Leach v Chief Executive, Department of Natural Resources

[1997] QLC 195

[1997] QLC 195

 

  LAND COURT

BRISBANE

12 December 1997

Re:                 Appeal against Annual Valuation
Valuation of Land Act 1944
  Valuation Roll No 12641/40240
  Local Government:  Gold Coast City
  (AV97-149).

Thomas G and Beverley A Leach
  v.
  Chief Executive, Department of Natural Resources

(Hearing at Coolangatta)

D E C I S I O N

Background:

This appeal relates to a property located at 39 Claymore Crescent, Bundall, Gold Coast, and described as Lot 458 on RP 127250.  The property has an area of 751 square metres and is located in an estate just south of Ashmore Road, and west of Surfers Paradise.  The land is flat, with an irregular shape widening out to a wider water frontage to a canal at its rear boundary.  The general aspect to the water is between south to south-east.  The only issue relates to relativity with other lots in Claymore Crescent.
           At the opening of the appeal the appellant provided a statement which relied upon the unimproved values of a further five lots, beyond the two properties included in the notice of appeal.  The respondent objected to that additional information, which he claims was outside the initial grounds of the appeal.  The notice of appeal was quite specific in respect of relying only upon two unimproved values of properties in Claymore Street.  However it was ruled that the appeal was intended to seek to demonstrate inconsistencies in relativity, and the additional five unimproved values merely sought to further clarify that matter.
           In the end the respondent led no specific evidence, claiming the appellants had failed to prove their case.
           On 10 March 1997, the Chief Executive issued a valuation at $172,500.  Following an objection, the Chief Executive amended the valuation and on 23 June 1997, re-issued a valuation at $167,500.  The appellants have appealed that figure claiming the valuation should more properly be $157,500.  The formal date of the valuation was 1 October 1996.
           Mr TG Leach, a real estate agent, appeared and gave evidence for the appellants.  Mr P Grennan appeared for the respondent, calling evidence from Mr D Treston, the Departmental Registered Valuer responsible for determining the valuation.

Evidence:
           Mr Leach argues that any fair comparison of similar lots in this vicinity would conclude that the valuation of the subject is too highly valued compared to certain other lots which have a larger area than the subject.  He argues that as the topography of all the canal lots in that area is similar, and virtually flat, the only difference in the valuations should relate to the area of the parcel and the aspect towards the water frontage.  He acknowledges that the preferred aspect to water is from the north to the east, and argues that the less preferred aspect to water is towards the west or the south.
           In his view, a westerly aspect is often preferred to a southerly aspect by purchasers, as at least the western aspect provides some sun exposure to the dwelling.  However, with a southerly aspect there is virtually no direct sun exposure into the building.  For this reason he sought lots in the area, generally with a western aspect, and to compare their areas and unimproved values. 
           Mr Leach provided evidence at:
           Location  Area                Unimproved  Aspect

Value

12 Claymore Crescent  772m²             $144,000  West
           14 Claymore Crescent  782m²             $140,000  West
           16 Claymore Crescent  790m²             $140,000  West
           18 Claymore Crescent  777m²$140,000  West
           70 Claymore Crescent  900m²             $172,500  East

From this evidence Mr Leach concluded that the subject, with an area of 751 square metres, and a southerly aspect, should not have been increased beyond its previous valuation at $157,500.  He did not appeal against the former valuation at 1 January 1996.  However, under cross examination Mr Leach conceded that his above unimproved values were obtained from a computer record from a commercial source provided to his real estate office.  The date of effect of those valuations was 1 July 1996, which supports Mr Grennan's conclusion that the values in fact refer to the previous valuation of 1 January 1996, and not to the current valuation.  Mr Leach confirmed that he had obtained some of his information in preparing for his objection to the Department, prior to lodging his appeal to the Court.
           In respect of his original appeal to the Court, Mr Leach provided evidence of two properties:
           Location  Area  Unimproved            Aspect

Value

32 Claymore Crescent  723m²(Lot 479)          $157,500                   West
           48 Claymore Crescent  809m²(Lot 471)          $162,500                   West

