Hutton v Chief Executive, Department of Lands

[1996] QLC 91

[1996] QLC 91

 

  LAND COURT

BRISBANE

28 JUNE 1996

In the matter of an appeal against a valuation
Valuation of Land Act 1944
  Valuation Roll No.:    23610
  Local Government:    Maroochy
  (AV95-379)

Shirley L and Clement J Hutton
  v.
  Chief Executive, Department of Lands

(Hearing at Maroochydore)

D E C I S I O N

This appeal arises under the provisions of the Valuation of Land Act 1944. Pursuant to that Act the Chief Executive has placed a value of $124,000 on the subject land as at 1 January 1995. The appellants contend for a figure of $75,000.
           Mr. Clement John Hutton appeared for and gave evidence on behalf of the appellants whilst evidence on behalf of the Chief Executive was given by Mr. Damien Peter Hyde, a registered valuer in the employ of the Department of Natural Resources, which includes the former Department of Lands. 
           At the relevant date, the subject land had an area of 12.53 ha, however, according to Mr. Hutton’s evidence 1.755 ha was subdivided from the land in either August or November, 1995.  It is however, the area which existed at the relevant date of 1 January 1995 to which this appeal must refer.  No doubt, the balance area following the subdivision will be a feature of a subsequent valuation.  The subject land is situated approximately 4.5 km north of Bli Bli fronting the Yandina-Bli Bli road which provides access to the western end of the land.  This access is not currently utilised as the present house is constructed at the lower, eastern end of the block and to access the block at the Yandina-Bli Bli road end  would necessitate a long internal access road over three small creeks.  The subject land was previously a cane farm so the location of the house probably reflects that usage as other house sites with somewhat better views towards Mt. Coolum, the Maroochy River and over farming lands are available from the higher topography western part of the subject land.  Practical access to the current residence on the land is obtained  along the Dunethin Rock Road to the north of the subject, then through an adjacent Scenic and  Camping Reserve.  Alternative access to the current house site would be available along the Maroochy River esplanade which abuts the eastern end of the subject land, this access being described as a “track” as it nears the subject property.  The parties agree that access may be described as “easy and direct”.
The subject land comprises moderate to gently sloping forest ridge, merging onto level river frontage. Whilst originally used as a cane farm, the selective clearing of the land suits the current rural residential and hobby farming pursuits. Mr. Hyde, properly in my view, valued the subject land as currently used and did not add a premium to the value of the land for it being in two lots. This approach is consistent with s.17 (1) of the Valuation of Land Act which 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 as aforesaid, that potential use is lawful when the valuation is made.”

