Ipson v Chief Executive, Department of Natural Resources and Mines - [2002] QLC 30

LAND COURT

BRISBANE

18 April 2002

Re: Appeals against annual valuations

Valuation of Land Act 1944
  Property ID Nos:        9059765 and 9059766
  Local Government:    BCC-Stephens
  (AV2001-0209 and 0210)

Leonard JP Ipson (AV2001-0209)

Chief Executive, Department of Natural Resources and Mines

and

Leonard J Ipson and Craig A Ipson (AV2001-0210)

Chief Executive, Department of Natural Resources and Mines

D E C I S I O N

Background:

This matter relates to two adjoining properties at 221 and 217 Venner Road, Fairfield, and described as Lots 140 and 141 on RP 37247 (221 Venner Road) and Lots 138 and 139 on RP 37247 (217 Venner Road), Parish of Bulimba. The subject lands both have areas of 1,214 m² respectively, and are located on the northern side of Venner Road about five kilometres south-east of the Brisbane Central Business District. Venner Road is bitumen sealed with concrete kerbing and channelling. All normal urban services and amenities are available. The key issues are the impact of noise, impact of flooding, filling of the lands, method of valuation and comparison of sales.
The subject lands are zoned Residential A under the Town Plan of the Brisbane City Council of 13 June 1987, effective at the date of valuation of 1 October 2000. Both properties are used as single residences and have been valued as such under section 17 of the Valuation of Land Act 1944. The lands are located in the low residential density area of the revised City Plan 2000, which became effective on 30 October 2000.
On 26 February 2001 the Chief Executive issued valuations of the subject lands at $82,000 (221 Venner Road) and $90,000 (217 Venner Road). Following objections the Chief Executive reduced 221 Venner Road to $80,000 and 217 Venner Road to $88,000 on 29 May 2001. The appellants have now appealed claiming the unimproved values should more properly be $62,000 (221 Venner Road) and $70,000 (217 Venner Road). At the hearing on 14 February 2002 the appellants sought leave to amend their estimates of the unimproved values to $30,000 (221 Venner Road) and $50,000 (217 Venner Road). At the request of the appellants there was no preliminary conference undertaken by the Court. By agreement of the parties, both matters were heard concurrently.
Mr A Skoien of Counsel appeared for the appellants, calling evidence from Leonard Joseph Patrick Ipson; Clive Dodd a registered civil engineer and town planner; and John F Purcell a registered valuer. Mr R Paterson, Principal Legal Officer, appeared for the respondent, calling evidence from Peter Michael O’Donovan, the departmental registered valuer responsible for determining the valuations.
History of the appeals -
The above property at 221 Venner Road has been the subject of extensive litigation before this Court over several years. An appeal in respect of the unimproved value of that parcel was resolved in the appellant’s favour on 2 December 1987 (V87-621). A subsequent appeal against the unimproved value at 30 June 1990 was dismissed by the President of this Court on 21 December 1992 (AV91-819). However an appeal against that decision was upheld by the Land Appeal Court on 17 February 1994.
The basic evidence throughout these appeals has been the consistent claims by the appellant that the impact of flooding has been seriously under-estimated in concluding the valuations. In the 1987 appeal the appellant contested an unimproved value of $21,500, contending for a figure of $8,000. The Court determined an unimproved value of $17,500. In the 1990 appeal the appellant contested a valuation of $42,000, contending for $28,000. The Land Appeal Court in that matter determined a figure of $40,000, resolving any doubts in the appellant’s favour. In all of those former matters the impact of flooding and filling of the site, and the adjoining Felberg Park to the west of the subject land, was extensively considered.
It is also agreed that Mr Leonard Ipson has been a long-term resident of the subject land at 221 Venner Road since 1928 when his parents settled the land. Mr Ipson acquired the adjoining property at 217 Venner Road with his son in 1995. Mr Ipson recalls that in its original state in the 1920s Venner Road terminated into swamp lands, which have subsequently been reclaimed as Fehlberg Park.
Mr Ipson provides evidence that the reclamation of Fehlberg Park commenced with filling towards the northern side of the old swamp near Turner Avenue in 1940. The filling then progressively continued in a southerly direction towards Hyde Road and also to Fairfield Road. During that process the filling progressed to a height of up to 3 metres, finishing about 1.8 metres in height above the subject land at its frontage to Venner Road.
During the filling operations the Brisbane City Council (the Council) placed stormwater drainage lines across Fehlberg Park, involving a 750 millimetre RCP joining Forsyth Street and twin 1800 RCPs along the floodway to the south-west of the Park. A twin 300 millimetre RCP line drains floodwaters from a gully trap at the south-western corner of 221 Venner Road, westward into the 750 millimetre RCP under the Park. (Exhibits 3 and 10).
As the filling of Fehlberg Park progressed it became necessary for the Council to raise the height of Venner Road adjoining the Park by about 0.45 metres. The road was further raised in 1950 by about 0.3 metres in order to improve access for the trucks transporting the fill material. Following the major city flooding in 1974, Venner Road carriageway was raised a further 1.5 metres in 1975 in front of the subject land at 221 Venner Road. That later filling has remained as the current height of Venner Road.
Following the raising of Venner Road in 1950 some filling was placed by the Council on the front part of 221 Venner Road to a depth of about 1.8 to 2.1 metres in order to overcome ponding of local floodwaters. Subsequent to the major floods in 1974, the Council provided further filling to both 221 Venner Road, and also to three properties further to the east (217, 213 and 209 Venner Road).
Because of the raised levels of both Fehlberg Park and Venner Road, the front part of the subject lands had virtually become an earth dam, with alleviation of the floodwaters only via the twin 300 millimetre RCPs under the Park. Mr Ipson argues that the limited capacity of those pipes means that floodwaters take some time to dissipate from the subject lands. He argues that such flooding has occurred on a regular basis several times a year since 1954. It is his opinion that a rainfall of only 25 millimetres would cause flooding of Venner Road in front of the subject lands. To support that conclusion he provides a pictorial records of succeeding floods between 1954 and March 2001. (Exhibit 3). To alleviate flooding problems on 221 Venner Road the appellant relocated the existing dwelling in 1974 to higher land towards the rear of the parcel, and has constructed a retaining wall to increase flood immunity.

