Lindley v Chief Executive, Department of Natural Resources
[2000] QLC 5
•28 January 2000
|
BRISBANE
28 JANUARY 2000
Re: Determination of Unimproved Values
Local Authority: Maroochy
(AV98-718) and AV99-1512)
Norman H and Dorothy B Lindley
v.
Chief Executive, Department of Natural Resources
(Hearing at Maroochydore)
D E C I S I O N
Two appeals have been filed by Mr and Mrs Lindley against determinations of unimproved values for a "Residential A" zoned parcel of canal-frontage land situated at 23 Moondarra Crescent, Mooloolaba. The land is described as Lot 444 on RP129651, Parish of Mooloolah, and contains an area of 728 m². The respondent Chief Executive has determined the unimproved value in the sum of $110,000 as at the relevant dates of 1 October 1997 and 1 October 1998. The appellants contend within the respective notices of appeal for an unimproved value of $100,000 as at the relevant date of 1 October 1997 and of $90,000 as at the relevant date of 1 October 1998. The respondent Chief Executive has determined the unimproved value as follows:
Value unimproved, without disabilities
(allowing for easement encumbrance) $122,000
Allow –
Additional imported fill $4,000
Seepage $2,000
Contingencies – for any further
potential unknown problems $6,000 $12,000
$110,000
Norman Harry Lindley furnished evidence in support of the grounds of appeal. He produced and displayed a video tape narrated by himself showing various features and disabilities suffered by the subject land. Perhaps the greatest disability is that the land is encumbered by a drainage easement in favour of the Maroochy Shire Council which traverses the land along its entire eastern boundary. The easement is 3 metres wide and is traversed by an underground drainage pipeline which carries surface run-off water which collects as the lowest point in Moondarra Crescent, which is in front of the subject land. There are drainage grates in the street which collect rubbish after periods of rain. The drainage water discharges into the canal at the rear of the property where the drainage outlet has been lowered of recent times to the below the sand abutting the canal revetment wall. There is a manhole at the canal end of the drain and the manhole cover has on one occasion, about two years ago, blown off due to water pressure.
A further problem with the drainage is that there was, during the construction of the estate, an open drain running across five allotments either side of and across the subject land. This drain has been filled but Mr Lindley says there is constant seepage of ground water onto his land through the rubble fill. In addition, overland water flow from a tap left on in the neighbouring property has on one occasion entered his property. Mr Lindley has placed a drainage line from beneath his house which discharges through a 2-inch (50-millimetre) outlet pipe onto the beach. He has measured the outlet flow from the pipe on five consecutive days from 17 June 1999 to 21 June 1999 over a six-minute period and he calculates that the average discharge during that period was 547.8 litres per day.
Other problems with the site as outlined by Mr Lindley include the invasion of his land by vermin (rats) from the canal, and pollution in the canal.Mr Lindley has visited the sales evidence canal frontage lots relied upon by the respondent Chief Executive and which will be tabulated later in this decision. He says that the Chief Executive's Sale No 1 land is a fairly level site rising from the roadway with a better canal frontage, not like the subject land which he describes as falling from the street frontage to the canal. He sees Sale No. 3 land to have the advantage of being opposite a large park, and that Sale No. 4 is a higher lot.
Mr Lindley tendered in evidence a series of 10 photographs illustrating the disabilities raised by him.
Mr Lindley informed the Court that the valuations of the adjacent No. 21 Moondarra Street is $132,000 as at both relevant dates, and that of No. 25 Moondarra Street is $130,000. Neither of these sites have a drainage easement and Mr Lindley says they do not have the same drainage problems. Mr Lindley claims that the drainage easement, which occupies about 120 m², deprives the appellants of the use of 10% of the site for building purposes.
Mr Lindley was at length to tell the Court that the existence of the drainage easement precludes the economic development of a boat ramp, jetty or pontoon. If the site was vacant, then access to the ramp site on the western side of the allotment would mean that the building area on the site would be further restricted.
