in the north-eastern corner, fronting Savages Road, would have provided a higher building site. Views from either site on the subject are good.

In respect of the impact of the unstable black soils on the subject, I note that Mr Hardwicke made some effort to test the viability of the soils in the north-eastern corner, prior to selecting his existing house location. I note also that in deciding to utilise the existing driveway from the New England Highway, Mr Hardwicke had weighed that advantage against the increased costs of “building up” the house pad at $18,0000. In any case those extra costs are part of the development costs of the dwelling and not applicable to the unimproved value of the

subject.

In the matter of the use of the land I turn to s.17 of the Act: "Exclusive use for single dwelling house or farming

17.(1).

In making a valuation of the unimproved value of land exclusively used for purposes of a single dwelling house or for purposes of farming, any enhancement in that value for that the land has been subdivided by survey or has a potential use for industrial, subdivisional or any other purposes shall be disregarded irrespective of whether or not, in case of potential use as aforesaid, that potential use is lawful when the valuation is made.

(2)       In subsection (1) -

‘a single dwelling house’ means -

(a)a dwelling used solely for habitation by not more than 1 family

By his own admission Mr Hardwicke uses the subject purely as a single residence which accords with s.17(2)(a) of the Act. The highest and best use would therefore appear to align with Mr Doyle’s interpretation as a “rural residential site”.

Summary:

From the sales evidence I note that the 3 sales provided are all superior to the subject. As a rural residential site the subject provides good views to the south and west. Although there have been some problems in overcoming the unstable soils for building purposes, the site does provide privacy and open space which are features sought by purchasers of rural homesites. The distance of 19 km from Toowoomba does not preclude the subject as being attractive to residents prepared to commute. Mr Hardwicke has not established a lower benchmark level for comparison purposes, and I believe the Chief Executive’s determination at

$45,000 has not been discredited.

In determining amendments or alterations to the valuation, the onus of proof rests upon the appellants, under s.33 of the Valuation of Land Act:

“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."

In this matter I note the decision of the High Court in Brisbane City Council v. The Valuer-General (1977-78) 140 CLR 41 where Gibbs J found at p.56:

“In my opinion once it is shown that in making the valuation the Valuer-General acted upon a wrong principle, or made a serious error of fact, the presumption created by s.13(7) is rebutted.”

I believe the appellant has failed to establish that the Chief Executive has made an error or a wrong decision.

Conclusion:

After having considered the whole of the evidence I am not persuaded that the appellants have proved their case. The appeal is dismissed, and the Chief Executive’s valuation at Forty-five Thousand Dollars ($45,000) is affirmed.

DR N G DIVETT MEMBER OF THE LAND COURT