Howden v Department of Natural Resources and Mines
[2005] QLC 27
•27 May 2005
LAND COURT OF QUEENSLAND
CITATION: Howden v Department of Natural Resources and Mines [2005] QLC 0027 PARTIES: Patrick F Howden
(applicant)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO.: AV2003/0134 DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under Valuation of Land Act 1944 DELIVERED ON: 27 May 2005 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Dr NG Divett ORDER: The appeal is upheld, and the valuation as determined by the Chief Executive is set aside, and the unimproved value of Lot 712 on SP 115519 is determined at Three Thousand Six Hundred Dollars ($3,600.00). CATCHWORDS: Evidence – expert evidence – failure to lead evidence.
Evidence – burden of proof – no case to answer – election not to provide evidence.APPEARANCES: Dr PF Howden appeared on his own behalf
Mr G Dudek appeared for the respondent
Background:
This matter relates to land at 3 – 5 Con Street, Macleay Island, Parish of Russell, and described as Lot 712 on SP 115519. The subject land has an area of 1,224 square metres, and is located approximately 1.5 kilometres north-west of the water taxi and vehicular jetty terminal, and less than 1 kilometre south-west of the Macleay Island post office. Access to Con Street was described in a previous decision of this Court on this property in AV97/247, 17 October 1997, unreported, and I will not repeat those findings. However I note that at that time (1 October 1996), part of the subject land (Lot 72) was zoned as Residential A, and part (Lot 71) was zoned as Draining Problem Land under the Town Planning Scheme of the Redland Shire Council of 20 February 1988. There was no evidence of any changes to that zoning, and the effective date of valuation in the current matter is 1 October 2002. The key issues are the nature of the land, sales evidence, the onus of proof and whether there is a case to be answered.
On 28 February 2003 the Chief Executive issued a valuation of the subject land at $5,000. Following an objection the Chief Executive confirmed that unimproved value on 17 June 2003. The appellant has now appealed claiming the unimproved value should be $3,600.
Dr Patrick Ffyske Howden appeared and gave evidence on his own behalf. Mr G Dudek, the departmental registered valuer responsible for determining the valuation, appeared for the respondent. Mr Dudek advised the Court that on instructions from the Chief Executive the respondent would not provide any evidence in this matter. The Chief Executive believes that the appellant has not proved his case, and as there is no case to answer the onus of proof rests upon the appellant. Mr Dudek confirms that he was aware of any possible implications to the respondent's case by not providing any submissions to support his valuation.
Dr Howden confirms that, while the court notice of 14 December 2004 had indicated that any evidence to be provided should be made available for the Court by both parties, he had not received any technical report within 14 days as directed in the court order of 8 September 2004. Mr Dudek confirms that the respondent did not intend to provide a valuation report as advised above. There was a court supervised preliminary conference on this matter on 15 October 2003.
Dr Howden explains that he is a physicist with expertise in mathematics and logic. He agrees that he has no expertise in valuation matters.
History of the matter –
Following the previous Court decision in AV97/247, because of his lack of understanding of the extended periods involved in the valuation determinations, and subsequent objections and appeal processes, Dr Howden had incorrectly assumed that the previous court ruling had sustained his appeal. He notes that while the unimproved value at 1 October 1996 had been determined at $8,000, the later valuation now appealed against had been reduced by the department to $5,000 at 1 October 2002. Dr Howden saw that reduction as justification of his earlier appeal, however that earlier decision had been found in favour of the department.
While not providing any counter-evidence to support the current unimproved value of $5,000, Mr Dudek advises that while market levels on the Island had supported a decline in unimproved values since 1996, subsequent increases have indicated a rising market.
In explaining the pattern of unimproved values of the subject land over recent years, Dr Howden provides evidence of the Chief Executive's advices as follows:
Date of Valuation Unimproved Value
1 October 1996 $8,000
1 October 1997 $4,000
1 October 1999 $3,600
1 October 2001 $3,600
1 October 2002 $5,000
There was no revaluation in 2000.
Dr Howden argues that he believes that the Chief Executive was not fully aware of several factors now impacting the subject lands as discussed later. On that basis Dr Howden argues that the unimproved value should not have increased beyond the previous value of $3,600 in 2001.