Mr Lindley has obtained copies of departmental files as a result of action he took under the Freedom of Information Act. Copies of two sheets of notes handwritten by the valuer responsible for these assessments were placed in evidence. They indicate that apparently in about 1992 consideration was given by the valuer to using a method other than the direct comparison with sales evidence was used to brief counsel for a previous Land Court case. It involved estimating the market value of the subject property in the sum of $220,000 and deduction therefrom of a depreciated value of the improvements on the land in the sum of $107,000 – resulting in an unimproved value of $113,000. I note that most of the structural improvements were depreciated at that time by a factor of 30%. But the document also indicates the view of the valuer concerned that that method of valuation was very difficult for both the valuation of improved properties as well as analysing to unimproved value owing to the determination of the obsolescence factor, and that a valuation using that method can only be done with assurance by comparing like with like. With these remarks I entirely agree.
Mr Lindley estimates the value of the subject land on two bases. Firstly he adopts the proposed sale price from the discovered document of $220,000 and subtracts therefrom the replacement insurance value of the improvements in the sum of $186,000 – and this exercise shows very much lower land value than the appellants contend for in the respective notices of appeal. Mr Lindley believes the suggested sale price of $220,000 is supported by the averaging of sales of improved properties in Moondarra Crescent
The second, and as it transpired the primary basis of assessment, is to adopt an unimproved value of $130,000 in comparison with the adjoining lots, and deducting a factor of 30% for the easement encumbrance and drainage problems. The 30% factor is made up of 17% for the easement, 10% for drainage and 4% for manholes and canal disabilities. I note that this exercise results in an unimproved value of $91,000 for the subject land.
The respondent Chief Executive called in evidence registered departmental valuer Maxwell John McLaren who is responsible for the unimproved value determinations under appeal. Mr McLaren describes the subject property in its original state as being approximately 0.6 metres below street level at its front boundary. It is situated at the base of a ridge, merging to low-lying ti-tree country approximately 2.5 metres below street level at its rear boundary. Mr McLaren confirms that the subject land is encumbered with a 3-metre wide underground piped drainage easement running the full length of the eastern boundary.
The sales evidence relied upon by Mr McLaren for his valuations is:Sale No. 1 – Lot 70 on RP 174076 – 743 m² – Weckert to Princehorn Developments Pty Ltd on 30 May 1997 for $165,000 – analysed unimproved value $150,500 – applied unimproved value $130,000 – situation Balyarta Crescent.
Mr McLaren describes this land as being situated slightly towards the end of a finger canal at the far north-west corner of the Mooloolaba canal system. It has a northerly aspect with a fair water outlook and relatively good water access. It is however, situated immediately opposite multi-unit development. The sale land in its filled state batters away at the rear of the site to a low reinforced concrete revetment wall on the rear boundary. This site is also encumbered by a 3-metre wide underground piped drainage easement to the full length of its north-western boundary.
Mr McLaren sees the Sale No. 1 land as having a marginally inferior water outlook to the subject land owing to its location towards the end of a finger canal but this is negated by its superior north-easterly aspect. It has slightly superior water access and is situated amidst slightly newer development, but this is detracted by the element of unit development immediately opposite.
Mr McLaren sees Sale No. 1 land to be marginally superior to the subject land.
Sale No. 2 – Lot 73 on RP 174076 – 743 m² – Verrall to Reimann on 21 February 1997 for $162,500 – analysed unimproved value $148,000 – applied unimproved value $140,000 – situation Balyarta Crescent.
Mr McLaren describes this property as being fairly centrally situated within a finger canal at the far north-west corner of the Mooloolaba canal system. It has a north-easterly aspect with a fair water outlook and relatively good water access. He says however, it is situated immediately opposite multi-unit development. The sale land in its filled state batters away at the rear of the site to a low reinforced concrete revetment wall on the rear boundary.
Mr McLaren sees this sale property as having a similar central canal location as does the subject land, along with a similar quality water outlook. The sale property has a slightly superior north-easterly aspect and water access. It is situated amidst slightly newer development, but is detracted by the element of unit development immediately opposite. Mr McLaren sees this sale property as being overall superior to the subject land.
