Jaensch v Chief Executive, Department of Lands
[1995] QLC 93
•31 August 1995
|
BRISBANE
31 August 1995
Re: Appeal against Annual Valuation -
Valuation of Land Act 1944 -
City of Rockhampton.
(AV94-464).
Debra Joy Jaensch
v.
Chief Executive, Department of Lands
(Hearing at Rockhampton)
D E C I S I O N
Ms Jaensch is the owner of land described as Lot 1 on RP 609663, Parish of Rockhampton, containing an area of 690 square metres. Under the provisions of the Valuation of Land Act 1944, the respondent valued the subject land as at 30 June 1993 at $45,500. Ms Jaensch objected to this valuation and by a notice of decision which issued on 27 June 1994, the objection was disallowed.
Under the provisions of s.16J(1) of the Act, an owner who is dissatisfied with the decision of the Chief Executive upon the objection may appeal to the Land Court against the valuation within 28 days after the date of issue of the notice of the Chief Executive's decision upon the objection. In this case, that 28 day period expired on 25 July 1994. However, at approximately 8.50p.m. on 27 July 1994, a facsimile of a completed notice of appeal and accompanying papers were received on the facsimile machine of the Registrar of the Office of the Land Court in Brisbane. Then on Monday, 1 August 1994, the original notice of appeal and accompanying papers were received by post at the Office of the Registrar.
The Jurisdiction of the Court
The Registrar advised Ms Jaensch by letter dated 10 August 1994, that the appeal was out of time. Ms Jaensch replied that when the appeal was called on for hearing she would endeavour to satisfy the Court that the failure to institute the appeal within the time prescribed was caused by undue delay in the transmission of mail in the ordinary course of post.
At the hearing, Mr PH Boyle appeared as agent for Ms Jaensch. Mr Boyle submitted that the failure to institute the appeal within the time prescribed was caused by undue delay in the transmission of mail in the ordinary course of post. He submitted that the notice of decision on objection which issued on 27 June 1994 was not received until 1 July 1994, a delay of four days. Mr Boyle had checked with the postal authorities and ascertained that the delivery time of mail from Brisbane to Rockhampton was a maximum of two days. Therefore, he submitted that there was undue delay of two days in the transmission of mail.
In such circumstances, a landowner would still have more than three weeks in which to lodge an appeal, so it could not normally be said that a delay of two days in the arrival of the notice would result in the failure to institute the appeal within the prescribed time. However, in this case Ms Jaensch left Rockhampton on holidays on 28 July 1994 for a period of approximately one month and, according to Mr Boyle, was not contactable during that period.
Mr Boyle, who was acting as agent for Ms Jaensch in this matter, completed the notice of appeal and dated it 12 July 1994, but, understandably, he did not forward it until Ms Jaensch had a chance to peruse it. He faxed the appeal as soon as possible after her return, which explains the date and time of the facsimile received in the registry on 27 July 1994.
The reasoning of the Land Appeal Court in Fischer v. Valuer-General (1990) 13 QLCR 129, is relevant in these circumstances. There it was held that the provisions of the Act in this regard are not confined to delay in the transmission of mail in the ordinary course of post of notices of appeal to the Land Court. Accordingly, there is no reason why undue delay in the transmission of mail from the Chief Executive to the owner cannot cause a failure to institute the appeal in time.
The statements by Mr Boyle were not contested by the representative of the Chief Executive and, while I have some reservations about this matter, it is just possible that if the notice of decision had arrived on 29 June 1994, Mr Boyle could have contacted Ms Jaensch at the beginning of her travels and received instructions about lodging the appeal. However, two days later Ms Jaensch was well into her journey and, according to Mr Boyle, was not contactable.
In Fischer's case, there was a delay in receipt of the notice of decision upon objection and this, combined with the personal circumstances of the owner, resulted in failure to lodge the appeal in time. Similarly, in this case there has been undue delay of the notice of decision upon objection and this, combined with the circumstances of the owner, resulted in failure to lodge the appeal in time.
