Hoppitt v Chief Executive, Department of Natural Resources and Mines
[2001] QLC 57
•22 June 2001
LAND COURT BRISBANE 22 June 2001
[2001] QLC 57
Re:Appeal against Annual Valuation Valuation of Land Act 1944 Property ID No: 1243045 Local Government: BCC-Enoggera (AV00-68)
Frederick C and Gloria M Hoppitt v.
Chief Executive, Department of Natural Resources and Mines
D E C I S I O N
Background:
This matter relates to land at the corner of Taylors Road and Lucy Street, Gaythorne, and described as Lots 229 and 230 on RP 20235, Parish of Enoggera. The subject land has an area of 835 m² and is zoned Residential A under the Town Plan of the Brisbane City Council (the “Council”), of 13 June 1987, effective at the date of valuation of 1 October 1999. Both Taylors Road and Lucy Street are bitumen sealed with concrete kerbing and channelling, and all normal utility services are available. The key issues are the nature of the land, relativity, the impacted noise and fumes and comparison of sales.
On 27 March 2000, the Chief Executive issued a valuation of the subject land at $80,000. Following an objection the Chief Executive confirmed that figure on 13 June 2000. The appellants have now appealed claiming the unimproved value should more properly be $64,000.
Frederick C Hoppitt appeared and gave evidence for the appellants. Mr J O’Rourke, Principal Legal Officer, appeared for the respondent calling evidence from Edward Antoni, the departmental registered valuer responsible for determining the valuation.
The Evidence:
The Nature of the Land -
The subject land comprises two adjoining parcels with frontages of 24.38 metres to Taylors Road and 32.31 metres to Lucy Street. The land falls about 3.5 metres along Lucy Street from east to west, and about 1 metre along Taylors Roads from north-east to south-west. Lucy Street joins Taylors Roads at an angle of about
65 degrees. Mr Antoni supplied a topographical map (bimap) to support those figures. The subject land is conveniently located within one and a half kilometres of shopping centres, trade centres, schools and the Australian Catholic University and railway stations.
Taylors Road rises from the Lucy Street intersection towards the north-east; and to the south-west of the subject land, Taylors Road rises again towards the south- west, and the entrance gate to the Enoggera Army Camp. Lucy Street rises about four metres to the east to a ridge line, then falls away towards Gaythorne Road. The subject land is therefore a generally west sloping parcel, with views to the distant Taylor Range extending in a 90 degree arc to the north and west.
The Impact of Traffic -
Mr Hoppitt argues that the corner location of the subject land is a disability, occasioned by traffic movements generally between Taylors Road and Lucy Street. Because of that road intersection towards the low spot in Taylors Road, vehicles turning from Lucy Street into Taylors Road are required to accelerate up the slope from that point. As a consequent of the restricted sight lines at the intersection, because of the obtrusive angle of Lucy Street, vehicles tend to break to a halt, and then accelerate around the corner.
The major problem then occurs with the noise and diesel fumes from Council buses making those turns. There is also a similar disturbance with buses moving from the city in the reverse direction. At night the headlights of turning cars also sweep the full width of the subject land causing an additional disturbance. Mr Hoppitt sees those impacts, together with the more public exposure to personal security, as disabilities arising from the corner location of the subject land.
Mr Hoppitt concedes that Taylors Road is not as busy as Samford Road and Settlement Road, which are major arterial trunk roads. However he argues that Taylors Road is a major residential feeder road which provides busy access to the Army Camp, particularly at lunch periods.
Mr Antoni agrees that fumes and noise from buses are a disability to the subject land, but he argues that the smaller number of bus trips is not seen as a major problem. Mr Antoni notes that the local bus service (Route 361) operates only during weekdays, and is restricted to nine trips each way daily between the hours of 7.45 am and 4.00 pm. Mr Antoni draws comparisons with the bus service along Samford Road (Route 360) which operates for nineteen trips in and out of the City, extending until 7 .00 pm.