Sale No. 3 – Lot 543 on RP 128808 – 728 m² – Lawson to Cranshaw on 15 November 1997 for $160,000 – analysed unimproved value $150,000 – applied unimproved value $132,000 – situation Yulunga Place.
Mr McLaren describes this property as being situated towards the end of a short finger canal in a central position within the Mooloolaba canal system. It has a westerly aspect with fair to poor water outlook and a fair to poor water access. In its filled state, the land batters away to a non-revetted rear boundary. It is encumbered by a 3-metre wide underground drainage easement running the full length of its northern side with a protruding drain which does not extend to low water, and this exacerbates beach erosion.
Mr McLaren sees the sale property as being more centrally located within the canal system but it does not have a good water outlook and its water access is affected by periodic shoaling. Mr McLaren points out that the sale property has a less desirable westerly aspect. It is also encumbered by an underground drainage easement and Mr McLaren considers the sale property as being marginally superior overall when compared with the subject land.
Sale No. 4 – Lot 519 on RP 128808 – 728 m² – Fletcher to Cheney on 26 September 1995 for $160,000 – analysed unimproved value $150,000 – applied unimproved value $144,000 – situation Awoonga Place.
Mr McLaren describes this sale property as being situated centrally within the Mooloolaba canal system and centrally situated on a main canal. It has however, a westerly aspect with fair water outlook and fair to good water access. The sale property, in its filled state, batters away to a non-revetted rear boundary. This sale land is also encumbered by a 3-metre wide underground drainage easement running the full length of the southern boundary.
Mr McLaren describes this sale property as being more centrally located within the Mooloolaba canal system and has a similar water outlook and access. It has a less desirable westerly aspect and is also encumbered by an underground drainage easement. Mr McLaren considers this sale property as being overall superior to the subject land.
Mr McLaren believes he has taken into account adequately the disabilities raised by Mr Lindley. He points out that Sales Nos. 1, 3 and 4 have easements for drainage purposes in favour of the Maroochy Shire and as such reflect values of land encumbered by drainage easements.
Mr McLaren says that the allowance for additional filling ($4,000) was made following a submission by Mr Lindley that there was a requirement to bring a further 200 m³ of compacted fill to the subject land. He allowed fill costs at the rate of $20 per m³. As for his allowance for seepage ($2,000) Mr McLaren has estimated the costs of putting place an agricultural drain around the perimeter of the site except for the canal frontage – 0.45 metres wide, 1 metre deep with an agricultural pipe at the base. He thinks that this would be a prudent method of providing for additional drainage. His allowance for contingencies ($6,000) is for nothing specific but he thought that Mr Lindley's continued presentation of problems warranted some additional allowance.
There is no doubt that the subject land suffers from the disabilities raised in evidence by Mr Lindley, the task of the Court is to determine the unimproved value of the subject land taking into account these disabilities. Based on the sales evidence introduced by the respondent Chief Executive, I have no hesitation in concluding that the unimproved value as assessed by Mr McLaren prior to his allowances for disabilities in the sum of $122,000 is fair and reasonable. With this conclusion Mr Lindley would agree as his main basis for the determination of the respective unimproved values is the adoption of an unimproved value of $130,000 prior to making disability allowances.
With regard to the allowances made for the disabilities, I prefer to rely upon the estimates made by Mr McLaren since they are more specific than the suggested allowance of 30% made by Mr Lindley. For this reason I cannot come to a conclusion that the unimproved values under appeal are excessive or unreasonable.
But before proceeding to my formal determinations, I should comment that the reference by Mr Lindley to the improved value of the subject land as disclosed by his searches of departmental records under the Freedom of Information Act is not helpful to me in my task of determining the unimproved value. It has often been commented by the Land Appeal Court and this Court that the best basis of valuation when the task at hand is the determination of unimproved value is the use of sales of unimproved or lightly improved property.
My formal determination is –
Both appeals are dismissed, and the unimproved value of Lot 444 on RP 129651 as at the relevant dates of 1 October 1997 and 1 October 1998 is determined in the sum of One Hundred and Ten Thousand Dollars ($110,000).
CH CARTER
MEMBER OF THE LAND COURT
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