It has been held on many occasions that the procedure set forth in the Valuation of Land Act for the institution of appeals against decisions of the Chief Executive are mandatory. However, it seems to me from the reasoning of the Land Appeal Court in Fischer's case, that where there has been undue delay in the transmission of mail in the ordinary course of post, the Court should not adopt an unduly restrictive approach to the facts of the case. In other words, the Act makes provision for a period of 28 days in which to lodge the appeal. This period is reduced in every case by the transmission of the notice of decision by mail and, usually, by the transmission of the notice of appeal by mail. Such reductions of the 28 day period are unavoidable because of the time required for the transmission of mail in the ordinary course of post. However, where the period is further reduced because there is undue delay in that process, the owner should be given the benefit of any such undue delay.
Therefore, in the circumstances, Mr Boyle has satisfied me that there has been undue delay in the transmission of mail in the ordinary course of post and I find that this Court has jurisdiction to deal with the appeal.
The Appeal
The notice of appeal lodged on behalf of Ms Jaensch stated that, in the owner's opinion, the valuation should be reduced to $35,000, compared with the valuation applied by the respondent of $45,500. Attached to the notice were a number of grounds of appeal upon which Mr Boyle elaborated at the hearing.
The Amenity of the Area: Mr Boyle explained that when the owner purchased the property in 1989, all but one of the surrounding houses were owner occupied. Since then, several have become rental houses with a consequent deterioration of the amenity of the neighbourhood.
Aircraft Noise: Mr Boyle, who has experience in aviation, gave evidence about the increasing noise from both civil and military aircraft. He explained in some detail the increasing use of the Rockhampton airport by military aircraft, both RAAF and overseas Air Forces, particularly the Singaporean Air Force.
It appears that the subject land is directly under the flight path for incoming military aircraft from the Shoalwater Bay training area. According to Mr Boyle, it is directly below the critical point where the aircraft turn on their landing approaches and, in doing so, apply power, with a consequent escalation in the volume of noise. He tendered evidence of the flight paths, the noise volume and the increase in the number of military movements at the Rockhampton airport from 1990 to 1994.
In addition to this noise nuisance, Mr Boyle said that the subject land also suffers from noise from commercial aircraft, as a commercial aircraft flies directly overhead at 9p.m. nightly and has done so for the last 18 months. Mr Boyle explained that other civil aircraft are not such a problem, as this flight has to take that particular flight path, because at that time there are no air traffic control personnel on duty.
The Problems of Bowen Terrace: The subject land is situated in Bowen Terrace, a one-way street, which Mr Boyle said is particularly dangerous, as a lot of traffic use the street in an irresponsible manner. First, vehicles travel at excessive speed and second, there is an ongoing problem with traffic using the street the wrong way. To compound the problem, Mr Boyle said that vehicles park correctly on one side of the street and incorrectly on the other. This, combined with the crest of a hill, creates a dangerous situation, particularly on winter afternoons when a driver's vision is obscured by the western sun.
These problems with Bowen Terrace make it difficult and dangerous to exit the subject land, Mr Boyle said. Although there has been no accident on this street as yet, he is concerned that the potential exists for a very serious accident.
The Valuation
Mr Boyle explained that the owner's estimate of $35,000 for the unimproved value of the subject land was the valuation for the previous year. Although he was unable to assist with details of sales of unimproved properties in the area, it appears that the owner felt that the valuation should not have increased.
The Respondent's Evidence
Ms PA Quinlan, a registered valuer employed by the Department of Lands, gave evidence on behalf of the respondent. Ms Quinlan's report states that the land has an area of 690 square metres, is zoned "Residential A" and is situated at 14 Bowen Terrace, approximately 2.5 kms south-west of the Rockhampton Post Office. Bowen Terrace is described as a one-way, full width bitumen street, with concrete kerb and channelling. The property is used for residential purposes.
Ms Quinlan's report describes the subject land as comprising a regular shaped, well drained, elevated block, with a moderate cross fall from north-east to south-west. It has a southerly aspect, good outlook and extensive views to the south-west and west. Town water, electricity, telephone, gas and garbage collection services are available.
