Howlett v Chief Executive, Department of Natural Resources
[1997] QLC 199
•12 December 1997
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BRISBANE
12 December 1997
Re: Appeal against Annual Valuation
Valuation of Land Act 1944
Valuation Roll No 24508
Local Government: Gold Coast - Albert
(AV97-120).
Leslie N and Elizabeth A Howlett
v.
Chief Executive, Department of Natural Resources
(Hearing at Coolangatta)
D E C I S I O N
Background:
This matter relates to a parcel at 36-38 Fadauk Drive, Nerang, Gold Coast, and described as Lot 632 on RP 226068. The parcel has an area of 1.3 hectares and is located in an established residential area west of Nerang, known as "Clearwater Estate". The subject is located among Residential A lots, and also among acreage lots fronting the Nerang River. The key issues are the comparison of sales, the nature of the land, and the date of the valuations. The subject is zoned as "Park Residential" under the Town Plan of the Gold Coast - Albert City Council of 24 February 1995, and effective at the date of valuation of 1 October 1996.
The subject has access to Fadauk Drive which is two-lane bitumen sealed with concrete kerbing and channelling. Reticulated water, electricity, and telephone are available. The subject is located 5.5 kms south-west of the Nerang Shopping Centre. The land rises gently for 16 metres from the road frontage to the building site, which was formed by cutting the top off a ridge passing across the subject. The land then falls at a reasonable grade towards a change of grade at about 35 metres. The land then falls at about 20 degrees into a gully across the parcel, rising again steeply towards the rear boundary. The subject is fan-shaped, varying from an approximate 8 metre frontage to about 110 metres at the rear. The site is used as a single unit dwelling. The rear area near the gully is uncleared.
The Chief Executive, Department of Natural Resources, on 10 March 1997, issued a valuation at $104,000. Following an objection the Chief Executive confirmed the valuation at $104,000 on 10 June 1997. The appellants have now appealed that figure, claiming the valuation should more properly be $77,000.
Mr LN Howlett appeared and gave evidence for the appellants. Mr P Grennan appeared for the respondent, calling evidence from Mr AB Van Hees, the registered Departmental valuer now responsible for the valuation. Mr Van Hees did not undertake the original valuation, but has subsequently re-assessed the determination and agrees with its quantum.
Evidence:
To support his case Mr Howlett provided a valuation report prepared by Mr PG Corbett, a Registered Valuer in the employ of Corbetts Valuers on the Gold Coast. Unfortunately Mr Howlett was not aware of the advisability of having Mr Corbett appear to defend his valuation, and had therefore not asked Mr Corbett to attend. It was noted that Mr Corbett had dated his valuation at 19 June 1997, and in view of his non-appearance, it was not possible to ascertain his purpose or logic in determining his valuation. However Mr Howlett confirmed that in briefing Mr Corbett he had indicated that the valuation may be used in Court to appeal a valuation.
Mr Corbett based his determination upon a comparison of the following vacant lots:
•Sale 1 - (Lot 640 Gershwin Court - Lot 640 on RP 224333)
This is a 1.33 hectare site of higher elevation, with views towards the coast. It is seen as superior to the subject.
The sale sold in June 1996 for $165,000, and is considered to have an unimproved value of $165,000.
•Sale 2 - (62 Koola Drive - Lot 5 on RP 818986)
This is a 4591 square metre site, fronting the Nerang River, cleared and relatively level. The sale is far superior to the subject, and sold in February 1997, for $155,000, and is considered to have an unimproved value of $175,000.
•Sale 3 - (18 Birdlife Court - Lot 7 on RP 884377)
This is a 4,000 square metre site, in a new rural residential subdivision. The sale is mostly cleared and is seen as superior to the subject.
The sale sold in June 1996 for $85,000, and is considered to have an unimproved value of $86,000.
•Sale 4 - (61 Birdlife Court - Lot 5 on RP 862078)
This is a 5,000 square metre site in a new rural residential subdivision. The sale is mostly cleared and is seen as superior.
The sale sold in January 1997 for $115,000, and is considered to have an unimproved value of $95,000.