In explaining the difference in the description of the subject land, compared to the previous decision, Dr Howden advises that he had amalgamated the two previous separate Lots 71 and 72 into one single parcel (Lot 712), as a strategy in seeking to prevent the Redland Shire Council (the Council) from resuming part of his land. That occurred in 1998, and it is noted that all subsequent valuations have been for a single parcel (Lot 712).
In explaining his reason for appealing the current unimproved value of $5,000, Dr Howden agrees that he is aware that the Council has set an unimproved value of $76,000 for the minimum rate indebtedness in the Shire. As such, he agrees that any reduction he might achieve in this appeal, would have no effect upon his indebtedness for rate charges to the Council. However he believes that it is important to establish the true relationship between the subject land with the surrounding properties, particularly for those with water views. He notes that there are no water views from the subject property, due to the existence of a dilapidated building immediately next door on Lot 13.
Nature of the land –
Dr Howden argues that while the access road has been improved in recent times, at the relevant date of October 2002 it was "extremely dubious", with no effective drainage. The fact that there are no utility services connected to the subject land is apparently the decision of the appellant, who relies entirely upon self-sufficient, sustainable practices for disposal purposes.
A matter which Dr Howden now argues was not previously explored in the appeal in AV97/247, is the potential risk of damage from serious bush fires which occur in that inland part of the Island removed from the waterfront. Dr Howden provides photographic evidence of a "violent bushfire" around the subject land on 6 August 2002 (Exhibit 2). He notes that because of the nature of the flammable vegetation of melaleuca forest in that area, that fire came within a few metres of his property, and demonstrates that is not a problem existing on other lands near the waterfront. He notes that there have been three dangerous fires in that area over the years. To support the potential hazardous nature of such fires he draws attention to damage to a sewerage treatment plant on North Stradbroke Island (Exhibit 4).
A further matter of concern for Dr Howden is also the future planned construction of a major sewerage treatment plant in the area just to the north of the subject land. Dr Howden provides a copy of part of correspondence with a local councillor of the Shire, noting his concerns in August 2003, and confirming that if the sewerage system is required, as a result of further consultation, any future development works would substantially be relocated from the wetlands near to the subject lands, to more open farming lands on heritage farming land about 250 metres now from the subject land. However, at the date of valuation in October 2002, it appears reasonable to conclude that the selected site for the sewerage treatment plant had been within the wetlands nearest to the subject land.
To further support his concern that all of the disabilities of the subject land are not fully realised by the Chief Executive, Dr Howden provides a copy of a Southern Moreton Island Planning Study Group's proposed acquisitions, which he obtained from a council officer following his inquiries (Exhibit 2). Dr Howden argues that plan from the Council's computer shows the northern part of the subject land as designated as "drainage constrained lots to be acquired". He advises that while that study had not been formally implemented by the council, any prudent enquirer about matters affecting the land would have been aware of its existence.
Dr Howden further argues that he has been advised by an archaeological consultant of Gutteridge Haskins and Davies, consulting engineers, that petrified carbonised logs upon parts of the subject land are part of the 5,000 year old wetland habitat. He advises that he has officially been informed that "all island salt or fresh water wetlands or pseudo wetlands are now off limits to house developers" (transcript 13). However he provides no evidence of either of the above advices, other than his hearsay comments. He provides a copy of a newspaper clipping reporting the introduction of the "Southern Moreton Bay Island Development Entitlements Protection Bill 2004". That proposed legislation seeks to preserve the rights of owners to build upon their lands for a period of 10 years, before the lands could be regarded for conservation purposes. Dr Howden is not aware whether any possible resumption of his land was for either its drainage problem nature, or because of its outstanding vegetation attraction. However he notes that in either case it is a disability which must be considered.
As possible evidence to support that concern, Dr Howden notes that a parcel immediately adjoining the subject land had previously been resumed by the Council from an American company. While Dr Howden agrees that part of his land has not at this time been resumed by the Council, he argues that it is a possibility in the future. Dr Howden advises that because of the risk of fire damage, the Council has mowed that parcel of land as a fire break. As part of their maintenance program on that parcel to the north, the Council operators inadvertently caused damage to part of the northern half of the subject land.