Mr Antoni draws comparisons with the impact of noise and fumes on adjoining properties in Lucy Street at Lots 213 and 214, also at Lots 215 and 216. Both of those properties also suffer from the bus fumes as vehicles turn into and out of Lucy Street. However Mr Hoppitt argues that both of those properties are further removed from the road intersection, and do not experience the same impact for that reason. Mr Hoppitt also argues that Lots 3 and 4 in Lucy Street are further towards the top of the ridge, and more removed from the exhaust diesel fumes discharged at the road intersection.
Relativity -
Mr Hoppitt seeks relativity with a range of parcels in the area, noting in particular comparisons where a bulk allowance has been made for properties containing two adjoining parcels. Mr Hoppitt compares parcels on the basis of their location, area and zoning; also using a comparison of a rate per square metre basis for each lot as a check to monitor any possible inconsistencies or errors in the valuation. Mr Hoppitt notes that public advice provided by the Council in areas at Red Hill indicate that Residential B lands tend to have a loading of about 30 percent compared to Residential A lands.
Mr Hoppitt for example draws reference to Lots at 52 and 54 Gaythorne Roads (Lots 88 and 89 and Lots 86 and 87), which he notes both are Residential B lands, and both have an area of 911 m², but unimproved values of only $76,000 and $77,000 respectively. Mr Hoppitt suggests such inconsistency causes concern that relativities in the area may be incorrect.
Mr Hoppitt notes also Lots 225 and 226 at the eastern end of Lucy Street near Gaythorne Road. Each of those parcels has an area of 405 m², but each is valued respectively at $61,000 and $62,000. Mr Antoni argues that those lesser unimproved values compared to the subject land reflect the smaller frontage of Lots 225 and 226 at only 10 metres. He also notes that Lot 225 also adjoins a block of home units. Mr Hoppitt argues that Lots 225 and 226 are both zoned Residential B. Mr Antoni agrees that those Lots are zoned Residential B, but argues as both of those parcels are occupied by a single residence, then those parcels have been valued as a single family dwelling under Section 17 of the Act.
Mr Hoppitt argues that in areas of Residential B in the locality, developers are now demolishing or removing old houses and building new flats or units. This he suggests demonstrates that Residential B lands have an inherent higher value than Residential A lands similar to the subject land.
Mr Antoni seeks relativity with parcels near the subject land in Lucy Street, noting in particular parcels on the northern side of Lucy Street at Lots 213 and 214, and Lots 215 and 216. He notes both of those parcels are valued as a single parcel under Section 17 because each has one dwelling on the two parcels, similar to the subject land. Both parcels are valued at $82,000.
Mr Antoni also draws relativity with a parcel on the southern side of Lucy Street, two lots removed from the subject land (Lots 3 and 4), which has an unimproved value of $83,000. Mr Antoni notes that both Lots 215 and 216 and Lots 3 and 4 adjoin or face a block of building units, which is seen to provide less privacy than for a single residence as a neighbour. Mr Antoni argues that the difference in value to the subject land reflects the disability allowance applied to the subject land because of its corner location. He argues each of those three parcels in Lucy Street also suffer from comparable intrusions of fumes and noise as the subject land, but to a lesser degree.
In respect of relativity with the adjoining parcel to the south-west in Taylors Road (Lots 231 and 232), Mr Antoni argues that parcel is slightly lower than the subject land (about 2 metres on the bimap supplied), and has been valued accordingly at $77,000. That he argues reflects the lesser views from that parcel. In respect of parcels to the north along Taylors Road, there are parcels to the western side (Lots 64 at $75,000) and to the eastern sides (Lots 178 and 179 at $80,000). Mr Antoni argues those relative values are consistent with the subject land at $80,000, and reflect closer proximity to busy Samford Road.
