Look v Chief Executive, Department of Natural Resources
[1997] QLC 108
•21 July 1997
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BRISBANE
21 JULY 1997
Re: Appeals against Annual Valuations
Valuation of Land Act 1944 -
Valuation Roll No: 7245
Local Government: Brisbane City (AV95-607 and AV96-170).
Donald J Look
v.
Chief Executive, Department of Natural Resources
D E C I S I O N
Background:
These matters relate to two valuations of a property at 4 Salisbury Street, at the corner of Digger Street, Buranda and described as Lot 4 on RP 45375. The key issues relate to relativity with other properties, comparison of comparable sales, and the special disabilities of the site including the impact of noise and vibrations from the adjoining railway corridor.
The subject has a frontage of 29 metres to Salisbury Street and the railway corridor cuts across at an angle such that the depth of the eastern boundary of the subject is longer than that on the west. It has an area of 868 m². The land is of medium elevation and is level with Salisbury Street at it’s frontage, but is below Digger Street at it’s western side, where a traffic bridge passes over the railway corridor, and the bridge is at the level of windows in the building upon the subject. This “overbridge” in Digger Street provides the only access to Salisbury Street which is a dead-end street. Both Salisbury and Digger Streets are bitumen sealed with concrete kerbing and channelling. Good access is available to the subject from Salisbury Street.
At the rear the subject abuts the Brisbane to Cleveland and Fisherman’s Island railway corridor, which has three railway lines. Water, sewerage and electricity are available. The subject is zoned “Residential” under the Town Planning Scheme for the City of Brisbane of 13 June, 1987, and effective at the dates of valuation of 1 January, 1995 (AV95-607) and 1 January, 1996 (AV96-170). The subject is occupied by a dwelling which has been converted into four flats.
Opposite the subject in Salisbury Street is the “Narbethong” School for the Visually Handicapped, and diagonally across the railway to the rear is a building occupied by the Endeavour Foundation as a school for the rehabilitation of handicapped children. Close to the rear corner of the eastern boundary of the subject is a large building used for a metal scaffolding business.
The Chief Executive, Department of Natural Resources, on 20 March, 1995, issued a valuation at $68,000, and on 26 February, 1996 issued a valuation at $68,000. Following objections the Chief Executive disallowed the objections, and confirmed the 1995 valuation at $68,000 on 10 October, 1995, and also confirmed the 1996 valuation at $68,000 on 21 May, 1996. The appellant has appealed both those decisions claiming the valuation in both cases should more properly be $51,000.
Mr D J Look appeared and gave evidence for himself; and Mr D Rylands, Senior Valuer, who was responsible for the valuations, appeared and gave evidence for the respondent.
Evidence:
Mr Look noted that this matter had been in dispute with the respondent for some years, and had been before the Land Court previously in respect of the 1989 valuation (AV90-179) and also in respect of the 1966 valuation in V69-1189. He also acknowledged that the Chief Executive had recognised certain disabilities impacting the subject during an objection conference in 1993 when an initial valuation of $104,000 had been reduced at a “without prejudice” conference to $65,000. He noted however that the impacts of disabilities upon the subject as a result of further traffic along the railway line, and other matters, had continued to increase, and was now, in his opinion, impacting the property with increased severity. This had become more severe with the commissioning of the third railway line for interstate freight traffic to Fisherman’s Island in the Brisbane port area. Mr Look supplied evidence that noise and vibration had increased as a result of:
Increased frequency and duration of rail traffic
·Reduction of the railway embankments
·Erection of an earth mound on the opposite embankment
·Concreting of embankment walls
·Construction activities for the extra freight line
Impact of Rail Traffic
The frequency of train movements had increased considerably in recent times, particularly over weekends where previously hourly movements both ways have now increased to half hourly frequencies both ways. Passenger and freight train movements occur throughout the day during all hours except for the period 1am to 5am. During peak hours the noise is increased by the use of diesel engines to support the electric trains. The train traffic causes problems of noise, vibration, and fumes. Queensland Rail (QR) has confirmed that the replacement of the old diesel locomotives is not planned to occur for a further eight years. Freight trains also occur spasmodically throughout the period from 1am to 5am.Reduction of Railway Embankments