While Dr Howden argues that the entire Island is subject to vegetation management provisions, he does not provide any documentation evidence of that statement. To support his claim that damage was inadvertently caused by Council operations on the subject land, Dr Howden provides a copy of a newspaper article confirming an "out of court" settlement of that matter (Exhibit 5). Dr Howden has some personal matters of illegal entry of his property, but those appear to perhaps be related to his professional stands on environmental issues, and are not peculiar to the subject land itself.
While he provides no evidence whether the Chief Executive has considered all of the above disabilities in the determined unimproved values, Mr Dudek challenges the reliability of some of Dr Howden's assumptions. Mr Dudek argues that there is no firm evidence that the Council is contemplating resumptions of any of the subject land, and in fact he queries whether such actions were included in Dr Howden's grounds of appeal in this matter. However grounds (e) and (g) draw specific attention to problems being encountered with the Council, of which the damage to the vegetation on the subject land is merely a further extrapolation of those problems. Mr Dudek also notes that the description of the property (Lot 12) described in paragraph [14], is different to the property description of the subject land (Lot 712). However that is clearly a technical inconsistency in describing the parcels, as the lands mentioned in paragraph [14] are the second and third lots on the western side of Con Street from Western Road. There is no doubt that the proposed acquisition plan defines the northern part of the subject land.
Mr Dudek concedes that perhaps in 1998 the subject land may have been considered as a possible resumption proposal, but he argues that he does not believe that is still current before the Council. However that would seem to be inconsistent with the well-documented public actions of the Council in respect of drainage problem lands, particularly on the offshore Islands, and as noted in the proposed "Southern Moreton Bay Island Development Entitlements Protection Bill 2004" (paragraph [15]). Mr Dudek also advises in his final address, that while he may have been aware of the proposed possible development of the sewerage treatment plant, he saw that as not very relevant. Dr Howden rejects that speculation, as he notes that effluent odours could be a significant problem.
Sales evidence –
While Dr Howden was not aware of the sales used by the respondent in determining the unimproved value, he notes that sales used on the previous appeal in 1997 reflected properties which while not far removed from the subject land, and were located nearer the water along the foreshore. He argues that those are not fair comparisons.
Dr Howden provides no substantive evidence of comparable sales of land on the Island. Dr Howden argues that while there may have been lots sold nearby, those parcels were not truly comparable to the subject land, and in fact there have been many local lots advertised unsuccessfully for months. He draws supports from his efforts to assist a neighbour to sell their land, but he provides no details of that sale. He notes that many such affected low valued lots were subsequently ceded to the Council for arrears of rate charges on those lots. Dr Howden also comments that following a local survey of residents in the area, it was estimated that about 25% of all houses remained empty for years. He argues that has a marked effect on the potential for sale. However those unsubstantiated comments provide no evidence of value in this matter.
Decision:
The onus of proof -
I turn first to the decision by the Chief Executive not to provide substantive evidence in this matter, and to rely only upon the Valuation of Land Act itself, which places the onus to prove his case upon the appellant. In that regard, in respect of a notice of appeal, s.45(4) of the Act directs:
"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 such ground shall be upon the owner."
The onus to prove his case is also influenced by s.33 of the Act, which directs that unless it is proved to the contrary, then the unimproved value of the subject land is deemed to be correct. Clearly the legislation directs that the appellant must provide his case, or else the valuation is to remain unaltered.
By electing to follow the above path, the Chief Executive is virtually arguing that, in view of the inadequacies of the appellant's grounds, then the Chief Executive has "no case to answer". Now while under common law the principles of onus probandi, or onus of proof, generally falls upon the party who substantially asserts the issue (Stroud's Judicial Dictionary, 4th edition, Sweet and Maxwell, where common law and statute law conflict, then the latter prevails (Craies on Statute Law, 7th edition by SGG Edgar, Sweet and Maxwell at p.338). In the current matter, both common law and statute law place the onus upon the appellant.