Impact of flooding -
In considering the total impact of flooding upon the subject lands it is necessary to consider that disability from several perspectives:
(3.1) major periodic river floods
It is agreed by both parties that both subject lands are impacted by the major river floods such as in 1974 (Q100), and that floodwaters in 1974 extended up to the corner of Forsyth Street and Venner Road about 60 metres east of 217 Venner Road (reduced level 9.41 AHD). Venner Road itself was under water in front of both subject lands in 1974. It is also agreed that even if the impact of possible flood mitigation works as a consequence of the construction of Wivenhoe Dam are considered (to RL 6.7 metres AHD), both parcels would remain impacted by the major periodic river flooding. The subject lands vary in height from 3.9 metres to 6.5 metres AHD (221 Venner Road) and 4.0 metres to 7.3 metres (217 Venner Road). (Exhibits 5 and 6). Many other parcels in Fairfield Road are also impacted by such floods.
(3.1) local flooding
This occurs mainly either as a result of normal run-off waters across the land; or as a result of inadequate drainage facilities along roadways. However in respect of the subject lands they are also impacted by back-water build-up of floodwaters due to the local creek, pipe and channel configuration. The topography of the major drainage areas in that part of Yeronga and Fairfield, reveals that there is an old creek along the Fairfield Reserve west of Fehlberg Park. That creeks enters the Brisbane River under the Brisbane Corso to the north of the park lands. (Exhibit 3 page 4). There are four flood gates controlling the discharge into the Brisbane River at that point. Those flood gates are regularly impacted by sedimentation build-up.
The problem of back water flooding in that area is recognised by the Council, and noted to be as a consequence of the lack of any grade to allow run-off of the waters, and the inadequate standard of drainage facilities in the area. (Council letter of 3 May 1989). Mr Dodd further advises that while the current filling on both subject lands has generally eliminated on-site ponding from local flooding, it has not eliminated ponding and flooding of Venner Road itself, with consequential access problems, mainly for 221 Venner Road. Current predictions from the Council are that such local flooding problems will not be alleviated by further infrastructure works for at least another 10 years.
The back-up flooding is also impacted by high tides in the Brisbane River during heavy rains. Mr Ipson advises that the local flooding impacts the frontages of 221 and 217 Venner Road, and to a lesser extent 213 Venner Road. The adjoining parcel at 211 Venner Road is virtually not impacted by the local flooding. Mr Purcell also confirms the general back-up flooding in the old creek course which has been concreted by the Council in order to improve waterflows.
Mr O’Donovan agrees that 221 Venner Road would be one of the worst affected parcels impacted by local flooding in the Fairfield/Yeronga areas. However he notes that flooding occurs in many areas of Yeronga and Fairfield. Mr Ipson provides a template that he has prepared of the extent of a 5 metre floodline in that area. That was prepared from professional orthophoto mapping supplied by the respondent department. The templates of the floodlines from the vertical orthophoto mapping transcribed to the oblique aerial photograph in Exhibit 3, demonstrates Mr Ipson’s understanding of the extent of local ponding of temporary storage of floodwaters in the vicinity of the subject lands.
In approaching his method of valuation Mr Purcell has sought to provide for some allowance for the impact of local flooding of the subject lands. It is his opinion in respect of that particular disability, that the market was likely to allow a reduction overall of about 20% in the valuation of the land. He bases that conclusion on a deduction of 10% for river flooding impacts, and a further 10% for local flooding impacts.
Mr O’Donovan rejects that approach in isolation, arguing that any impact of flooding was likely to have been ameliorated by the amount of filling placed upon the subject lands. However he concedes that an appropriate further allowance of between 2% and 5% might be applicable in the current matters, given the regularity of its occurrence, and the need to have had to relocate the dwelling to the rear of 221 Venner Road, and the resulting loss of access during local flooding periods. It is also agreed that the adjoining property at 213 Venner Road does not suffer loss of access to the same extent as the two subject lands.
Mr O’Donovan also agrees that the distinctive nature of the adverse impact of the local flooding upon the subject lands was the key determinant factor impacting the valuation. He argues that the drainage problems were provided for in his valuation. He notes further that in his experience in Yeronga and Fairfield there is not a substantial difference in value paid between flood affected and non-flood affected lands and lands not affected by floods.
The nature of the land -
Both subject lands are rectangular and rise gently from Venner Road towards the rear at the northern boundary. Both parcels have been filled as a result of previous flooding, and quantities of agreed fill material are discussed later. 217 Venner Road is slightly higher than 221 Venner Road, which has a retaining wall along the rear part of the western end and the northern boundaries. The western boundary of 221 Venner Road adjoins Fehlberg Park and cricket playing fields, which are in regular use up to five days a week for matches and practice purposes. There were originally eight practice wickets and a clubhouse which adjoin the western boundary of 221 Venner Road, extending up to 24 metres from the existing dwelling. Subsequently a further three practice wickets have been built near the boundary. In addition local school children use the wickets after school.
The level of Venner Road rises as it extends eastwards towards Fairfield Road. Immediately to the south across Venner Road is an open reserve, and across Venner Road to the south east is the RSPCA Animal Refuge Complex. Venner Road extends westward from the subject lands for about 100 metres, where it ends in a cul-de-sac providing vehicle access to Fehlberg Park. A major watercourse runs to the south and west of Venner Road, discharging to the north towards the Brisbane River.
Following the filling of the subject lands, the south-eastern corner of 221 Venner Road is about 0.3 metres above the Venner Road pavement surface, and the frontage of 217 Venner Road is about level with the kerb line at that point. The adjoining Fehlberg Park is slightly higher than 221 Venner Road, causing surface waters to concentrate on Venner Road in front of the subject lands.
Both Mr Purcell and Mr O’Donovan agree that the current nature of the open park provides a pleasant outlook for 221 Venner Road. However Mr Purcell notes that amenity is impacted slightly by the noise from the cricket activities on the practice wickets.
The impact of noise -
There are two impacts from noise argued by the appellant. Firstly the regular and disturbing howling and barking of dogs, often at night time from the nearby RSPCA complex; and secondly noise from the adjoining cricket activities in Fehlberg Park. It is agreed that the RSPCA noises are heard generally in that locality, and can also be heard further to the north-west for about 700 metres at least. It is also noted that parking at the RSPCA facility can be a problem, and photographs of vehicles parked in Venner Road adjoining the RSPCA site demonstrate that point.
Mr O’Donovan agrees that noise impacts occur, and notes that the main buildings at the RSPCA complex extend south along Fairfield Road as well as west along Venner Road. However the desexing quarantine kennels extend towards the west near the subject lands. The western part of the RSPCA complex and the adjoining reserve remain as vacant land.
Mr O’Donovan does not dispute that noise does emanate from both the RSPCA and the cricket club; but argues that he has allowed for that in his valuation. The noise from both of those sources were not matters explored in the previous appeals by Mr Ipson. However the valuer for the respondent (Mr Savage) in the 1990 appeal (AV91-819), noted that in his opinion the greatest disability attaching to the land was the impact of noise from proximity to the RSPCA site.
Mr Purcell seeks to quantify the relative disturbance from the two noise sources. He notes that the cricket club noise emanates from a closer but much more restricted source; while the noise from the RSPCA emanates from a much more broad source, but is further removed from the subject lands. He notes that while both noises could not be referred to as horrendous in nature, they nevertheless, in his opinion, detract from a pleasant residential perspective.
Mr O’Donovan had partly allowed for the noise from the cricket nets when he reduced the valuation for 221 Venner Road from $82,000 to $80,000 following an objection by Mr Ipson. However that reduction had also allowed for some further impact by the very heavy rainfall during the 10 March 1991 deluge. A similar reduction had occurred for 217 Venner Road from $90,000 to $88,000. Mr O’Donovan agrees that the impact of the noise from the RSPCA kennels was greater at the subject lands than at his nearest Sale 1 (15 Venner Road).
The impact of filling -
There is no dispute about the quantum of filling already existing on the two subject lands. That was quantified in the 1987 appeal (V87-621) at 800 cubic metres for 221 Venner Road, and was not disputed in the decision of the Land Appeal Court in 1994 (AV91-819). The volume of filling of 145 cubic metres on 217 Venner Road is also not disputed in the current matter.
However with the passage of time the allowance for that filling has varied from an estimate by the appellant’s valuer (Munro) of $9,000 in 1987, which was amended by the Court to $4,000 in that matter, to the current amount claimed by Mr Dodd at $41,900 for 221 Venner Road, and $21,050 for 217 Venner Road.
The question of the added value of the filling, and its relevance to the determined unimproved value of the subject lands, has been a matter of difference between the parties for some time. In the Land Appeal Court decision it was noted that the respondent did not dispute that the filling of the subject land would have increased its market value, but the respondent disputed that the cost of such filling would equate to its added value of improvement. The respondent had argued that the preferred building site was at the rear of the property, and it was merely the choice of the owner to import the filling to the front of the parcel. The Land Appeal Court formed the view that at least some filling was needed at the front in order to provide some effective access. In the end the Land Appeal Court allowed an additional value of $2,000 for the filling in that matter, resolving any doubt in the appellant’s favour.
In the current matter Mr Dodd advises that the cost of filling on urban residential sites is now impacted by Council charges to the extent that costs of filling are a significant matter for an owner. Mr Dodd advises that as the lands fall in certain declared flood prone areas, the effect of planning legislation at the date of valuation would have required a consent use application to the Council.
Such application would require an engineering assessment based upon a flood study undertaken in a theoretical model, which requires a minimum fee to run the computerised modelling exercise. In addition he advises that other standard charges dictate cost for reports on environmental matters, town planning, and acid sulphate soil analyses. Mr Dodd advises that in such consent use applications the Council has little scope for wavering such reports and costs, irrespective of the small volume of filling required. The purpose of such reports is to ensure that the filling does not adversely impact other properties, or the surrounding waterways.
Mr Paterson does not dispute Mr Dodd’s technical advice, but questions the need for the full consent application, under the theoretical conditions of the current matters. Bearing in mind that the Council in effect contributed to the ponding effects upon the land through filling the Park and roadway, he notes that it was possible that the Council could waiver some of those costs. However Mr Dodd advises that while normally there is some discretion for the Council to waiver full costs, it does not do so in respect of four major river floods in 1955, 1960, 1972 and 1974. A consent use application for filling is mandatory for flood impacted lands affected by those four floods. While Mr Dodd has no personal experience of filling in Venner Road, his wide experience elsewhere in Brisbane confirms his views of inflexibility in this matter by the Council. However he concedes that if the flooding was not as a consequence of the four selected flood occurrences, then some latitude might apply.