The widening of the rail corridor to accommodate the third freight line and associated signalling equipment has caused the railway embankments to be widened, such that the top of the concrete rendering of the embankment abutting the rear of the subject is now only 12cm from the rear fence line. This has reduced the absorbency of sound attenuation by the embankments, with a corresponding increase in noise impact upon the subject.An Earth Mound
During construction of the freight line QR experimented with the erection of an earth mound on the opposite side of the railway as an “alternative method of noise mitigation”. This apparently received the support of some residents, and QR has planted ground cover to prevent dust problems. Mr Look argued that while noise had been reduced for residents on the north of the line, the impact of the earth mound was to reflect some noise back towards the subject. He also provided evidence of QR’s plans to erect noise barriers along the section of the rail line in proximity to the subject. It was noted that timber barriers were planned for both sides of the corridor west of Digger Street, and along the southern side of the corridor east of Digger Street, with the exception of the small area to the rear of the subject and the three adjoining properties to it’s east. These were planned to be installed by QR during 1995. Whether the channelling of noise by the barriers would impact the subject further was not clear as QR has not yet installed the barriers due to limited budget problems.Concreting of Embankment Walls
The earth embankments have been concreted by QR as an erosion prevention process. However, Mr Look claimed that the harder concrete surface now acted as a “sounding board” increasing the noise impact upon the subject.Construction Activities
Mr Look provided evidence of considerable correspondence with QR in respect of the impact of construction activities during the relevant periods for the valuations. In particular he had reported disturbance from a faulty overhead power line, and an “out of shape” track joint or “insulator joint”, which was finally ground to ensure the rail was level. While there was evidence that considerable inconvenience and disturbance had occurred as a result of the construction activities, the correspondence from QR indicated that impacts upon the subject were similar to those experienced by other residents elsewhere along the line.
In respect of the other disabilities impacting the subject from the surrounding properties and traffic along Digger and Salisbury Streets, I note that these matters were considered in the previous hearing (AV90-179). Mr Rylands acknowledged the uniqueness of the combined disabilities and their impact on the subject, and advised that these had been allowed for in his valuations as determined. In comparing other sales he noted that all properties have some things unique to themselves.
In arriving at his determinations Mr Rylands had relied upon the following sales:·Sale 1 - (270 Bennetts Road, Norman Park - Lot 6 on RP 13167)
This sale abuts the railway line at the rear, and has an area of 301 m², and is zoned “Residential A”. Bennetts Road is a busy four-lane sub-arterial road. The sale is seen as inferior to the subject in view of it’s smaller size. The sale sold in March 1995 for $53,000, and after allowing for improvements was analysed at $52,000, and an applied unimproved value of $35,000. Mr Rylands argued that this applied value should more correctly be $37,000, when compared to an adjoining property with an area of 417 m² and a valuation of $43,000 as at 1 January, 1995.
·Sale 2 - (10 Colin Street, South Brisbane - Lot 13 on RP 12137)
This sale is directly opposite the railway line, and is level and low-lying with an area of 405 m² and is zoned as “Inner Residential”. Access is poor in a dead-end street and the sale is seen as inferior to the subject because of it’s smaller area. The sale sold in November 1994 for $62,000, which after allowing for improvements provided an analysed value of $61,000, and an applied unimproved value of $54,000 at 1 January, 1995, and $54,500 at 1 January, 1996.
·Sale 3 - (54 Maynard Street, Woolloongabba - Lots 3 and 4 on RP 11939)
This sale has an area of 809 m², is zoned “Residential A”, is opposite the railway line, and faces south and is gently sloping. Overall it is seen as superior to the subject. The sale sold in October 1993 for $123,000, which after allowing improvements provided an analysed valuation of $121,000, and an applied unimproved value of $114,000 at 1 January, 1995 and $125,000 at 1 January, 1996.
