Look v Chief Executive, Department of Natural Resources
[1999] QLC 115
•28 October 1999
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BRISBANE
28 October 1999
Re: Determination of Unimproved Values –
City of Brisbane – Division of South Brisbane –
(Refs. AV98-773 and AV99-39).
Donald J Look
v.
Chief Executive, Department of Natural Resources
D E C I S I O N
Two appeals have been filed against determinations of unimproved value by the Chief Executive, Department of Natural Resources, for a Residential "A" zoned parcel of land situated at 4 Salisbury Street (Corner Digger Street), Woolloongabba. The land is more particularly described as Lot 4 on RP 45375, Parish of South Brisbane, County of Stanley, and contains an area of 868 square metres. The respondent Chief Executive values the land as at 1 October 1996 in the sum of $68,000 (AV99-39) and as at 1 October 1997 in the sum of $75,000 (AV98-773). The appellant contends within his notices of appeal for an unimproved value of $51,000 as at each relevant date.
The matter of the determination of the unimproved value of this parcel of land has been before this Court on five occasions since 1990, the most recent decision being dated 21 July 1997 (AV95-607 and AV96-170). This is no doubt because Mr Look is seriously troubled by a number of disabilities in the area which, he strongly urges, deleteriously affects the value of his land and its valuation relativity with other parcels of land in the area. Perhaps the most serious of the disabilities is that his property abuts the Brisbane to Cleveland railway line and the Fisherman Island freight railway line. Mr Look points out that noise emanating from the use of the line by 579 passenger trains per week as well as many freight trains (presently two diesel engines pulling 39 wagons) at all times of the day is exacerbated by the fact that there is a railway cutting along the railway frontage to his property and a road bridge over the cutting in Digger Street which is adjacent to his land. Mr Look says that the cutting and the bridge has the effect of reverberating and increasing the railway noise suffered by occupants of his dwelling house which is located practically adjacent to the railway cutting. Mr Look placed in evidence copies of a number of pages taken from documents titled "Guidelines for Railway Noise" and "Queensland Rail Code of Practice for Railway Noise Management" dated September 1997, August 1999 and April 1992. The material contained within these documents including train speed estimates and sound readings taken from an impact study on the standard gauge rail link to Fisherman Island is said by Mr Look to confirm his evidence at previous Court hearings about what he considers to be the most serious disability – railway noise.
Other disabilities referred to by Mr Look include the problem with access to Salisbury Street since the bridge over the railway in Digger Street is the only vehicular access to his area which is a dead-end pocket. Further, opposite his property is Narbethong School for the visually handicapped which keeps normal school hours resulting in a heavy vehicular traffic flow. In addition staff from a nearby company (AGC) on Logan Road and others use Salisbury Street for parking from Monday to Friday. Again, diagonally opposite the railway line at the rear of the subject property is a building occupied by the Endeavour Foundation used for the schooling and rehabilitation of handicapped children and some adults. There are other disabilities listed within Mr Look's statement of evidence which appear to be of lesser significance.
The valuations under appeal were made by Registered Valuer Denis John Rylands who is in the employ of the Department of Natural Resources. Mr Rylands describes the nature of the subject land as being of medium elevation and level with Salisbury Street at its frontage. It is below Digger Street and has a steady crossfall to the east. The land has a relatively wide frontage of about 29 metres to Salisbury Street, and Mr Rylands says the elevation of the block affords suburban views in a south-easterly direction.
Mr Rylands acknowledges that the subject land at the rear abuts the Brisbane to Cleveland and the Brisbane Port rail lines and recognises the disability of railway noise. But he does not agree with Mr Look that the railway cutting and the overhead bridge in Digger Street would exacerbate the railway noise.
The Departmental valuations are based upon the following sales evidence:
AV98-773
Sale 1 – Lot 2 on RP 868390 - 322 square metres – Sang and Wheatley to Baxter on 17 April 1997 for $40,000 – analysed unimproved value $39,500 – applied unimproved value as at 1 October 1996 and 1 October 1997 $40,000 – situation 3 Stark Lane, Morningside – zoning Residential "B R3".
