Jowett v Chief Executive, Department of Natural Resources
[1998] QLC 41
•17 April 1998
|
BRISBANE
17 April 1998
Re: Appeal against Annual Valuation
Valuation of Land Act 1944
Valuation Roll No: 3608
Local Government: BCC-Kedron
(AV96-40)
Lloyd P Jowett
v.
Chief Executive, Department of Natural Resources
D E C I S I O N
Background:
This matter relates to a property at 24 Seabrook Street, Kedron, and described as Lot 4 on RP 67389, Parish of Kedron. The land is situated on the western side of Seabrook Street, which is bitumen sealed with concrete kerbing and channelling. Access to the land is good. The land has a regular shape and rises gently from the road to the rear boundary. Water, sewerage, electricity, gas and telephone are available. The key issues are the impact of noise and other pollutants, relativity, comparison of sales, and the objection process. The subject is zoned as "Residential BR4X" under the Town Plan of the Brisbane City Council of 13 June 1987, and effective at the date of valuation of 1 January 1995.
The Chief Executive, Department of Natural Resources, issued a valuation at $64,000 on 20 March 1995. Following an objection, the Chief Executive amended that figure and issued a revised valuation at $58,000 on 6 February 1996. The appellant has appealed that figure claiming the valuation should more properly be $48,000.
Mr LP Jowett appeared and gave evidence on his own behalf. Mr AD Grams appeared for the respondent, calling evidence from Mr M Cowley, the Departmental registered valuer, now accepting responsibility for the valuation.
The Evidence:
Mr Jowett argues that in determining the valuation the Chief Executive has erred in not fully considering all the factors impacting the subject, and has failed to undertake reasonable communications with the appellant in seeking to resolve the objection against the valuation. Mr Jowett argues that an adjoining commercial development to the west of the subject, which causes problems through noise, odours and other pollutants, provides a visual intrusion into views from the subject, and impacts his privacy.
Relativity
To support his estimated valuation at $48,000, the appellant draws relativity with a similar residential parcel at 339 to 341 Gympie Road, Kedron (Lots 5 and 6 on RP 25148 - Ladewig). This has an area of 1040 square metres and fronts both Gympie Road and Seabrook Street. The Ladewig land adjoins commercial property, but does not suffer similar impacts from noise, etc., as the subject. On 1 January 1995, it had an unimproved value of $74,000.
By comparing relativity with the Ladewig land, Mr Jowett adopted two methods to assess the unimproved value. He firstly used a rate per square metre, and then checked that with a proportionate allocation of the value of the Ladewig land. His two calculations provided the following values:
On basis per square metre = $39,561.54 (556 sq.metres)
On proportionate basis = $37,000.00 (520 sq.metres)
He then estimated an approximate value of $40,000 but increased that to $48,000 for the appeal.
Mr Jowett seeks support for his method in the findings of PH Clough v. The Valuer-General (1981-82) 8 QLCR 70, which established that properties should be compared with comparable lands. He interprets that to refer to having to compare the subject with other properties which are impacted by similar impacts of noise and other pollutants.
Relativity was also compared with parcels in Ramsay Street, which is parallel to and east of Seabrook Street, as follows:
Lot Area Unimproved value
26 Ramsay Street (Lot 32) 519m2 $ 59,000
29 Ramsay Street (Lot 59) 526m2 $ 61,000
31B Ramsay Street (Lot 61) 526m2 $ 61,000
55 Ramsay Street (Lot 1) 524m2 $ 60,000
Mr Jowett argues that Ramsay Street does not suffer the same environmental problems as the subject, and therefore the subject should have a considerably lesser value.
The Impact of Noise and Pollutants
The appellants supplied extensive evidence of a variety of penetrating noises which impact the subject from the adjoining commercial complex. These include almost continuous noise from a series of airconditioning units, compressors, a paper-wrapping machine, and the engines and warning mechanisms on cars and trucks and a garbage service which access the complex. The noises were seen to be of a high volume and frequency, and were of a high pitched nature. The construction of the commercial building, and its underground carpark, tended to accentuate these noises, which then passed directly towards the rear of the subject. The only noise amelioration was from a 2-metre fence along the rear of the subject.