If I turn then to the situation where it is claimed that there is "no case to answer", I note that there are no reported cases of that situation within the decisions of this Court. However the general rule to apply in such circumstances is that the court should generally only proceed to deliver a judgment once the party concerned has elected not to give evidence (Alexander v Rayson (1935) All ER 185). However it has also been found that there is a discretion vested in the court whether to proceed or not to proceed without that election not to give evidence (Union Bank of Australia v Puddy (1949) VLR 242). The circumstances surrounding the role of a court in such matters are considered in Cross on Evidence, 3rd edition, para [6.16]). In the current matter this Court explained in detail to the respondent the implications of the decision to decide not to give evidence, which was fully acknowledged by Mr Dudek when he decided not to supply evidence.
I turn then to the matter of the failure to give evidence, and I find that in civil cases the role of the court was clarified in Insurance Commission v Joyce (1948) 77 CLR 39, where in the High Court, Rich J said at [1.41]:
"When circumstances are provided indicating a conclusion that the only party who can give direct evidence of the matter prefers the well of the court to the witness box, a court is entitled to be bold."
However the Court must also be conscious of the principles espoused under Jones v Dunkel & Anor (1959) 101 CLR 298. Those principles of the High Court clarify that the failure to lead evidence in appropriate circumstances may lead to an inference that the evidence would not have assisted the party's case, per Kitto J at 308. However that rule has no application if the failure is explained in evidence. (West v Government Insurance Office (NSW) 148 CLR 62, at 70). The rule also does not permit an inference that the intended evidence would in fact have been damaging to the party not tendering it, and cannot be employed to fill gaps in the evidence, or to convert conjecture into inferences. (per Menzies J at 312). Menzies J also went on to say at 312:
"(iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference."
I turn then to the current matter, adopting the above principle. In the absence of evidence from the Chief Executive, the weight of evidence provided by Dr Howden tends to attract weighting not contested by evidence from the respondent department. While the onus of proof continues to lie with the appellant in this matter, any inferences which may arise from Dr Howden's evidence could thus be seen as issues perhaps not previously considered in the valuation by the Chief Executive.
It is now clear that this court is not to be an investigating body of its own volition. That was found in JL and I Qualischefski & Ors v Valuer-General (1979) 6 QLCR 167, where in considering the reasonableness of allowances made by the Valuer-General, the Land Appeal Court said at 172:
"The reasonableness of the allowances that have been made is always open to challenge on objection or appeal. However upon appeal a statutory onus of proof is cast upon the appellant and he has to accept, within the confines of the grounds set out in his Notice of Appeal to the Land Court, the burden of proving the Valuer-General incorrect. Neither this court nor the Land Court in the subject jurisdiction may assume the role of an investigating tribunal requiring the Valuer-General to substantiate his case. This is in contradiction to jurisdiction conferred under the Land Act."
That was later upheld in BT Dillon v Valuer-General (1986-87) 11 QLCR 231, where the Land Appeal Court found the appellant (Dillon) had not discharged his responsibility under the Act to prove his case. The Land Appeal Court went on to say at 233:
"The Legislature has not given this Court any investigatory powers under the Valuation of Land Act. If the Appellant's case is not strong enough in its own right to establish the values contended for or to disprove the Valuer-General's values, the Court is not empowered of its own volition to probe the fairness or correctness of the Valuer-General's values and by this means arrive at its own estimate of value."
The evidence supplied -
I turn then to Dr Howden's understanding that any alteration that may occur to the unimproved value of the subject land, would have no impact upon the level of indebtedness of rating due to the Council. I agree with that conclusion, and note that was upheld by the Land Appeal Court in Poole Island Holdings Pty Ltd v Chief Executive, Department of Natural Resources (RV98-913) 25 June 2001, unreported at para 93):
"The jurisdiction of this Court on appeal and the Land Court at first instance does not extend to a consideration of such matters as rates or rent, but is confined to valuations made under the Valuation of Land Act 1944. That was made clear by the Land Appeal Court in NR and PG Tow v Valuer-General (1978) 5 QLCR 378, where the Land Appeal Court said at 381:
'The Valuer General and the Court are concerned with finding unimproved value and not with the amount of rates that may be levied as a result. Rates are fixed by local authorities and may be varied annually according to the fiscal requirements of the Local Authority concerned. Any such variation may be made at any time during a valuation period and may be entirely independent of a new and increased valuation.'"