Mr Rylands describes this land as a small block which abuts the Cleveland and Brisbane Port rail line at Morningside and suggests it is an indication of the values of single-unit residential land affected by the rail line. He says that access to Richmond Road can be difficult at times due to traffic volume and visibility problems. Mr Rylands says that 3 Stark Lane is an inferior parcel compared with the subject property.
Sale 2 – Lot 6 on RP 13167 – 301 square metres – Consolidated Electrical Retailers Pty Ltd to R Kumar and S Dadai on 1 March 1995 for $53,000 – analysed unimproved value $52,500 – applied unimproved value as at 1 October 1996 and 1 October 1997 $40,000 - situation 270 Bennetts Road, Norman Park – zoning Residential "A".
Mr Rylands points out that this sale land abuts the same railway line at the rear. He says Bennetts Road is a busy 4-lane sub-arterial road and again he considers that 270 Bennetts Road is an inferior parcel when compared with the subject land.
AV99-39
Sale 1 (Sale 2 in AV98-773).
Sale 2 – Lot 13 on RP 12137 – 405 square metres – PJ Beauchamp to RE and JF Eggins on 2 November 1994 for $62,000 – analysed unimproved value $61,000 – applied unimproved value as at 1 October 1996 $60,000 – situation 10 Colin Street, South Brisbane – zoning "Inner Residential".
Mr Rylands comments that this land is situated directly opposite the railway line. It is level and low-lying with poor access. Once again Mr Rylands considers 10 Colin Street to be inferior to the subject land.
Sale 3 – Lots 3 and 4 on RP11939 – 809 square metres – Falstow Pty Ltd to Queensland Housing Commission on 15 October 1993 for $123,000 – analysed unimproved value $121,000 – applied unimproved value as at 1 October 1996 $125,000 – situation 54 Maynard Street, Woolloongabba – zoning Residential "A".
Mr Rylands comments that this sale involved two allotments situated opposite the railway line. The sale land has a southerly aspect and is gently sloping, and Mr Rylands considers it to be overall superior to the subject land.
Sale 4 (Sale 1 in AV98-773).
The disabilities referred to by Mr Look are well known to Mr Rylands who was the valuer involved when the matter of the determination of the unimproved value of this land was last before the Court. On that occasion, the appeals were dismissed for the reasons outlined by the learned Member in his written decision. It is to be noted that in that decision the Court affirmed the Departmental unimproved value of 4 Salisbury Street in the sum of $68,000 as at relevant dates of 1 January 1995 and 1 January 1996. A reading of the reasons show that Mr Look then raised virtually all the matters he relies upon in these cases except for his introduction of the extracts of evidence mentioned earlier which really only support the view he had about railway noise when he presented his evidence in the AV95-607 and AV96-170 appeals. While a decision of a Member of this Court is not binding upon another Member of the Court, a former decision is not to be departed from lightly, especially when no significant additional evidence has been placed before the Court.
Mr Rylands countered the ground of appeal concerning valuation relativity by informing us that a valuation of $56,000 was placed upon the adjoining 8 Salisbury Street land containing an area of 354 square metres as at both relevant dates with which we are concerned here. 8 Salisbury Street also abuts the railway line at the rear, and for the reasons outlined by Mr Rylands, including the narrow frontage of 8 Salisbury Street, I am satisfied that his valuations of the subject land are not out of line with his valuations of 8 Salisbury Street.It is further contended by the respondent Chief Executive that his Department treated the valuation of the subject land rather conservatively in the 1 October 1996 relevant date valuation since the valuations of residential lots in the area were generally increased for the 1 October 1996 relevant date valuation by a factor of 10%, whereas the value of the subject land remained the same as for the 1 January 1996 valuation. But in any event, Mr Look has provided the Court with no basis for the valuation relativity aspect of his case – he simply has no valuation benchmark upon which to rely for his valuation estimates of $51,000 in each case.
Now it is beyond dispute and has been repeatedly stated in decisions of the Land Appeal Court and this Court that when the task at hand is to determine unimproved value of residential lots, the best evidence of value is sales of unimproved or lightly improved parcels of land, and the only sales evidence produced in the case was that relied upon by Mr Rylands. I agree with him that the effect on unimproved value by railway noise should be reflected in the prices being paid for sites abutting and/or in near vicinity to the line.