Mr Dodd further advises that his costs of filling relate only to bringing the subject lands to the current level of fill. He notes that under the planning legislation effective at the relevant date, it would have been required to bring any building pad area to a reduced level 150 millimetres above the Q100 (post-Wivenhoe Dam) level of 6.7 metres at the subject land.
Mr Dodd also advises that even if some discretion could be allowed by the Council in respect of demanding flood studies, in his opinion, it would be prudent for an owner to do so before seeking building approval. Accordingly he has dealt with each property as a separate consent use application. Mr O’Donovan advises that he had been unaware of the full implications of filling the sites, but that he had not used that approach anyway in determining his unimproved values. However he concedes Mr Purcell’s use of such an approach as a check on the valuation.
Mr Skoien notes that while the unimproved values of 221 Venner Road had risen by a factor of 2.0 between 1990 and 2000 (Exhibit 8), the actual costs of filling due to increased Council charges had increased by a factor of ten times ($4,000 to $40,000) over that period. He argues that should signal a revision of the unimproved value in view of the special circumstances of the subject lands in respect of local flooding.
Method of valuation -
In determining their valuations, Mr Purcell and Mr O’Donovan have used different approaches to their task. Both have relied upon comparisons of sales to support their conclusions, but each has used those sales in a different overall manner. At the heart of their dilemma I suggest is the paucity of directly comparable sales of vacant lands in close proximity to the subject lands. Each valuer has sought to provide a check on their initial approach in order to provide a level of confidence in the valuations determined.
In his approach Mr Purcell has sought comparisons with sales of vacant lands not directly impacted by local flooding. He then concludes values as filled vacant sites, to which he makes an allowance for the further disability of the local flooding at 20% of the filled site value. Mr Purcell then deducts the value of the filling improvements to conclude an overall unimproved value of each parcel.
In adopting that approach Mr Purcell concludes the following values:

Basis

221 Venner Road

217 Venner Road

Base Value

Deduction for river flooding at 10%

Deduction for local flooding at 10%

Deduction for filling

Unimproved value

Say

$85,000

$8,500

$7,650

$41,900

$26,950

$$30,000

$87,500

$8,750

$7,875

$21,050

$49,825

$50,000

Mr O’Donovan argues that if he was to consider such an approach, then his base value for each parcel would be about $150,000 for a parcel of that size (1,214 m²), in that locality, but impacted by some local flooding. It is Mr O’Donovan’s opinion that a 1,214 m² flood free parcel in the Fairfield area would be valued at about $175,000. However he concedes such a parcel would be in a better part of Fairfield, and not subject to the same extent of flooding.
If he then made allowances for the filling at $41,900 (221 Venner Road) and $21,050 (217 Venner Road), he could conclude unimproved values of $108,100 (221 Venner Road) and $128,950 (217 Venner Road). His conclusion by that process is that his current determinations at $80,00 and $88,000 are very conservative. Mr Purcell disagrees with such a conclusion, arguing that the current sales in Fairfield and Yeronga areas do not support a base value of $150,000 for the subject lands.
Mr Paterson argues that even if the unfilled values of $108,100 (221 Venner Road) and $128,900 (217 Venner Road) were then subjected to a 20% discount for local flooding and river flooding, the resulting figures of $86,500 and $103,160 more closely support Mr O’Donovan’s conclusions, than the figures proposed by Mr Purcell. However he was unaware of a case where separate allowances for fill and flooding had been considered. He argues that could reflect double dipping for that disability.
In support of his determination, Mr O’Donovan has initially relied upon an updating of the earlier relativities for 221 Venner Road established by the Land Appeal Court in 1994. By analysing vacant land sales in the locality he has determined a percentage increase in both the subject lands and the relative properties adopted in the 1990 valuation (Exhibit 8) Applying a similar very conservative percentage increase he concludes the values of $80,000 and $88,000 for the subject lands. Mr O’Donovan advises that he has applied the more conservative percentage increase to the subject lands in recognition of the drainage problems impacting those lots.
In seeking a direct check against the sales in the Yeronga/Fairfield area, Mr O’Donovan has compared those on an unimproved land basis. Mr O’Donovan rejects Mr Purcell’s starting point for the subject lands as improved fill lots at $80,000.
In applying the percentage increases factorisation approach to the valuations Mr O’Donovan explains how he analyses the sales in the area, and then determines the appropriate percentage increase for each separate sub-market area. In the case of Yeronga he advises that there is even a separate part of that sub-market area (near Hyde Road), which is separately adjusted manually in accordance with the market trend as demonstrated by the sales evidence. Mr Paterson notes that such methodology and approach was favourably accepted by the Land Appeal Court in the decision of BG and AK Wilson v Chief Executive, Department of Lands (1994-95) 15 QLCR 63, at 71.
Mr Skoien challenges Mr O’Donovan’s use of the percentage increases in relativities between the parcels compared by the Land Appeal Court. He notes that while s.33 provides a presumption that those valuations were correct, unless proved to the contrary, if there were any errors in those relativities, then Mr O’Donovan’s approach provides virtually a self-fulfilling prophecy.
Mr O’Donovan agrees that the comparisons of sales in the current matter were only adopted as a means of verifying the values determined by the computerised factor approach, and for presentation to the Court. He agrees also that the respondent may often be unaware of the particular problem such as local flooding, unless they are brought to attention at an objection conference. However he claims that because of the history of this property he was aware of such disabilities, and had allowed for them. He believes they were adequately addressed by the Land Appeal Court in 1994.
In finalising the respondent’s case Mr Paterson admits that there is some weakness in the respondent’s method, but argues that any fair appraisal of the final unimproved values of the subject lands would support Mr O’Donovan’s concluded value rather than those of Mr Purcell. He notes that reflects the obiter passage of the Land Appeal Court decision at page 9.

Changes in the market -
Before considering the sales information, it is appropriate to understand the relevant state of the property market prior to 1 October 2000. Mr Purcell acknowledges that more recently there have been significant increases in property values throughout Yeronga and Fairfield. However, from his extensive experience in the area, he believes the market was relatively stable until early 2000.
Mr Purcell admits that the value of improved parcels rose sharply after the introduction of the Goods and Service Tax (GST) on 1 July 2000, and by early 2001 had experienced greater increases. He admits that conclusion is based upon his opinion as he does not have a solid statistical evidence of market analyses to support it. However he doubts Mr O’Donovan’s opinion that a rise of 20% had occurred in the value of comparable sales between October 1998 and October 2000, although he accepts that there had been some movement upwards in that period.
In respect of the large increases in value, particularly in the inner suburbs of Brisbane, Mr Purcell notes that the larger rises tend to be restricted to the better quality parcels in an area. He argues that increases for the lesser quality parcels, even in inner suburbs, are not as large as the boom conditions indicate.
Mr O’Donovan disagrees partly with that conclusion, and provides an analysis of recorded sales used for the 1 October 1998 valuation (Exhibit 13). He notes that in both Fairfield and Yeronga there were significant increases in values during that period. He notes for example that a sale in Mearns Street, Fairfield, in December 1997 showed a 15% increase in the applied value for that period, while sales in Anita Street and Hyde Road Yeronga demonstrated increases in value of about 50%. Mr O’Donovan advises that overall Yeronga was increased in that period by about 35% for vacant lands, while Hyde Road was increased by 20% and Fairfield was generally increased by 20%.
Mr O’Donovan also provides a schedule of recorded sales between 1 October 1999 and 1 October 2000 (Exhibit 12). He advises that some sales are seen as low sales and others as high sales, but a middle approach is taken in seeking a conservative movement in the market. However it is noted that during 1997/98 there was only one recorded vacant land sale in Fairfield (Mearns Street), and also in 1998/99 there was only one recorded vacant land sale in Fairfield (158 Venner Road).
During the same periods there were seven sales of vacant lands in Yeronga in 1997/98, and twenty-four sales in 1999/2000. The different rate of sales in the two suburbs was likely to reflect the greater attractiveness of Yeronga. Mr O’Donovan explains how he analyses those sales into three categories of sale reflecting the relationship of the analysed value of each sale compared to the selected market level for that sale. Mr O’Donovan advises that unless there is a clear level of support for a proposed change in the applications, then the conservative nature of his assessment dictates that he reassess any percentage factors to apply to each Sub Market Area (SMA).
Mr O’Donovan further confirms those analyses by noting that the two properties compared for relativity purposes by the Land Appeal Court in 1994 (58 Ashley Street and 45 Forsyth Street), were both in Fairfield, and each of those was increased in applied value by 20% at 1 October 2000. The larger overall percentage increase in those two properties between 1990 and 2000, compared to that applied to the subject lands, reflected further reductions applied to the subject lands following objection conferences. Because the Ashley Street and Forsyth Street properties had not been objected against, their unimproved values had not been amended at that time.
In seeking guidance on the level of change in the market during the above periods, Mr Skoien notes sales in Anita Street Yeronga which would appear to be inconsistent with the applied 20% increase. However Mr O’Donovan rejects those comparisons noting that the selected sales varied in location, views and size. Mr O’Donovan then notes that the Mearns Street sale reflected a hatchet shape inferior property nearby to a large warehouse or factory, and close to the railway line. As such Mr O’Donovan argues that the Mearns Street sale does not reflect the average areas of Fairfield.
In drawing any comparison between the sales of Mearns Street ($55,000 – 300 m²) and 158 Venner Road ($80,000 – 569 m²) over succeeding years, Mr O’Donovan argues that increase is not inconsistent with his suggested 20% increase in the market. He notes that both properties are quite lowly valued lands in the Fairfield area. However he agrees that unless like properties are compared then it does not demonstrate any consistent factor for an increase in value due to the size of a residential parcel in that location.
Comparison of sales -
To support his valuation Mr Purcell draws support from the following sales of vacant lands:

Sale 1 – (158 Venner Road, Fairfield – Lot 1 on SP 120933). This is a common sale of area 569 m², located about 300 metres east of the subject land, and about 20 to 30 metres east of busy Fairfield Road. The sale has no direct frontage to parkland, and is much closer to the railway line. The sale is also impacted by noise from the RSPCA facility and Fairfield Road, and is agreed to be higher in elevation and free of flooding.