The evidence of noise occupied a considerable part of Mr Jowett's evidence, and was not really challenged by the respondent, who agreed that noise from the complex was a problem. However, Mr Gram argues that the intensity of the noises were not as severe as the appellant contends. He also noted that Brisbane City Council records show that at the date of valuation of 1 January 1995, the building did not exist. Mr Jowett does not contest the existence of the building at that date, noting the building was completed in February 1996. However, he argues, that noise from the construction of the commercial building, although only occurring for the period of construction, was of itself intense and very intrusive. It was also confirmed that the two major generators of the noise (fishmarket and convenience store) only commenced operation in February 1996, and December 1995.
Mr Jowett also claims impacts from cooking odours and smoke from an extractor fan which are a constant problem. These penetrate his home and pollute his washing. He also claims that, until recently, light from windows in the complex shone into the subject on a 24 hour basis. They have since been blanketed over or the lights have been turned off.
Mr Grams argues that traffic noise from Gympie Road also impacts the subject, but no more than for adjoining parcels west of Seabrook Street. He draws attention to the difference in relativity between parcels west of Seabrook Street and those east of the street. The latter tend to have values higher than the former, due to the variations in the impact of noise from traffic along Gympie Road. The parcel immediately opposite the subject (Lot 3 on RP 56957 - area 607 square metres) has an unimproved value of $70,000.
Mr Jowett, however, argues that the shape of the brick walls of the commercial complex tend to act as "sounding boards" and bounce off the noise, thus attenuating the intensity of the sound. He also agrees that the 2-metre fence was constructed after the relevant date of valuation.Comparison of Sales -
Mr Jowett provided no sales to support his determination which was based upon relativity alone. Mr Crowley provided the following comparable sales:
• Sale 1 - (5 Awaba Street, Wavell Heights - Lot 83 on RP 808959).
This is a 400 square metre site located approximately 2.2 kms north-east of the subject. All services are available and vehicular access is good to Awaba Street which is bitumen-sealed with concrete kerbing and channelling. The sale has a regular shape, is an inside lot, and has a gentle cross slope and good elevation. The sale is seen as superior to the subject because of the impact of Gympie Road, and the lower elevation of the subject.
The sale is zoned as "Residential A" and was sold in March 1994 for $75,000, which after allowing for improvements was analysed at $74,350, and applied at an unimproved value of $72,000.
•Sale 2 - (6 Melanie Street, Nundah - Lots 2 and 3 on RP 34015).
This is a 427 square metre site located approximately 2.7 kilometres east of the subject. All services are available and vehicular access is good to Melanie Street which is bitumen sealed with concrete kerbing and channelling, although Melanie Street provides only one-way access to Sandgate Road. The sale is irregularly-shaped, near-level, with a low elevation, and faces a concrete retaining wall supporting Sandgate Road on the opposite side of Melanie Street. The sale is seen as slightly superior to the subject, although it has a smaller area, and is more adversely impacted by traffic noise, and has a lesser aspect.
The sale is zoned as "Residential BRX" and sold in September 1994 for $63,000, which after allowing for improvements was analysed at $62,350, and applied at an unimproved value of $59,000.
Nature and Use of the Land -
It was agreed that the land falls about 2 metres from west to east towards Seabrook Street, and overall there is a further fall of 5-6 metres to Ramsay Street. Gympie Road is an elevated roadway about 2 metres above the subject. The subject and adjoining 26 Seabrook Street are virtually comparable parcels.
Mr Cowley argues that while the subject is zoned as "Residential BR4X", and as such the zoning could allow unit development, because of its small size, it has been valued under Section 17(1) of the Act as a single residence site only. This means that the subject has been afforded a concessional valuation with all potential for further development not considered.
The Objection Process -
The construction and impact of the adjoining commercial development has been a matter of major concern to the appellant since he was first notified of the rezoning of that land in October 1993. The development proceeded, in spite of an objection against the rezoning by the appellant, and, in the opinion of the appellant, has failed to meet the initial expectation of a "low key" nature, or that "adjoining residential amenity is not adversely affected in any measurable way".
While those matters may assist in understanding the background to this appeal, their historical nature provides little assistance in determining the valuation. However, it is against that background that any lack of communication between the parties should be considered.
Mr Cowley advises that a letter to the appellant (9 August 1995) had been sent from the Chief Executive establishing an objection conference in respect of the appeal. Mr Jowett was unable to attend at the proposed time, and requested a rescheduling of the conference (21 August 1995). In a letter of 3 October 1995, the Chief Executive asked the appellant to contact the Department in order to arrange a suitable date and time. There was no response to that letter, and the objection was determined without a conference. Mr Jowett argues that, for whatever reason, he has no record of ever receiving that letter, and he believes that the Chief Executive should have sought further contact with the appellant in view of his letter of 21 August 1995.