•Sale 5 - (74 Birdlife Court - Lot 8 on RP 862078)
This is a 5,221 square metre site in a new rural residential subdivision. The sale has views of the Surfers Paradise skyline and is high and seen as far superior to the subject. The sale was transacted in Singapore. The sale sold in June 1996 for $136,950, and is seen to have an unimproved value of $94,000.
•Sale 6 - (9 Arjuna Way - Lot 43 on RP 94714)
This is a 9586 square metre site, located in a well accepted rural residential locality north of Nerang. The sale has more usable areas and is superior to the subject.
The sale sold in July 1996 for $185,000, and is seen to have an unimproved value of $86,000.
Based upon his analysis of those parcels, Mr Corbett estimated the unimproved value of the subject at $77,000. This aligns exactly with the previous value of the subject in the 1 January 1996 valuation.
In support of his valuation Mr Van Hees provided the following sales of vacant land:•Sale 1 - (36-38 Gershwin Court - Lot 640 on RP 224333)
This is a 1.33 hectare site with power and telephone available. Access is available to Gershwin Court which is dual laned and bitumen sealed with concrete kerbing and channelling. The sale is irregular shaped, falls below street level, then has a medium rise to the south-western corner, with a crossfall from south-west to north-east. The sale is zoned as Rural, and from the higher area at the rear there are views of the Surfers Paradise high-rise buildings. Overall, the sale is seen as superior due to its views, although the subject is seen as having better access to its building platform.
The sale sold in June 1996 for $165,000, which after allowing for improvements was analysed at $163,300, and applied at $127,000.
•Sale 2 - (35 Merloo Drive - Lot 102 on RP 193527)
This is a 1,240 square metre site with all services available, including water, sewerage, electricity and telephone. The sale is below street level, with a medium fall to the rear, is of medium elevation, well-drained and rectangular in shape. The sale backs onto parkland. The sale is seen as inferior in topography and area, and is seen as overall inferior to the subject.
The sale sold in May 1996 for $80,000 which after allowing for improvements provided an analysed unimproved value of $78,900 and an applied value of $70,000.
•Sale 3 - (61 Birdlife Court - Lot 5 on RP 862078).
This is the same as Mr Corbett's Sale 4. The sale is irregular in shape, above street level to a depth of 40 metres, falling towards the street, then with a medium fall to the rear. Services are available except sewerage, and fill is required to develop a good building site. The sale has comparable topography and views, with a superior street frontage. Overall the same is seen as inferior to the subject.
The sale sold in July 1996 for $115,000, which after allowing for improvements provided an analysed value of $108,800 and an applied value of $95,000.
In comparing the sales to the subject, Mr Howlett claims that the sales in Birdlife Park are more usable, with more recent upmarket fixtures and construction. He is a lawn and garden contractor who has personal experience of maintaining properties in that area. He claims that Birdlife Court and Koala Drive are easier to mow and maintain. In his words those areas are more "tractable" for ride-on mowers. He provided photographs of the Birdlife Court area to support his opinions. He also claims that Lot 640 in Gershwin Court is about 70 metres higher than the subject, and is therefore considerably superior. From his personal observations, and contacts with the Council, he is strongly of the opinion that the market for residential sites in this area has been static over the last year to October 1996.
Both parties were familiar with Lot 640 Gershwin Court, and agree there is now a newly-erected timber high-set dwelling upon the sale. There was some confusion in respect of the actual location of that dwelling, but that was not a major impact upon the valuation. It was agreed that a long concrete access driveway had been constructed to the new dwelling, thus adding to the total cost of access to the dwelling. Mr Howlett feels that the difference between the unimproved value of Mr Van Hees' Sale 1 ($127,000), and Mr Howlett's estimate of $77,000 for the subject, is supported by the comparison of sales by both valuers who see the sale as superior to the subject.
Both parties agree that the key sale is Lot 640 Gershwin Court. The difference in the analysis of that comparison is the major difference between the parties. Unfortunately, it was not possible to cross-examine Mr Corbett in respect of how he achieved his value for the subject at $77,000 from that comparison.