The sale is seen as representing an unflooded residential site value in Fairfield. The sale sold in June 1999 for $80,000. The sale property resold later in May 2001 for $78,000, but the later sale occurred after the date of issue of the current valuation and is not directly relied upon by Mr Purcell.

Sale 2 – (49 Cameron Street, Fairfield). This is a smaller 405 m² parcel of higher elevation, and zoned RBR3. However because of minimum size restrictions on multi-unit developments it has been developed as a single residential site.

The sale sold in October 1998 for $80,750. It is agreed that this sale was also subject to major river flooding.

Sale 3 – (213 Venner Road – Lot 137 on SP 37247). This is a 607 m² improved parcel adjoining 217 Venner Road to the east. The parcel was developed with a residence at sale, and is provided only to demonstrate the limited price achieved for improved properties suffering the detrimental effects of low elevation and noise from the RSPCA in that locality.

The sale sold in January 2001 for $133,000, and the added value of improvements was not fully analysed as it was a late sale.

Mr Purcell argues that the Yeronga market is substantially superior to the Fairfield area, and he sees no recognition of that difference in Mr O’Donovan’s sales analyses. Mr Purcell argues that the quality of homes subsequently built on the respective sales demonstrates that relative difference in values in the two different sub-market areas. Mr Purcell further argues that there tends to be a difference in those areas of conservative about 10% between flood-free lands and flooded lands, all else being equal. Sale 2 (49 Cameron Street) was agreed to be at the bottom of a hill and to be a narrow parcel without direct access to park land. It also occurred early in 1998 before any rise in the market.
Mr Purcell concludes that single site values in that part of Fairfield in 1998 tended to lie within the range of $70,000 to $90,000 depending upon their particular characteristics. He concedes that had there been a 20% rise in the market to the relevant date, then values of about $100,000 would not be inconsistent. However he challenges that a 20% rise had occurred in that period.
To support his valuation, Mr O’Donovan provides the following sales of vacant Residential A lands:

Sale 1 – (158 Venner Road, Fairfield). This is a common sale which is seen to have inferior access to Venner Road due to its closer proximity to the round-about intersection with Fairfield Road. The sale has superior topography and elevation and is flood-free, but is significantly smaller in size (569m²). Overall the sale is inferior.

The sale is sold in June 1999 for $80,000, was analysed at $78,500, and applied at $66,000.

Sale 2 – (27 Anita Street, Yeronga – Lot 5 on SP 128746). This is a 466 m² parcel located about 1.5 kilometres west of the subject land, with superior topography and elevation. Access is seen as similar to the subject land. While the sale is smaller, because of its topography and elevated location in Yeronga, the sale is seen as superior to the subject land.

The sale sold in June 2000 for $130,000, was analysed at $129,000, and applied at $128,000.

Sale 3 – (201 Hyde Road, Yeronga – Lot 2 on RP 69668). This is a 1,227 m² parcel located about 1.1 kilometres west of the subject land. The sale is similar in size, adjoins a park and overlooks industrial lands which generate some noise. The sale has had significant fill on site. Due to its superior location the sale is seen as superior to the subject land.

The sale sold in April 1998 for $136,000, was analysed at $123,000 after allowing for demolition of an old house ($2,000) and a retaining wall and extensive fill ($15,000). Subsequently this sale was applied at $120,000, in order to allow for local flooding on the 10 March 2001.

Sale 4 – (89 Ormadale Road, Yeronga – Lot 87 on RP 90407). This is a 607 m² parcel located about 1.7 kilometres west of the subject lands. The sale is impacted by major periodic river floods, but is not impacted by local flooding. Although substantially smaller in size, the sale is seen as superior to the subject lands due to its superior location and topography.

The sale sold in January 2000 for $168,000, was analysed at $167,000 and applied at $152,500.

Mr Purcell argues that the locations of both Ormadale Street and Anita Street in Yeronga are vastly superior to the subject lands in Fairfield. Mr O’Donovan concedes that there is a significant difference between sales in the two suburbs. He feels that a difference up to $40,000 could be reasonable between better parts of Yeronga compared to Fairfield. Mr Purcell also notes that while both Sales 2 and 3 were impacted by major periodic river floods in 1974, they are not further impacted by local flooding similar to the subject lands. He further notes that the quality of the homes in the surrounding streetscape of those sales supports his contention that there is a marked difference in the market in that locality. Mr Purcell argues that Sale 2 (Anita Street) is now clear of the post-Wivenhoe Dam flood prediction areas.
In respect of Mr O’Donovan’s Sale 3 (201 Hyde Road), Mr Purcell agrees that parcel was affected by the 1974 flood, but feels the land was unlikely to be impacted by localised back-up flooding. He argues that the 10 March 2001 was an isolated deluge that affected most of Brisbane and not just Sale 3. On that basis he concludes that Sale 3 does not suffer from the repeated inundations of local back-up flooding evident at the subject lands. Mr O’Donovan suggests that his Sale 3 (201 Hyde Road) is the most comparable to the subject lands, but agrees the only recorded local flooding on that site related to the single event on 10 March 2001. He concedes that Venner Road would be more affected by local flooding than Hyde Road, and that 201 Hyde Road is two to three metres above Hyde Road.
In respect of any difference in value for home sites relative to size in the Fairfield area, the valuers differ. Mr Purcell claims that relative size in a parcel for a home site adds relatively little extra value. He contends that people seek a home site, and are prepared to pay a little more for extra area. Both valuers agree that extra area is not proportional in extra value. However Mr O’Donovan argues that the comparison of say a 1,200 m² parcel to a 400 m² would reflect a differential factor of about 1.8 to 1. He further clarifies his experience in respect of an area differential by suggesting that, in his opinion, a comparison of a 1,200 m² parcel to a 600 m² would reflect a differential factor of about 1.5 to 1.
Mr O’Donovan advises that properties below the major 1974 floodline continue to demand high prices in spite of their propensity to flood at periodic intervals. However it is agreed that regular repeated local flooding is a further problem that would attract attention in the market place. In respect of differences between his Sale 3 (201 Hyde Road) and 221 Venner Road, Mr O’Donovan argues that the former is perhaps 5% superior.
Relativity -
Mr Purcell seeks some relativity with eight parcels in Arras Street, Yeronga, Penton Street, Fairfield and Fairfield Street, Annerley. He notes that those lots have areas varying between 600 m² and 1,589 m², yet their unimproved values vary only between $73,000 and $89,000. On that basis he concludes that additional size makes little difference in value. However Mr O’Donovan rejects those comparisons noting that the selected parcels vary considerably in character. It is noted for instance that the Fairfield Street, Annerley lands are quite high and steep with restricted access along a half-width road, but with good views. Mr Purcell concedes those differences. Mr O’Donovan also notes that the Arras Street lands adjoin the railway line, some are irregular in shape, others are below the railway land, and direct comparisons with Arras Street provides little assistance in the current matter. It is also noted that the Penton Street parcel has three easements across it which inhibit buildings.