Mr Cowley advises of unsuccessful attempts to contact Mr Jowett by telephone. Mr Jowett confirms that he has no telephone service to his residence. Several inspections were made by valuers of the Department, however no successful conference occurred. Mr Jowett agreed that there had been some fault by both parties in this lack of communication, but felt that the matter may have been resolved had a conference been arranged.
Impact of Sewerage Pipe -
It was confirmed that an existing sewerage pipe at 1 January 1995 was located within the subject, close to the northern boundary. This pipe is part of the sewerage reticulation system vested in the Brisbane City Council, and although not specifically protected by registered easement in favour of the Council, provides some physical disability to the full use of the land. There is no indication of the distance of the pipe from the northern boundary, but the normal distances in order to allow physical access by Council for maintenance purposes is most likely. The pipe provides sewerage connections to the adjoining commercial complex to the rear of the subject. There is no similar pipe located in the adjoining property (Lot 3) to the north of the subject.
Mr Cowley argues that, as the pipe is near to the boundary, access to it would be covered within the normal setback requirements of Council from that boundary. As the subject has been valued as a single house site, Mr Cowley sees the pipe as not influencing the valuation. However, he did agree that the values of the two adjoining properties at 1 January 1995 were:
Lot 4 (24 Seabrook Street) $ 58,000
Lot 3 (26 Seabrook Street) $ 61,000
He was not aware of why the two similar lots should have different values, but advised that in a subsequent valuation both properties were valued at the same level.
Decision:
Before considering the evidence, I note first the issue of jurisdiction in this matter. The task before me is to determine the valuation of the subject at the date of valuation of 1 January 1995. I am therefore bound by precedent and legislation to consider all matters relating to the valuation of the land up to the date of issue of the valuation on 20 March 1995. Precedent for this may be found in KP and RD Weisenberger v. Valuer-General (1978) 5 QLCR 125, and later confirmed in RG McMurray v. Valuer-General (1983) 9 QLCR 35, where the Land Appeal Court found at page 36:
"As is stated in the decision handed down by the learned President, the Land Court, and on appeal the Land Appeal Court, can only consider the primary production activities carried on on the land between the date of valuation (31st March 1980) and the date of the issue of the valuation (12th February 1981). "
As the adjoining commercial complex was not completed until February 1996, the evidence of noise from operating fans, airconditioners, extractors, and vehicle movements associated with the building, are not matters of which I can consider. However in the context of subsequent valuations their intensity of impact upon the subject would be considered at that time. Any possible attenuation of road traffic noise from Gympie Road as a consequence of the existence of the new commercial complex is also not a matter for current consideration.
Relativity -
In seeking relativity with 339 to 341 Gympie Road (Ladewig), Mr Jowett has sought to compare properties with comparable disabilities from adjoining lands. Indeed his reliance on the findings of PH Clough v. The Valuer-General supra, cite the importance of comparing lands of comparable quality and situation. While that logic is sound, his total reliance on that relativity has led him to compare the unimproved value of the subject, with the unimproved value of the Ladewig property at $74,000, for a site nearly twice the area of the subject.
In seeking to resolve that difference in area, Mr Jowett then sought to rely upon a comparison on the basis of a rate per square metre, or a proportionate basis. In reality, both approaches are virtually the same, and are based upon a rate per unit area of the land. To support this approach, Mr Jowett sought comfort in the findings of Sinnott Pty Ltd v. Chief Executive, Department of Lands (AV93-520), 6 September 1995, unreported; and also in EF Hindley v. Chief Executive, Department of Natural Resources (AV96-307), 15 October 1997, unreported. If I consider first the Sinnott matter, I note that referred to a parcel at 79 Ryan Street, West End, and involved a valuation of the land at its highest and best use as a multi-unit development site, under its zoning of "Residential BR4". That land had an area of 1,373 square metres, and the parties sought comparisons either upon gross floor area (GFA) of any potential development, or the unit rate per square metre of the site. In the context of that matter the unit rate determination was an appropriate method.
In the matter of Hindley, the appeal involved a residential parcel at Mossman, where the appellant argued comparison on a rate per square metre basis. The learned Member found that such a method, in the circumstances, was inappropriate, and he adopted the alternative approach of the respondent in comparing the land on a site-to-site basis. In the end I find this reference provides no support for Mr Jowett, and in fact rejects his method of a rate per square metre.