Mr Look provided no sales evidence to support his estimate of the valuation as he believed that other parcels along the railway line do not have the same problems as the subject. However Mr Look was familiar with Sale 3, and knows Colin Street and Bennetts Road areas. He also contended that the irregular shape of the subject placed it at a disadvantage in comparison to the rectangular shapes of the sales. He agreed that the wider frontage would be seen as an advantage for the subject. He also agreed that generally a corner lot has an advantage over inside lots because of the less intrusion of neighbours and the larger street frontage. However he contended that the Land Court in 1971 (V69-1189) had previously found that the close proximity to the railway overbridge, and it’s associated noise and traffic did not add to it’s value as a corner site.
In the matter of comparable impact of noise from passing rail traffic, it is agreed that the reverberations of the trains passing the subject are more intense than for either Sale 1 or Sale 3. Sale 1 has the added disadvantage of road traffic along Bennetts Road, but because of the elevation of the line above Sale 1, and the curved alignment of the rail line behind Sale 1, the trains appear to move more slowly and with less noise. Some of the sound passes over Sale 1.
Sale 3 is further from the rail line than the subject, and therefore is less impacted. By comparison Sale 2 is below the rail line and appears to get a similar noise impact as the subject, but perhaps slightly less reverberations. On balance, Mr Rylands accepts that the impact of noise is greater on the subject than for the three sales.
In comparing the sales, Mr Rylands felt that Sale 1 was relevant in view of it’s similarities with the subject and its proximity to the railway and busy Bennetts Road. However he felt that Sale 3 had closer relativity to the subject, although conceding that Sale 3 was not as close to the railway line. Mr Rylands had not sought to value the subject at its highest and best use, which would have been for it’s potential for subdivision into two lots. However he had valued the property as a single residence under s.17 of the Valuation of Land Act.
Mr Look argued that under the existing Town Planning Scheme, the Brisbane City Council normally required a frontage of 15 metres for a new residential lot, and as the subject only had a frontage of 29 metres this may have prevented any possible subdivision being approved. However Mr Rylands noted that Council was now more flexible in these matters. Mr Look contended that any potential for future subdivision was not relevant in view of the limitations of the width of the subject. Mr Rylands noted that in view of the disabilities of the subject, the Chief Executive had not increased the valuation over recent times while other surrounding properties had increased.
At the request of Mr Look, and with the concurrence of Mr Rylands, I inspected the site in company with both parties on 27 June, 1996.
In summarising the case for the respondent, Mr Rylands noted that the appellant had been a consistent objector in these matters, as is his right. However in spite of every effort by the Chief Executive to seek agreement, and in view of the failure by Mr Look to supply supporting sales’ evidence for his contentions, in the event that the valuation be confirmed by the Court, Mr Rylands gave notice that the respondent would be seeking costs. In this matter Mr Rylands drew support in respect of any appeal being determining as arbitrary or vexatious, where the Land Appeal Court had provided direction in Hymix Industries Pty Ltd v. The Valuer-General 13 QLCR 173 (V89-415)(LAC)(1990/91). Mr Rylands estimated that in the event of costs being considered by the Court, he submitted that an amount of $867 had been spent by the respondent in preparing and defending the appeal and the respondent would seek recompense to that amount.
Mr Look contested any claim for costs claiming that it is the right of owners to appeal valuations which, in their opinion, are not sound and have not considered all of the facts. He argued that his claims are not vexatious and he has supplied further evidence for consideration by the Court.
Decision:
In the matter of the general disabilities of the subject relating to impacts involving the surrounding properties and traffic along Digger and Salisbury Streets, I note that these were addressed by the former President of the Court in his decision of 17 May, 1991 (AV90-179). While it is no doubt of ongoing concern to the appellant, those matters have been recognised and addressed by the Court, and their impacts upon the subject are now part of the considerations of the respondent at arriving at the current valuations. There was no evidence that there had been any material changes to those general disabilities since 1991.
However Mr Look has supplied evidence of increased impacts upon the subject by an increase in rail intrusions into his amenity, following the upgrading of the rail line in recent years. There is no doubt that the frequency of passenger trains has increased, and that he is now impacted by increasing freight trains to Fisherman’s Island. He would draw little comfort from the QR’s advice that it will not be replacing it’s existing “noisy” diesel engines for a further eight years. The widening of the railway embankments has brought the railway line cutting closer to the subject to a point where it is almost on the rear boundary of the subject. It is possible that this closeness has mitigated against the erection of any timber “sound” barriers directly behind the subject. There is also no doubt that during the construction of the additional railway line for freight trains, Mr Look has suffered some discomfort and loss of amenity. However it has not been proved that this intrusion into amenity during this period has been any worse for the subject than for other parcels elsewhere along the line.