Decision:
I turn first to the comparison of sales of vacant lots, and note that the key sale for both Mr Corbett (Sale 1) and Mr Van Hees (Sale 1) is a common sale of Lot 640 Gershwin Court. I note also that Mr Corbett's Sale 4 and Mr Van Hees's Sale 3 is also common. In respect of Mr Corbett's Sale 2 it has a frontage to Nerang River, and as such I believe offers no real test of comparison with a dry lot such as the subject. In respect of Mr Corbett's Sale 5, I note it was sold to an overseas buyer who perhaps may have not been fully aware of the local market. I note also that Mr Corbett's Sales 2 and 4 occurred after the relevant date of valuation at 1 October 1996, and may be discounted accordingly. Without access to Mr Corbett, I find some difficulty in understanding how he sought to apply an unimproved value of $86,000 from a sale at $185,000.
In the end I find the key starting point is Lot 640 Gershwin Court. I note that Mr Corbett would appear to have confused his unimproved value with the sale price at the $165,000. I note also that Mr Van Hees has applied a conservative figure of $127,000. I accept Mr Van Hees's estimate. In comparing the sale at 61 Birdlife Court, I note that both valuers agree that it has an unimproved value of $95,000, although Mr Corbett sees it as superior while Mr Van Hees sees it as inferior. I note also that the sale is less than half the area of the subject, and does not have sewerage available. In the absence of further clarification from Mr Corbett I will accept Mr Van Hees's comparison that the sale is inferior to the subject. Mr Van Hees has assessed the subject as falling between $127,000 (Sale 1) and $95,000 (Sale 3). On balance I believe his value at $104,000 is not inappropriate.
In adopting a comparison with sales of vacant land, I note that is the preferred method of assessing unimproved value. This has been upheld in many jurisdictions, and was perhaps best clarified in PH Clough v. The Valuer-General (1981-82)(LAC) 8 QLCR 70, where the Land Appeal Court said at page 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. "
That was also upheld in WM and TJ Fischer v. The Valuer-General (1983) 9 QLCR 44, and also again in R and MM Barnwell v. The Valuer-General (1990-91)(LAC) 13 QLCR 13.
In respect of the nature of the land I note that it is agreed that the steepness of the rear portion of the subject near the gully would severely inhibit the erection of a dwelling with better views towards the cost. I believe any relative difference between the parties in the matter of the slope of the land is really merely a matter of interpretation. Both parties accept that the land has a good building site on top of the existing benched ridge and that it falls steeply towards the rear. I do not believe any such difference in understanding of the nature of the land would impact their appreciation of its potential.
In the matter of the dates of sales of some of the comparative sales of Mr Corbett, I note the decision of the Land Appeal Court in RG McMurray v. The Valuer-General (1983)(LAC) 9 QLCR 35, which said at page 36:"As is stated in the decision handed down by the learned President, the Land Court, and on appeal the Land Appeal Court, can only consider the primary production activities carried on on the land between the date of the valuation (31st March 1980) and the date of issue of the valuation (12th February 1981). "
That was also followed in KP and RD Weisenberger v. The Valuer-General (1978) 5 QLCR 125, and again in ES and MP Stelet v. The Valuer-General (AV90-8/9), 28 August 1990 unreported. Based upon those precedents I am bound to reject the evidence of Sales 2 and 4 as not relevant to the valuation at 1 October 1996.
Considering all the relevant residence, I find that Mr Howlett has not demonstrated that Mr Van Hees has applied a wrong principle or has made an error of fact. In that matter I note the findings of the High Court of Australia in Brisbane City Council v. The Valuer-General (1977-78) H.C. 140 CLR 41, where Gibbs J. said 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 that case, section 13(7) related to the onus of proof upon the appellant.
I note also that in accordance with section 45(4) of the Valuation of Land Act, the onus is upon the appellants to prove the grounds of their appeal:"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. "
In the absence of such proof I am therefore bound by section 33 of the Act which says:
"33. 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. "
Conclusion:
After having considered all of the evidence, I am not convinced that the appellants have proved their case. The appeal is dismissed and the unimproved value of Lot 632 on RP 226068 as determined by the Chief Executive, Department of Natural Resources, in the sum of one hundred and four thousand dollars is affirmed.
(NG Divett)
Member of the Land Court
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