In considering the Sinnott findings, I find that there is no real comparison with the subject, as Mr Cowley has valued the land under Section 17(1) of the Act as a "single residential site" in view of its small size. In this regard I note Section 17 states:"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. "
Clearly there was no consideration made of any potential for a higher use, and the best guidance is to be found in H & E Grahn v. Valuer-General (1992-93) 14 QLCR 327, where the Land Appeal Court said at page 330:
"The appellants fail on this point because the appropriate basis for the valuation of a residential lot is not the application of a rate per square metre but an assessment of the unimproved value of each lot as land used for single unit residential purposes. "
In considering relativity between the subject and parcels east of Seabrook Street, I note that the valuations to the east are higher because of their further removal from Gympie Road. In comparing the valuation of the adjoining parcel to the north (26 Seabrook Street), I find that the difference of $3,000 between that, probably reflects the existence of the sewer pipe through the subject. On the basis of relativity, therefore, there is no reason to conclude that the valuation has not considered the various disabilities of the subject.
Comparison of Sales -
I note that Mr Cowley has sought to compare the land with two sales of comparable parcels. Sale 1 is seen to demonstrate what a superior site would sell for in an elevated position without the impacts of pollution. Sale 2 has similar noise and traffic impacts, but is still seen as slightly superior at an analysed value of $62,350. By comparison with those sales, the valuation of the subject would appear reasonable.
I note also that in relying upon sales of comparable vacant lands, Mr Cowley has adopted a principle supported by the courts. I note for instance that approach was adopted in NR and PG Tow v. Valuer-General (1978) 5 QLCR 378; and again in R and MM Barnwell v. Valuer-General (1990-91) 13 QLCR 13. However it is best explained in the matter already referred to by the appellant in PH Clough v. Valuer-General (supra), where the Land Appeal Court said at page 76:"It has been judicially laid down many times and in many jurisdictions that in ascertaining unimproved value, sales of unimproved land of comparable quality, situation, etc., to the subject parcel, if they are available, are to be preferred as the best guide for arriving at unimproved value. The reason is obvious. In applying such sales there is no room for error in analyzing the value of improvements. "
The Impact of Noise -
While noise from the adjoining building has already been rejected as not relevant at 1 January 1995, there is the matter of noise and reverberations from the construction activities at that time. I accept the respondent's advice that the noise was temporary as it occurred only during the construction stage, and therefore has not an ongoing impact upon the land. However, I also note that construction occurred over a period of twelve months and, in the context of an annual valuation, it would be hard to convince the appellant that the subject was not impacted by noise at that time.
However, noise, by its nature, obeys the physical laws of radiation, and the subject would not have been subjected to any special disability because of its location in relation to the development. It is likely that all adjoining parcels would have also been likewise impacted. In the absence of any specific evidence on the construction noise, I am therefore able only to conclude that the valuations of all surroundings were treated consistently in respect of that noise.
The Objection Process -
I note the lack of any meaningful objection conference, and would agree with the appellant that, had a conference occurred, then much of the current matter may have been resolved. I also note that the appellant agrees that both parties had in part contributed to something less than a full and frank communication on the matter.
I note that the Chief Executive has the capacity to determine an objection without a conference under Section 53 which states:"53.(1) The chief executive shall with all reasonable dispatch consider an objection under section 52, and may either disallow or allow it in such manner and to such extent as the chief executive deems proper.
(2) The chief executive and the owner may, by mutual consent, confer before the chief executive makes a decision upon the objection. "
However, I can only repeat that a free flow of information can only lead to an improved understanding between the parties. There is, in my opinion, responsibility on both parties to ensure that they understand the concerns of the other. While that may still not resolve the issue, it has the potential to limit the dispute.
Summary:
In determining amendments or alterations to the valuation, the onus of proof rests upon the appellant under section 33 of the Act which states:
"33. Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the chief executive shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered. "
I note also that in determining an appeal against a valuation the burden of proof also lies with the appellant under section 45(4) which states:
"45.(4) Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner. "
In the current matter the method of comparison of sales by the respondent has not been challenged by the appellant.
Conclusion:
Having considered the whole of the evidence, I am not persuaded that the appellant has proved his case. The appeal is dismissed, and the unimproved value as determined by the Chief Executive, Department of Natural Resources, at $58,000 is affirmed.
(NG Divett)
Member of the Land Court
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