However if I turn then to Dr Howden's evidence in respect of a serious risk of bushfires at the subject land, I note that both the public statement of the Mayor of the Council (Exhibit 4), and the newspaper articles of suggestions of the need to reduce fire risk by the slashing of the lands adjoining the subject land (Exhibit 5), would indicate that fires were a potential hazard in that location, more removed from the waterfront. I have no evidence from the respondent that those issues had been considered, so that any increased risk of fire on the subject land could be inferred. A similar inference could also be made in respect of any possible future impact of a future sewerage treatment plant, close by to the north of the subject land. It would be fair to note that generally people do not like to live next to a sewerage treatment plant.
I then consider the potential impact of knowledge of any possible resumption actions by the Council as noted in paragraph [14]. Now Mr Dudek may be correct in his assumptions that there is no registered proposal to acquire parts of those wetland areas to the north of the subject land. The fact that Dr Howden believes that the Council had some future plan for that purpose are demonstrated by his decision to amalgamate the two former lots into a single Lot 712. In the event of such a move by the Council he is now aware that such an amalgamation would not prevent such a resumption, as the Council could exercise its authority to resume only part of that parcel, with a consequential subdivisional procedure. Should that occur, any compensation agreed, or settled by this Court, would reflect the value of any land resumed at that time, and that would then not be a matter for consideration in the current valuation.
However, what could be considered in the current matter, is what would be the impact upon a prudent purchaser becoming aware of such a risk to the land. Now in deciding such a scenario, I am reminded that the market value of any parcel was defined by the High Court in Spencer v The Commonwealth of Australia (1907) 5 CLR 418, where Isaacs J said at 441:
"To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property."
Now it could be assumed that a prudent buyer seeking to inform himself of matters likely to impact the value of the subject land, would have made the same inquiries as Dr Howden. To then be advised that some possible resumptions for wetland purposes might occur in the future, a prudent buyer would consider any "risk" that might be associated with such a resumption. He could assume that should resumption proceed, then he could reasonably be compensated for his loss, and then continue to purchase the subject land.
However if he was fully informed of similar types of resumption actions, he might consider concerns about the level of compensation that might be offered, without the need for further legal action before this Court. That was widely publicised in the matter of MT Atkin v Redland Shire Council, A2002/0845, 23 July 2004, unreported. Evidence of possible concerns about drainage problems was earlier addressed in the Redland Shire Council Planning Scheme 1998, where the Council addressed the problem of "drainage problem areas". Now without any evidence from the Chief Executive on those matters, I could draw the inference that such possible implications for a prudent buyer had not been considered. Without any evidence of sales in the market place on the Island, I have no idea how the Chief Executive concluded his valuations for the relevant period.
Summary –
In summarising this matter I am aware of the decision of the High Court in Brisbane City Council v The Valuer-General (1977-78) 140 CLR 41, and also 5 CLR 283, where Gibbs J found at 303:
"The question then is whether a court on appeal is bound to accept the Valuer-General's figure as correct unless it is positively established that the true value is lower, or whether it is enough to show that the value was reached as a result of an error in principle. 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."
(Section 13(7) as it then was, is now s.33).Without any evidence to suggest otherwise, I am left with the inference that the Chief Executive may have not been fully aware of the potential 'risks' to the subject land in either possible activities by the Council connected with bushfires, sewerage treatment plants or resumptions for wetlands or drainage problem purposes. On balance I must give that uncertainty in favour of the appellant in this matter (Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Limited & Ors (1946-47) 74 CLR 358, at 374). On that basis I accept the appellant's estimate of the unimproved value of the subject land at $3,600.
Conclusion:
Having considered the evidence of the appellant, and in the absence of any evidence from the respondent, I find that the appellant has demonstrated that the Chief Executive may not have been fully informed of all the disabilities of the subject land. The appeal is upheld, and the valuation as determined by the Chief Executive is set aside, and the unimproved value of Lot 712 on SP 115519 is determined at Three Thousand Six Hundred Dollars ($3,600.00).
NG DIVETT
MEMBER OF THE LAND COURT
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