In respect of general relativity with surrounding parcels near the subject land, Mr Purcell concedes that 213 and 211 Venner Road both at $80,000, are in reasonable relativity with the subject lands at $80,000 (221 Venner Road) and $88,000 (217 Venner Road). He notes that 213 and 211 Venner Road have areas of 607 m² compared to 1,214 m² respectively of the two subject lands. While not fully analysing Mr Purcell’s Sale 3 (213 Venner Road), Mr O’Donovan agrees that using a factor of 1.5 for the larger area of the subject land as a fill site at $150,000 would provide a land value of $100,000 for 213 Venner Road. By using such an approach the added value of the old dwelling could be concluded at no more than $33,000.
However Mr O’Donovan notes that following some improvements to the kitchen etc. after the sale in January 2001, that property resold in November 2001 for $203,000. He suggests a figure of $100,000 for the added value of the improvements does not conflict with his conclusions for the subject lands. However, because that sale and resale of 213 Venner Road are improved sales, Mr O’Donovan feels that the difficulty of assessing the added value of improvements mitigates against its use in the current matter.
Decision:

The nature of the lands -

I turn first to the nature of land and agree with both parties that the two subject lands experience local flooding problems generally in excess of all other parcels in that locality. The proposal to develop the old flood plain of the creek into sporting fields, has had both a beneficial and a detrimental impact upon surrounding parcels. While the Council has sought to improve water run-off by concrete lined open drains, the inevitable consequences of such earthworks, in topography where inadequate gradients are available, results in serious problems of drainage discharge.
The four flood gates where the drains enter the Brisbane River signify the difficult task confronting the Council. Regular siltation in such slow flowing systems is endemic, and the consequential need for regular maintenance of such drainage works is a task for many authorities. In such circumstances, perhaps even after major redesign of the drainage system, the subject lands will continue to suffer adverse effects of local back-up flooding.
It is the task of the valuers to consider the valuation for unimproved purposes in according with section 3 of the Act which relevantly states:

“3(1) For the purposes of this Act –

“unimproved value” of land means

(b)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.

(4) Notwithstanding anything contained in this section, in determining the unimproved value of any land it shall be assumed that -

(a)the land may be used, or may continue to be used, for any purpose for which it was being used, or for which it could be used, at the date to which the valuation relates; and

(b)such improvements may be continued or made on the land as may be required in order to enable the land to continue to be so used;”.

In seeking to understand the meaning of “the value of improvement” I turn to s.5 and note:
“5(1). The ‘value’ of improvements means, in relation to land, the added value which the improvements give to the land at the time as at which the value is required to be ascertained for the purposes of this Act, irrespective of the cost of the improvements, including in such added value the value of any hotel licence the value of which has been included in the improved value.

(2). However the added value shall in no case exceed the amount that should reasonably be involved in effecting, at the time as at which the value is required to be ascertained for the purposes of this Act, improvements of a nature and efficiency equivalent to the existing improvements.”

In this regard I note the decision of the Privy Council in Tooheys Limited v. The Valuer-General [1925] AC 439, where Their Lordships said at page 443:
“Now, what he 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 never had existed. It is, therefore, to approach the question from a completely wrong point of view to begin with a valuation which takes in the improvements and then proceed by means of subtraction of a sum arrived at by an independent valuation in order to find the required figure. What the Act requires is really quite simple. Here is a plot of land; assume that there is nothing on it in the way of improvements; what would it fetch in the market? It will be observed that the value is not what has been sometimes designated by the expression ‘prairie value’. The land must be taken as it exists at the date of valuation.”

In seeking direction from the Privy Council in Tooheys it is clear that what must be accomplished is a comparison of the two parcels as they were before the existing filling was placed upon them. Such a task envisages seeing the subject lands as their old reduced levels, but with all surrounding developments of Fehlberg Park and Venner Road at their current levels.
In seeking to ascertain the meaning of improvements to the subject land, I note the decision in PH Clough v The Valuer-General (1977-78) 8 QLCR 70, where the Land Appeal Court said at page 74:
“No improvement which is not on the subject parcel or strictly appurtenant thereto can be considered an improvement for the purposes of section 12 of the Valuation of Land Act.”

I also note the decision of the High Court of Australia in Morrison and Others v The Federal Commissioner of Land Tax (1914) 17 CLR 498, where Griffiths CJ said at page 503:

“The term ‘value of improvements’ is defined to mean ‘the added value which the improvements give to the land at the date of valuation irrespective of the cost of the improvements. … Any operation of man on land which has the effect of enhancing its value comes within the definition of ‘improvement’”.

However, because of the particularly large changes in the surrounding park and road levels, the complexity in seeking direct comparisons between sales of existing vacant lands and the unfilled subject lands poses serious difficulties for the valuers in drawing conclusions. In the special circumstances of this case, as there is no available sales where such disparity exists in any of the sales, I suggest that there is some value in drawing comparisons with the subject lands as fill sites, but with ongoing problems of local flooding. While Morrison dictates that it is the “added value” of the improvement that must be deduced, there is no evidence in the current matter that actual costs of filling would not reflect the added value that the fill brings to the subject lands.