Comparisons of Sale -
Mr Hoppitt is familiar with the sales provided by Mr Antoni, and provides no additional sales himself. Mr Antoni provides the following sales of vacant or lightly improved lands:
· Sale 1 – (13 Ellworthy Street, Mitchelton, Lot 261 on RP 18838). This is a 405 square metre parcel zoned Residential A and located about 60 metres from traffic lights on busy Samford Road. The sale is flat, with a 10 metre frontage, with no views, and is about half to three quarters of a metre below the carriageway in Ellworthy Street. Mr Antoni argues that Ellworthy Street provides alternative rear access for outward bound traffic to a private youth training centre to the north of Ellworthy Street in the old Mitchelton Primary School. Mr Hoppitt sees Ellworthy Street as not a busy road like Taylors Road, and therefore less impacted by noise and fumes as the subject land. Mr Antoni sees the sale as far inferior to the subject land due to its location, size, terrain and access.
The sale sold in July 1999 for $67,000, and was analysed at $66,000 and has been applied at $61,000.
· Sale 2 – (2 Kidman Place, Keperra – Lot 1 on SP 118608). This is a 600 square metre Residential A parcel located at traffic lights at the corner of Kidman Place and Settlement Road. Settlement Road is a busy connector road between The Gap and Keperra. Because of granite bolder retaining walls along Kidman Place, physical access is obtained from Settlement Road. The traffic lights are located at the main entrance off Settlement Road to the new Great Western Shopping Centre to the north-east and east of the subject land. The subject land is about two metres above the road level, and has good mountain views from the north-west to the south-west, and views across the shopping centre and the adjoining quarries to the east. Overall the sale is seen as inferior to the subject land.
The sale sold in August 1999 for $65,000, was analysed at $62,000, and was applied at $62,000.
· Sale 3 – (6 Laruma Place, Dorrington – Lot 2 on SP 116691) This is a 405 square metre Residential A parcel located two suburbs removed to the east in an agreed superior residential locality. The sale is located about 150 metres west of busy Wardell Street, is slightly above road level, and has some views towards Mt Coot-tha Forest Reserve. The sale is seen as overall superior to the subject land.
The sale sold in June 1999 for $102,000, which was analysed at $101,000, and has been applied at $91,000.
Mr Hoppitt sees Sale 3 as so superior to the subject land as to provide no real comparison. Mr Antoni agrees Sale 3 is superior, but uses that sale to demonstrate what the market will pay for a parcel only half the size of the subject land. However it would appear that the suburb of Dorrington is now gaining popularity in the marketplace as an overflow from the adjoining suburb of Ashgrove, where land prices have risen sharply in recent years.
Both parties agree that there have been no sales of vacant land in the immediate locality of Lucy Street in the last year, and the three sales supplied represented the nearest available sales evidence. The recent sale of an improved property in Lucy Street (Lot 5 on RP 894418) adjoining the subject land to the east, was noted to have sold very quickly. While not relying upon that improved late sale, Mr Antoni argues that a reasonable estimate of the added value of the old dwelling upon Lot 5 would more than support the current unimproved value of $80,000 placed upon the subject land.
Decision:
The Nature of the Land -
It is agreed that the corner location of the subject land on busy Taylors Road provides some disabilities in respect of traffic impacts. Mr Antoni has allowed for that disability by reducing the unimproved value from $82,000 to $80,000. I would agree with Mr Hoppitt that the presence of fumes from vehicles was likely to be greater at the subject land due to the nature of vehicles and movements at that position, compared to properties to the east in Lucy Street.
Relativity –
A key difference between the parties lies in understanding the possible impact of zoning upon adjoining lands. It is agreed by both parties that where otherwise comparable lands are vacant, but have different zonings for residential purposes, then there is normally some differential in value to reflect higher uses available under higher zonings. For instance, where land is zoned Residential B, the use of that land for multi-unit purposes is likely to result in a higher value for that Residential B land, compared say to Residential A land where only a single dwelling is permitted.
However the appellant would appear to be unfamiliar with the concessions allowed for existing properties under section 17 of the Act. Where lands are occupied by a single unit dwelling, section 17 relevantly provides:
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 aforesaid, that potential use is lawful when the valuation is made.