These two valuations apparently do relate to the current valuation of 1 October 1996.  Mr Leach was not able to confirm whether the unimproved values of these two parcels had increased from 1 January 1996, to 1 October 1996.  However, he did not challenge Mr Treston who later gave evidence that the two lots had in fact increased by an overall factor of 10% during that period.
           Mr Treston also advised that in the 1 October 1996 valuation he had made no changes to the relativity between lots in that area, but had applied an overall uniform increase of 10% to the former unimproved values as at 1 January 1996.  This increase had occurred as a result of his analysis of various sales in the locality, which indicated an increase in the market for vacant sites.  However, Mr Treston noted that in comparing the subject to those two sales, Lot 471 is larger, and Lot 479 is smaller than the subject, while both have a western aspect to the water.  Mr Treston also noted that Lot 471 is nearer to busy Ashmore Road which carries heavy traffic as a busy arterial road.  There is likely to be more impact by noise upon Lot 471 than upon the subject.
           Mr Treston's decision to maintain existing relativity between parcels was made in the knowledge that the former relativity had been established at an earlier time based upon a larger range of sales than had occurred prior to the valuation at 1 October 1996.  He believes the current relativity is appropriate.
           In comparing the features of the subject with both Lots 471 (48 Claymore Crescent) and Lot 479 (32 Claymore Crescent), Mr Leach agrees that the subject has a wider quayline frontage to the canal than the other two parcels, as it is fan-shaped and the other two have parallel sides.  However, he maintains that both Lot 471 and Lot 479 have adequate frontage to the canal in order to maintain a boat and mooring.
           Mr Treston also led evidence that the valuation of 70 Claymore Crescent as at 1 October 1996 is now $190,000.  He claims that if the previous valuations of parcels at 12, 14 and 16 Claymore Crescent were updated by 10%, they would all support the current valuation of the subject.  Mr Treston argues that factors affecting his determination of the valuation include its area, aspect to water, the shape of the parcel and frontage to the water.  On all of these factors the subject has been correctly assessed in its current valuation.
           Mr Grennan concluded that the appellant has set himself a difficult task, particularly in view of the paucity of his evidence, in seeking to upset the current relativity with adjoining parcels.  Mr Grennan claims he has therefore been unable to satisfy the requirements of section 45(4) in proving his appeal.  Accordingly it is claimed that section 33 of the Act dictates that the current unimproved value should not be disturbed.  Mr Leach concluded by arguing that in view of the paucity of sales of vacant lots in the area, he had declined to analyse sales of improved lands.  For this reason he had opted to rely on relativity as his only ground of appeal.

Decision:
           In considering first the evidence supplied by the appellant I note that he had correctly sought to compare sales of vacant lands, and having found a paucity of such sales has looked for another method of comparing the valuation of the subject.  As he had no previous experience in this jurisdiction, he was unaware of the need to support his case with well-documented evidence.  Accordingly, the evidence clarifying the exact location and characteristics of the selected lots for comparison purposes left something to be desired.  That the respondent then chose not to lead his own evidence, also made the appellants case more difficult to prove.  In the end the Court was able to gain a clearer picture of the locality of the subject sufficient to be able to determine the matter.
           In this regard it is noted that the Land Court does not have any powers to order the discovery of documents and is constrained to the evidence supplied.  This was noted in Mt Abundance (Freehold) v. The Valuer-General (1926-27) 11 CLLR 11 where the Land Appeal Court said at page 16:

"We do not think that the Act, or the Rules of the Land Court or the Land Appeal Court, provide any machinery for ordering discovery of documents.  We think, however, that under section 32 of the Land Acts we can order the attendance of any witness having custody of documents which we think should be produced.  "

In that matter the Land Appeal Court was referring to "The Land Acts 1910-1924", and the matter of whether further changes to the Land Act had affected the powers of the Land Court were later argued before the Land Appeal Court in DR Cox v. Commissioner of Water Resources (1992-93)(LAC) 14 QLCR 304. In that more recent matter the principle was argued whether the Powers of the Court established under the current section 4(5) of the Land Act 1962, providing for the "Court to be guided by equity and good conscience", did in fact give the Land Court the power to order discovery of documents. The Land Appeal Court found in that matter at page 326:

"For the reasons set out above we have decided that the words 'governed in its procedure ... by equity, good conscience and the substantial merits of the case' in section 41(5)(a) of the Land Act 1962 when considered in terms of their ordinary meaning and their legislative history, and in light of the interpretation of comparable provisions in other legislation, do not give the Land Court power to order discovery.  "

I note also that the Powers of the Court were clarified in JL and I Qualischefski and Others v. The Valuer-General (1979) 6 QLCR 167, at page 172:

"Neither this Court nor the Land Court in the subject jurisdiction may assume the role of an investigating tribunal requiring the Valuer-General to substantiate his case. This is in contradistinction to jurisdiction conferred under the Land Act.

In appeals of the nature of the subject, the onus which the appellant must assume is not an easy one to discharge without the assistance of a registered valuer who can lead evidence as to sales analyses and/or comparison with valuations made by the Valuer-General in respect of comparable properties.  "

In the Qualischefski case, the difficulty that an owner may encounter in conducting his own case was shown to be not an easy matter, and parallels the difficulties currently confronting Mr Leach in this matter.

I turn then to the statement of the appellant, and note that, due to some confusion, the appellant has supplied values which reflect the previous valuation period, and are therefore not relevant to the current matter.  I also note that those former five unimproved values have now been updated by 10% to figures which appear to support the current valuation. 
           In respect of the impact on the valuation by the area of the parcel, I note that "area" is but one factor in determining the appropriate value.  What would appear to be key factors are the relationship of the parcel to the adjoining waterways.  Certainly "dry" lots do not attract the same high value as do lots which adjoin the water.  I note also the arguments in respect of the aspect of the water, and also Mr Leach's opinion that a southerly aspect may in fact be less highly valued by prospective buyers, in view of its lesser capacity for sun exposure.  I note his comments that owners of west facing lots can overcome the glare of the water by suitable shading and protection.
           While there may be some owners who do make such allowances for a western aspect towards the water, I believe in general buyers understand the importance of aspect with canal parcels.  In my view, any moves to compensate against sun glare are usually only undertaken in the light of other potential savings in the purchase price of the west facing lot.  I accept Mr Treston's conclusion that west facing lots are least attractive, even in comparison to a south to south-easterly aspect.  For this reason I believe appropriate allowance of the subject has been made for the impact of aspect to the water.
           Likewise in the matter of area, there would not appear to be any direct percentage increase as parcels increase in size, beyond an acceptable area for an effective building site.  While the impact of increased area of a canal lot has been argued in similar cases, the evidence to justify any variation in the current relativity would require considerably more than was supplied in the current matter.
           In the impact of the fan shape of the subject, as compared to the more regular shapes of 32 and 48 Claymore Crescent, I believe the current shape of the subject would not add much to its value beyond that of a more regular lot.  However, I do accept that a longer quayline frontage to a canal estate lot makes a significant increase on the valuation.  For these reasons I feel Mr Leach has not effectively challenged Mr Treston's appraisal of the subject.

I turn then to the requirements of the Valuation of Land Act, and note that section 45(4) 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.  "

Clearly the burden of proof rests upon the appellants, who have, on the evidence supplied, failed to establish that the Chief Executive has made an error of fact or was wrong in principle.  In this regard I turn to the decision of the High Court of Australia in Brisbane City Council v. The Valuer-General H.C.(1977-78) 140 CLR 41, where Gibbs J. said at page 56:

"In my opinion once it is shown that in making the valuation the Valuer-General acted upon a wrong principle, or made a serious error of fact, the presumption created by section 13(7) is rebutted.  "

Having then concluded that the appellants have failed to prove their case, I note that direction in this matter is then supplied in section 33 of the Act which says:

"Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the chief executive shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered.  "

Conclusion:

Having considered the whole of the evidence I am not persuaded that the appellants have proved their case.  The appeal is dismissed, and the determination of the Chief Executive in respect of Lot 458 on RP 127250 in the sum of $167,500 is affirmed.

(NG Divett)        
  Member of the Land Court