Mr. Hutton expressed concern about a buffer zone proposed to be required as a physical separation of agricultural and residential land uses.  He provided me with a document entitled  “Planning Guidelines - Separating Agricultural and Residential Land Uses - Second Draft December 1995" prepared by the Department of Primary Industries and the former Department of Housing Local Government and Planning.  This document describes how in December, 1992 the Queensland Government approved State Planning Policy 1/92 concerning the development and conservation of agricultural land, such policy to be implemented through the Local Government (Planning and Environment) Act 1990. State Planning Policy 1/92 addresses general issues and principles for the protection of agricultural land and is supported in part by a Planning Guidelines document entitled “The Identification of Good Quality Agricultural Land” released in 1993.  The document tendered by Mr. Hutton is apparently being prepared as a further support document.  The second draft has been distributed publicly and to selected organisations for comment with the final date for comments to be received being 26 April 1996.  No evidence was provided to me as to the current state of play regarding this document, however, for a number of reasons I do not find it to be relevant to determining the unimproved value of the subject land as at 1 January 1995.  First, it is to be noted that the relevant date in the instant case is 1 January 1995 and given that I have evidence of an  effective date of 30 June 1995, however, no evidence on date of issue it is quite clear that the draft planning guidelines fall outside the period of my jurisdiction (see McMurray v. The Valuer General (1983) 9 QLCR 35). Secondly, I should explain that a State Planning Policy would become relevant with respect to the subject land only were the land holder to apply for a rezoning of the land or for development approval. Given that Mr. Hyde has valued the land as currently used the State Planning Policy would have no effect on its unimproved value. Finally, there was no evidence of how the proposed planning guidelines would impact upon the utility and therefore the value of the subject land.
           Mr. Hutton also mentioned in passing, the possible impact of the Regional Open Space System (ROSS) an initiative of which I am judicially aware arose under the umbrella of the South-East Queensland regional planning arrangements referred to as “SEQ 2001".  Mr Hutton provided no evidence as to how ROSS would impact upon the subject, however, I would suggest that the impact would be irrelevant for the present purposes for the same reasons I have outlined with respect to the proposed buffer zone. 
           Mr. Hutton raised concerns about two matters that interlink.  The first of these relates to the presence and use of a statutory easement in favour of the Moreton Sugar Mill  serving a cane tram line corridor.  Pursuant to this easement, the appellants are required to maintain a Broadform General and Products Liability Insurance policy at their own expense.  In addition to this imposition, Mr. Hutton gave evidence that during the cane harvesting season which runs from July or August to November each year there are about ten daily train movements along the line which runs within “2 chains” of the appellants’ house.  Many such movements are at night, generating  noise.  The connected issue relates to trespass by those who illegally traverse the easement corridor causing nuisance to the appellants.  Located within the Scenic and Camping Reserve mentioned earlier is a local tourist feature, named Dunethin Rock which has, nearby, a picnic area  fronting the Maroochy River. The attraction of these features brings a number of people into the area and this therefore contributes to the level of trespass.  Mr. Hutton said that people frequently run down Dunethin Rock onto the subject land and apart from the trespass involved, this manner of entry onto the land means that constructing a fence along this boundary would pose a safety hazard to such people.  Elsewhere, Mr. Hutton has constructed fencing at his own expense to limit the number of trespass incidents.  The erection of signage also appears to be required. 
           Mr. Hutton referred to two sales as representing his basic evidence in support of the contended figure of $75,000.  The first of these comprised a sale of a cane farm.  Whilst Mr. Hutton did not provide a comparison between the subject land and this sale land, the sale would be of no benefit in this valuation exercise as it is a fundamental principle of valuation that in comparing sales with land to be valued, the uses must be similar; that is, one must compare “like with like”.  In the instant case, the subject land is valued as having a highest and best use  as rural residential, therefore no valid comparison can be made with this sale land.  Mr. Hutton mentioned another sale, however, he did not inspect the property nor did he provide any comparison with the subject land.
           Mr. Hyde said that the appellants’ property, being a large rural homesite and therefore  a rare type of property within the Shire and becoming increasingly rare, required an investigation of sales from a somewhat wider area than the immediate locality of the subject.  He explained that as part of the initial mass appraisal approach carried out by the Chief Executive, 26 sales were investigated.  He said that in his view a purchaser looking for rural homesites  of the class that the Hutton property falls into would go across the whole of the Shire and intra-Shire before settling on a transaction. The first of Mr. Hyde’s basic sales is located 5 km north of Yandina in an area which Mr. Hutton described as being more valuable then the subject area.  Mr. Hyde expressed the view that given the sale block has a westerly aspect and is located in a more closely settled area than is the subject, with the attendant loss of privacy, that he could not agree with Mr. Hutton’s criticism of the sale.  Mr. Hyde’s comparison with the applied valuation of the sale at  $132,000 is said to support the  $124,000 applied to the subject. 
           Mr. Hyde’s second sale is located 4 km north of Yandina and was criticized by Mr. Hutton as being in the ginger farm locality, therefore attracting a premium.  Mr. Hutton did not know the particular sale property, however, Mr. Hyde explained that the sale block has none of the qualities necessary for ginger production.  The applied value of this sale was $100,000.
           Mr. Hyde also referred to a relativity block, namely, Lot 3 on RP 26607 having an applied value of $130,000 based on the same sales tendered in the subject case.  He explained that the same tram line which impacts on the subject land traverses the relativity property which is smaller than the subject, narrower, has a knoll in the centre of it and fronts the river.  It has the advantage of absolute frontage to the river, whereas the subject land is separated from the river by the esplanade mentioned earlier.  The relativity block does not suffer from the influence of trespassers, a negative feature of the subject land.
Before stating my conclusions on the application of the basic evidence, I should mention that it is important to keep in mind that the valuation to be arrived at must be based on the presumed unimproved state of the subject land. That is, I need not proceed on the basis that the current location of the appellants’ house is the preferred location given the availability, as I have described above, of suitable land towards the western boundary. Let me set out the law. Section 45(4) of the Valuation of LandAct provides with respect to a notice of appeal:

“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.” (emphasis added)

Section 3(1)(b) of the Valuation of Land Act provides a definition of “unimproved value”

which is applicable in the subject case:

“in relation to improved land - the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require, assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist.”

The manner in which improvements are to be treated on a piece of land to be valued for the purposes of the then New South Wales Legislation which included provisions similar to s.3(1)(b) mentioned above is expressed in Toohey’s Ltd v. Valuer-General (1925) AC 439. At page 443 of this case the Privy Council said:

“Now, what he (that is, the valuer) has to consider is what the land would fetch as at the date of the valuation if the improvements made had not been made.  Words could scarcely be clearer to show that the improvements were to be left entirely out of view.  They are to be taken, not only as non-existent, but as if they had never existed.”

Having regard to the law that I have outlined above, I am to proceed as if the subject house was not there and in fact had never been there and to consider the appeal and the value of the notionally vacant or unimproved land on that basis.
           Whilst it may be possible, in a hypothetical sense, to locate a house in a position further removed from Dunethin Rock and from the tram line and therefore from the trespassers, these disabilities would still impact on the subject land and may in fact be somewhat more difficult to manage with a house being some distance away.

With these points in mind, I have considered the sales evidence provided by Mr. Hyde and I have had regard to the relativity block referred to by him.  In paying particular regard to the trespass and nuisance problem impacting upon the subject land, I have decided to adjust the applied valuation of $124,000 of the Chief Executive down to $120,000 a figure which would not be inappropriate according to Mr. Hyde.
           The appeal is allowed and the valuation of the subject land is determined at One Hundred and Twenty Thousand Dollars ($120,000).

RP SCOTT

MEMBER OF THE LAND COURT