(2) In subsection (1) – ‘single dwelling house’ means -
(a)a dwelling used solely for habitation by a single household;
and
….(3) For subsection (1), land is not exclusively used for purposes of a single dwelling house or farming if -
(a)the land is divided into individual lots; and
(b)there is evidence, including advertising or actual sales, of intention to sell the individual lots.”
In respect of the properties noted as Residential B lands by Mr Hoppitt, for the purposes of the Act those lands are to be valued as if they were similar to Residential A zoning of the subject land. The relativities are therefore taken to reflect the characteristics of each parcel as single residence sites. If any of those Residential B parcels were subsequently cleared for construction of new units, then section 17 would no longer apply.
I note that in drawing comparisons Mr Hoppitt only uses a rate per square metre basis as a rough check to see if an error has occurred in the valuation. The use of a rate per square metre as the primary method of valuation was rejected by the Land Appeal Court in Hans and Else Grahn v. The Valuer-General (1992-93) 14 QLCR 327 where the Land Appeal Court said at page 330:
“The appellants fail on this point because the appropriate basis for the valuation of a residential lot is not the application of a rate per square metre but an assessment of the unimproved value of each lot as land used for single residential purposes. As the Land Appeal Court said in its decision on the appellants’ previous appeal (H and E Grahn v. The Valuer-General, AV89-246 and 247, 13 December 1990):
‘for the purpose of valuing residential sites, the preferable method of comparison is on a site to site basis and not on the basis of a unit area valued comparison. Site to site comparison should take into comparison such matters as the size of the lots, the situation of and access to the lots, the shape and topography of the lots etc. and comparisons on a unit area basis do not necessarily reflect valuation considerations for the above features.’”
If I then consider the comparisons provided I believe there is nothing to discredit the unimproved value of $80,000 for the subject land on a relativity basis.
Comparison of Sales -
In seeking comparisons with sales of vacant lands I note that Mr Antoni has followed guidance provided by Courts at all levels. That was found in WM and TJ Fischer v. The Valuer-General (1983) 9 QLCR 44, where the Land Appeal Court said at page 46:
“It is indeed a fundamental principle of valuation that the best basis for assessment of unimproved value is the use of sales of vacant or lightly improved parcels. While maintenance of correct relativity is also of considerable importance for rating or revenue type valuations, we cannot prefer in the circumstances of this case, the use of the principle of relativity to the exclusion of the sales evidence.”
That was also followed in NR and PG Tow v. The Valuer-General (1978) 5 QLCR 378 where the Land Appeal Court said at page 381:
“The whole of the valuation process must be based on this hypothesis. Courts of the highest authority have laid down that the best test of value is to be found in the sales of comparable properties, preferably unimproved, on the open market round about the relevant date of valuation and between prudent and willing, but not over-anxious parties.”
See also PH Clough v. The Valuer-General (1981-82) 8 QLCR 70, at 76. In respect of the actual comparisons adopted, I note the following:
| Sale | Area | Applied unimproved value | Comparison |
| Sale 1 | 405 m² | $61,000 | Far inferior |
| Sale 2 | 600 m² | $62,000 | Inferior |
| Sale 3 | 405 m² | $91,000 | Superior |
On those comparisons I note that relativities with surrounding parcels, and direct comparisons with sales, would tend to support Mr Antoni’s determination of the unimproved value at $80,000. I note also that under section 33 of the Act the valuation as determined by the Chief Executive is deemed to be correct unless it is proved to the contrary, and that section 45(4) of the Act places the onus upon the appellant to prove his case. That followed guidance provided by the High Court of Australia in Brisbane City Council v. The Valuer-General (1977-78) 140 CLR 41, where Gibbs J found at page 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.”
In the current matter I find the appellants have not demonstrated any error in the valuation.
Conclusion:
Having considered the whole of the evidence I am not persuaded the appellants have proved their case. The appeal is dismissed, and the unimproved value as determined by the Chief Executive for Lots 229 and 230 on RP 20235 in the sum of
$80,000 is affirmed.
NG DIVETT MEMBER OF THE LAND COURT
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