The impact of flooding -

In seeking comparisons with sales in the area there are two impacts from flooding which are relevant. The overall periodic river flooding is wide spread in both Yeronga and Fairfield. Market evidence from Mr O’Donovan suggests that public acceptance of such flood risks has now reached the stage where many lots, particularly in areas of Yeronga such as The Corso and Ormadale Road, now reflect little difference between flooded and flood-free lands. In such areas the importance of particular locations transcend the inherent risks of future major flooding. Where such conditions prevail in the sales analysed I believed that reasonable comparisons can be drawn with the subject lands. Such a pattern has been noticed elsewhere in Brisbane.
However of perhaps more significance in the current matter is the extent of local or backwater flooding as it affects the subject lands. The evidence is that such events continue regularly each year, and it is likely to be a further ten years before the Council seeks to attempt to overcome the problem. While the higher lands of the subject properties remain free of such flood waters, access to the sites is impeded for extended periods.
Both valuers agree that local flooding impacts are the major detriment on the value of the subject lands. It is also agreed that the local flooding continues in spite of the existing quantity of filling currently in place. Mr Purcell makes a further allowance for local flooding to an extent of 10% of the unflooded value of the land. Mr O’Donovan concedes such disabilities might represent up to 5% of the unflooded value of the land. In respect of any allowance for overall periodic river flooding, I believe Mr Purcell’s allowance of a further 10% might be high, where market evidence reveals a possible trend towards apathy about future major Q100 floods, as memories of 1974 pass into antiquity.
However I agree with Mr Purcell that while the subject lands have been filled to their current levels, local flooding remains a problem for access, and a further allowance for that purpose should be accommodated.

The impact of filling -

A major difference between this matter and the previous appeals is the quantification in respect of the cost of such fill. The previous quantity of 800 cubic metres for 221 Venner Road is not contested, nor is the estimate of 145 cubic metres upon 217 Venner Road, and I accept those figures. In the 1990 decision of this Court the learned Member agreed on an additional $4,000 for the existing filling beyond the amount allowed for by the respondent. From the figures supplied in that decision the total amount allowed for filling was likely to vary between the $9,000 sought by the claimant and the additional $4,000 allowed by the Court in the determined valuation. For the purposes of this exercise I could consider a figure of about $7,000 for fill in 1990.
If I then add the additional $2,000 allowed by the Land Appeal Court in 1994, I could calculate a total cost of fill to overcome access problems in local flood times at $9,000 in 1990. The claim by Mr Dunn now is that the existing filling was likely to cost $41,900 at the relevant date, due mainly to increase costs in materials and new Council charges now relevant.
In considering Mr Dodd’s estimate of costs, I note that those figures are not seriously challenged, although Mr Dodd himself notes that the relatively high proportion of costs are Council charges. However, because of the likely impact of flooding on the subject lands, he believes a prudent purchaser would pursue that approach irrespective of whether or not the Council was able to waive compliance with its current by-laws. I note that under the by-laws filling to a higher level than the existing level could be required.
However for the purpose of assessing the current matter, the land is taken under s.3(4) to continue to be used as it exists as at the date of valuation. (Department of Natural Resources v Body Corporate for Golden Sands Community Title (LAC) AV99-280, 15 December 2000 unreported). On that basis I see no need to allow for additional filling beyond its current level, except an allowance for the additional volume to raise the access as provided by the Land Appeal Court.
In terms of the need to undertake the full range of studies outlined by Mr Dodd, I accept those as part of the current procedures required of such a task. That was explained in Small v Chief Executive, Department of Natural Resources (AV97-309), 16 April 1999, unreported at page 24.
In summarising the costs of filling at the relevant date, I accept Mr Dodd’s figures of $41,900 (221 Venner Road) and $21,050 (217 Venner Road). To those figures could be added an amount to update the Land Appeal Court’s additional filling estimate of $2,000 in order to allow for the impacted access of the land. However Mr Purcell has allowed for a further 10% of the fill value of the land in order to provide for local flooding. To allow both would appear to be double dipping for local flooding purposes, and I will make no further adjustment for filling beyond Mr Dodd’s estimate.

Method of valuation -

While both valuers have taken a different approach in their initial determination of unimproved value to that generally preferred by the Court (PH Clough v Valuer-General (supra) at page 76, neither approach adopted offends the principles regularly followed. Mr O’Donovan has sought to update the previous relativities by a percentage increase reflecting changes in the market analysed from sales of vacant lands. That follows closely the logic adopted by the Land Appeal Court in its decision on 221 Venner Road in 1994.
However relativities can vary over time, and the need to ensure correctness was identified by the Land Appeal Court in R and MM Barnwell v The Valuer-General (1989) 13 QLCR 13, where the Land Appeal Court said at page 16:
“We are conscious that it is desirable that valuations made for the purposes of the Valuation of Land Act of comparable lands should bear proper relativity, one to the other, if the valuations are soundly based. It is, however, untenable to adopt a value for one parcel on relativity with another which has no sound basis.”

The principle was further clarified in TF and FA Shepherdson v The Valuer-General (1992-93) 14 QLCR 83, where the Learned Member said at page 86:
“If possible, the Valuer-General should obtain uniformity between different blocks in the same land category or type, but should do so (preferably by reference to sales of comparable land) by correcting inaccuracies rather than by making an inaccurate assessment in order to secure uniform error.”

There is no suggestion that the former relativities were not correct, but rather that with the passage of time, the impact of filling now assumes a more costly improvement to the land. The importance of monitoring circumstances affecting the land was noted in Gibson Investments Pty Ltd v Valuer General (1978) 5 QLCR 223, where the Land Appeal Court said at page 230.
“It has been stressed on many occasions that reasonable property to property relativity within shires, is highly desirable to ensure an equitable distribution of the incidence of rating. … However, this is feasible only if the relevant dates of valuation are close in point of time and there have been no intervening circumstances affecting the market place.’”

In respect of Mr O’Donovan’s approach using factorisation and the departmental computer system, I note the Land Appeal Court’s conclusion in Wilson v Chief Executive, Department of Lands (supra) that such a process does not offend the Statute. That was also explored by this Court in the Yeronga area in Tighe v Chief Executive, Department of Natural Resources (AV97-402), 2 October 1998, unreported, at pages 12 and 15.
However there is a fundamental difference between the valuers in their concluded value of the subject lands as filled vacant lands. Mr Purcell has a starting point for his further reductions from $80,000 for 221 Venner Road, while Mr O’Donovan suggests a figure of $150,000.