Ms Quinlan valued the subject land at $45,500 by direct comparison with three sales in the area. Sale No 1 is situated in Eton Street, has an area of 800 square metres, is zoned "Residential A" and sold in December 1992 for $39,500. An unimproved value of $36,500 was applied to this property in the 1993 valuation.
Ms Quinlan described this property as a regular shaped block with a gentle fall from north to south. It has a westerly aspect to Eton Street, which is a fairly busy two-way street. It has no views and a very limited outlook to the surrounding residential area. Surrounding development is a Housing Commission-type development of mostly older houses. Having regard to all these aspects, she considers that the sale is inferior to the subject land.
Sale No 2 is situated in Jeffries Street, has an area of 641 square metres, is zoned "Residential A" and sold in August 1992 for $38,000. An unimproved value of $34,500 was applied to this land in the 1993 valuation. Ms Quinlan described this land as an irregular shaped block, well above street level, falling steeply from east to west. The sale has a westerly aspect, is located in a cul-de-sac with very limited traffic and has a good outlook with views to the west. However, overall she considered the sale to be inferior to the subject property.
Sale No. 3 is situated in Herley Street, has an area of 690 square metres, is zoned "Residential A" and sold in July 1992 for $65,000. An unimproved value of $54,000 was applied to this land in the 1993 valuation.
Ms Quinlan described the land, the subject of this sale, as a regular shaped block with a gentle fall from east to west. It is well located, has a southerly aspect and a good outlook with good views to the west. She explained that Herley Street is a very narrow two-way street which, she thought, would result in some difficulty in accessing the sale land. She reasoned that as it is a higher elevated block, with good surrounding development and better located, she considered the sale to be superior to the subject land.
Mr Boyle knew of the properties the subject of Sales Nos. 1 and 3, and was generally aware of the area of Sale No. 2. He was therefore able to comment on the relative merits of these properties, particularly in relation to the traffic and the other problems experienced in Bowen Terrace.
Ms Quinlan was also well aware of the aircraft noise and, while she admitted that she was not familiar with the detailed flight paths of various aircraft, she felt that the problem with noise applied to the sale properties as well.
From the evidence of Mr Boyle and Ms Quinlan, I have come to the conclusion that Bowen Terrace suffers more traffic problems than any of the sales. I also accept that the subject land is situated in a position where it may well experience a higher volume of noise from military aircraft than any of the sales. However, the evidence indicates that the sales would also suffer from aircraft noise.
While Mr Boyle is very concerned about the traffic situation in Bowen Terrace and has graphically described the problems with aircraft noise, in the present appeal the real test is how much less a prudent purchaser would pay for the subject land in its unimproved state, if that person was aware of those problems.
It is always difficult to try to translate the matters which have been explained by Mr Boyle into monetary figures. In some cases, appellants are able to produce sales evidence which will conclusively show that properties with more severe problems sell for less in the market place. However, that is not so in this case.
Unfortunately, Mr Boyle was unable to provide me with assistance from sales.
On the other hand, Ms Quinlan has approached the valuation in the manner that has been approved by courts of the highest authority, by directly comparing the subject land with sales of vacant land in the area. It is clear from her evidence that she has considered the attributes of both the sales and the subject land and, while she could not be expected to have the detailed knowledge of the subject land that Mr Boyle does, she was aware of the differences between the sales and the subject and has made adjustments accordingly. After hearing her evidence, I have come to the conclusion that the valuation of $45,500 for the subject land is fair and reasonable.
The provisions of the Valuation of Land Act cast upon the appellant the burden of proving that the valuation is not correct. After considering the whole of the evidence, I have come to the conclusion that the appellant in this case has not discharged that burden. I am of the opinion that if the subject land was offered for sale in its unimproved state as at 30 June 1993, on the evidence derived from the three sales it would have sold for at least $45,500.
Accordingly, the appeal is dismissed and the valuation of the Chief Executive is affirmed at Forty-five thousand, five hundred dollars ($45,500).
Member of the Land Court
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