Additionally, Mr Look has really not effectively introduced additional evidence to that considered in AV95-607 and AV96-170 apart from his opinion that the number of trains is increasing, and in the absence of evidence from him that there was a fall in the value of his land during the period 1 January 1996 to 1 October 1996, I am unable to conclude that the valuation of his land ought be $51,000 as at both relevant dates.
It follows that I am not satisfied that the onus resting upon the appellant in accordance with section 45(4) of the Valuation of Land Act 1944 has been discharged. I make the following determinations:
AV98-773 – The appeal is dismissed, and the unimproved value of Lot 4 on RP 45375, Parish of South Brisbane, is determined in the sum of $75,000; and
AV99-39 – The appeal is dismissed, and the unimproved value of Lot 4 on RP 45375, Parish of South Brisbane, is determined in the sum of $68,000.
Application for Costs by Chief Executive, Department of Natural Resources
In the event that the Court dismisses these appeals, Counsel for the respondent Chief Executive has applied for costs of and incidental to the hearing of the matters on the basis that the appellant really did not introduce any fresh evidence in the cases apart from the copies extracts which really only support the evidence furnished by him in AV95-607 and AV96-170. Counsel further submitted that the decisions in AV95-607 and AV96-170 make it clear that both the Court and the Chief Executive have taken into account all the defects in the land. It is further submitted that the remarks of the Court in AV95-607 and AV96-170 have not been acknowledged by Mr Look and he relies upon the same evidence here, and that he is in a sense wasting the resources of the Department and has not presented a case which had any chance of success.
Mr Look resisted the Chief Executive's application for costs at the hearing on the basis that his conduct in the case was not vexatious (vide Hymix Industries Pty Ltd v. The Valuer-General (1990-91) 13 QLCR 173 as set out by the learned Member in his decision in AV95-607 and AV96-170 (p.10).
By way of letter dated 23 September 1999, the respondent Chief Executive quantified his costs application in the sum of $2,042.A copy of the Chief Executive's compilation of his cost quantification was forwarded by the respondent Chief Executive to Mr Look.
By way of letter dated 5 October 1999, in response to the Chief Executive's quantification of the cost application, Mr Look further submitted that the Chief Executive's application for costs be disallowed. Amongst his reasons is that he presented a heavy weight of additional evidence in these cases which was a clear indication that the conduct of his appeals was neither vexatious, frivolous or an abuse of process. In the letter, Mr Look took the opportunity himself to make an application for costs in the sum of $450.00.
The legislation under which applications are made to this Court for costs in appeals of this nature is to be found in section 70(1) of the Valuation of Land Act 1944 which reads:"Sec 70(1) – Where the value of land as finally determined upon an appeal against the valuation is the value stated by the owner in the owner's notice of appeal against the valuation, or is nearer to that value than to the valuation appealed against, costs shall not be awarded against the owner;
(2) – Otherwise costs shall not be awarded against the Chief Executive."
Accordingly, it is clear that in these cases costs cannot be awarded to Mr Look.
I am conscious of this Court's reluctance to award costs in appeals under the Valuation of Land Act against the appellants who are unsuccessful for the very good reason that costs' awards have the undesirable effect of discouraging owners exercising their right to lodge and prosecute appeals.
In these cases, my strong inclination to award costs against the appellant is tempered only by reason that conduct of the appeal was not vexatious or frivolous. It certainly was repetitive since no fresh grounds of appeal were introduced, but Mr Look certainly did introduce a considerable volume of fresh material in the form of extracts from documents titled "Guidelines for Railway Noise" and "Queensland Rail Code of Practice for Railway Noise Management" to confirm his already stated views about railway noise in previous cases. But I should add a note of caution that the appellant may not be so fortunate in not having a cost award against him if, in the event of future appeals and in the event that he continues to rely on the same grounds of appeal, he is again unsuccessful.
In the exercise of my discretion in accordance with section 41(9) of the Land Act 1962, I make no award of costs in the matters.
(CH CARTER)
Member of the Land Court
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