Changes in the market -

Before considering the sales evidence I note the understanding of market changes by the two valuers. While the evidence of sales of vacant lands in Fairfield is restricted to only a single sale in each of the two years, the schedule supplied by Mr O’Donovan does not conflict with his understanding of the overall market trends. A close analysis of those sales reveals the following broad trends.
In the periods assessed during 1998 and 1999 there is a clear trend of a rising market up to 35% for each year in the western parts of Yeronga, and along the Brisbane Corso to the north. The south-eastern part of Yeronga adjoining the railway line demonstrates a lower increase at 10% (1998) and 20% (1999). The only sales in Fairfield show a 15% rise in 1998 (Mearns Street) and 20% in 1999 (158 Venner Road). During 1998, areas east of the railway line demonstrated a static market extending through Moorooka, Annerley, Tarragindi and Holland Park West. The sale in Cronin Street, Annerley just east of the Fairfield railway station, and about 150 metres east of Mearns Street, show a rise of 10% during 1998.
On that evidence it could be concluded that Fairfield falls in a zone of change in values considerably less than Yeronga, and perhaps in line with market trends immediately to the west of the railway line. However the paucity of sales in Fairfield, and the less than representative nature of the only two sales available, suggest that an increase of 20% as supplied by Mr O’Donovan in the current matter may not be as conservative as he had concluded.

Comparison of sales -

In considering the sales evidence I note that the most comparable parcel in terms of size is Mr O’Donovan’s Sale 3, (201 Hyde Road). That parcel has had substantial filling in place, and was seen as also impacted by local flooding as demonstrated by the intense downpour of 10 March 2001. While a further $3,000 was allowed for by Mr O’Donovan in recognition of that isolated occurrence, there was no evidence that Sale 3 had been impacted by local flooding previously. Because of the agreed intensity of the 10 March 2001 deluge, I believe all other parcels in the Yeronga/Fairfield area would have been similarly impacted on that occasion.
On that basis I will accept Sale 3 as representing a site, potentially impacted by major periodic river floods, but not subject to the regular local flooding as demonstrated at the subject lands. If I then consider Sale 3 as a vacant filled site for comparison purposes, I could allow a value of $136,000 plus $2,000 for demolition of the old dwelling, or $138,000. By Mr O’Donovan’s comparison that parcel is seen as superior to the subject land due to its superior location in Yeronga.
If I then consider Mr O’Donovan’s Sale 2 at 27 Anita Street ($129,000), and Sale 4 at 89 Ormadale Road ($167,000), I agree that both of those are superior to the subject lands. While both of those sales are much smaller than the subject land, their superior location in Yeronga demonstrates their greater market attractiveness. If I make an allowance for the suggested market variations between Yeronga (35%) and Hyde Road (20%), I could conclude that a parcel of area about 1200 m² and similar to 201 Hyde Road, in a location nearby to Sales 2 and 4, might attract a value of about $138,000 by 115% or $159,000. That is not inconsistent with Sale 4.
If I further consider some allowance for the smaller size of Sale 2 (466 m² - $129,000), compared to the larger Sale 4 (607 m² - $167,000), I could agree that there is some consistency between those parcels, allowing for the respective features of each sale. In the above comparisons I can agree that the subject lands have values less than $138,000 as filled sites, not subject to local flooding.
I turn then to the comparison with the common sale at 158 Venner Road. Mr O’Donovan agrees that sale is inferior to the subject lands. Mr Purcell sees that sale as representing an unflooded residential site in Fairfield, and notes that in his opinion there is about 10% in value between flooded and unflooded lands in that locality. However, because of their larger size and better aspect to Fehlberg Park, Mr Purcell seeks comparability with 158 Venner Road, allowing for the impact of local flooding upon the subject lands.
On balance I would agree with Mr O’Donovan that the subject lands, because of their size and better aspect to park lands, should have values as filled sites considerably more than the analysed value of 158 Venner Road ($78,500). If I seek guidance from Mr Purcell’s Sale 2 (49 Cameron Street), I note that a smaller size (405 m²) in Fairfield was purchased in October 1998 for $80,750. I note also that the market has increased since that date, perhaps even as much as 20% as suggested by Mr O’Donovan. If I allow for that increase at the relevant date of 1 October 2000, then a possible market value of about $100,000 might be applicable for a smaller site at the relevant date.

However Sale 2 (49 Cameron Street) is not subject to regular local flooding. On that basis I believe there is evidence to support values as filled sites without any ongoing impact from local flooding at between $100,000 and $138,000. If I then make some allowance for the smaller size of 49 Cameron Street (405 m²), compared to the 1,214 m² of the subject lands, I feel that a range of value as filled sites in Fairfield could vary between say $120,000 and $138,000.
I then note that Mr O’Donovan believes that his Sale 3 (201 Hyde Road) is about 5% superior to the subject lands, which suggests that the latter could have values as filled sites, not subject to local flooding, at about $130,000. On balance I will accept the figure of $125,000 as a starting point for the subject lands as filled sites, not subject to regular local flooding. If I then apply Mr Purcell’s allowance of 10% for the impact of local flooding (allowing any doubt in the appellant’s favour), I could conclude a value of $112,500 as fill sites which are further impacted on a regular basis by local flooding.

Relativity -

A comparison between the adjoining lands at 213 and 211 Venner Road at $80,000, and the filled local flood prone lands of the subject lands at $112,500, is not inconsistent with Mr O’Donovan’s rough guide on an allowance for difference in size. (ie 1.5 times the smaller parcel). It is noted that 213 and 211 Venner Road contain virtually no filling and are generally free of the regular local flooding impacts. Based upon the unimproved value of $80,000 for 213 Venner Road, its sale price in January 2001 at $133,000, reflecting $53,000 for improvements, is not unreasonable. The subsequent resale of that property after further improvements is not for consideration in the current matter.
Summary:-
In concluding the analysis I believe that as filled sites subject to local flooding, each site could have a value of $112,500. While 221 Venner Road has a more pleasant overall aspect to Fehlberg Park, it is impacted by noise from the cricket practice wickets. If I then make allowance for the filling of those sites in accordance with Mr Dodd’s estimates, I can conclude:

Item	221 Venner Road	217 Venner Road
As filled local flooded site	$112,500	$112,500
Filling	$41,900	$21,050
Unimproved value	$70,600	$91,450
Say	$70,000	$88,000

Conclusion:

Having considered the whole of the evidence I am persuaded that the appellants have partly proved their case. In the matter of AV2001-0209 (Lots 140 and 141 on RP 37247) the valuation as determined by the Chief Executive is set aside, and the unimproved value is determined at Seventy thousand dollars ($70,000). In the matter of AV2001-0210 (Lots 138 and 139 on RP 37247) the appeal is dismissed, and the unimproved value as determined by the Chief Executive in the sum of Eighty-eight thousand dollars ($88,000) is affirmed.

NG DIVETT
MEMBER OF THE LAND COURT