In the matter of the earth bank opposite the subject, and in the plans to erect timber barriers along the parts of the railway line either side of the subject, I note that on first impression the impacts upon the subject do not appear to have been afforded equal consideration by QR, compared to surrounding properties. There was no evidence given as to why the timber barrier fences were not planned to extend across the rear of the subject, similar to surrounding properties. However it is noted in the letter from the Minister of 17 May, 1994 that:“Queensland Rail is currently analysing the results of the noise barrier trial and will then design barriers for each individual location, taking into account the differing distances of housing from the rail corridor, the physical space available to construct barriers and the level of noise to be reduced.”
The question then is what additional impact have these increased intrusions had upon the subject, and has the Chief Executive adequately allowed for those impacts? In this regard Mr Rylands provided a relativity map (Exhibit 4) showing the unimproved values of surrounding properties in Salisbury, Digger and Maynard Streets. This map needs to be interpreted also in the light of the sales’ evidence supplied by Mr Rylands. I note also that Mr Look has failed to supply evidence of other sales which would support his case, relying on his statement that the subject is unique in respect of the particular disabilities which impact upon it.
In comparing the sales’ evidence of Mr Rylands I note that he has sought comparison with parcels either abutting or very near to the same railway line as the subject. Sale 1 (301 m²) and Sale 2 (405 m²) are less than half the area of the subject, while Sale 3 (809 m²) has a comparable area to the subject. While each sale has its own particular characteristics and disabilities, the common thread of properties near or abutting a railway line, which are impacted by rail traffic disturbances, provides a useful method of comparing them with the subject.
The smaller (and cheaper) Sales 1 and 2 are seen as inferior, while the comparably sized Sale 3 is seen as superior to the subject. The considerable difference in the applied value between Sale 3 ($114,000) and the subject ($68,000) indicates that some provision has been made for the “special” problems associated with the subject. This was admitted by Mr Rylands. On the evidence this would support the current valuation by the Chief Executive.
This leads to the question of whether the subject is fairly treated in respect of relativity with other parcels in Salisbury Street? The relativity map (Exhibit 4) shows that as you move east along the northern side of Salisbury Street from the subject, the parcels reveal:
Parcel Area ValuationLot 1 on RP 45375 354 m² $56,000
Lot 2 on RP 45375 463 m² $57,000
Lot 3 on RP 45375 594 m² $63,000
Lot 55 on RP 11955 480 m² $63,000
Lot 2 on RP 11959 539 m² $63,000
While on the southern side of Salisbury Street, and therefore further from the railway line, parcels vary from $87,000 (519 m²) to $109,000 (809 m²). The parcel at Lot 100 on RP 145943 on the other side of the railway line opposite the subject has a value of $80,000 (856 m²). Based upon this evidence the valuation for the subject would appear to be reasonable, and has acknowledged the specific problems it suffers.
In the matter of the method of valuation of the subject it is noted that Mr Rylands assessed it as a single residence site. In this matter I note that the Valuation of Land Act at s.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.
(2) In subsection (i) -
a ‘single dwelling house’ means -
(c)A building used solely for habitation and that consists of two flats, one of which is occupied by the resident owner;”
I note the arguments whether the Council would approve any potential subdivision, but note also that this has no relevance as the subject was treated as a “single residence” for the purposes of the Act. I also noted that s.17(2)(c) stipulates that the building shall comprise of two flats to qualify for a concession under this provision, and the subject is currently being used as four flats (the appellant's residence upstairs and three one-bedroom flats downstairs). This would seem to be a generous interpretation by the Chief Executive.
In the matter of the possible awarding of costs in this matter, I note Mr Rylands’ concerns that the appellant has consistently argued similar evidence over a period of years, and regularly disputes the valuations determined. I note also that in Mr Look’s previous appeal to the Land Court in 1991, the Court found in favour of the respondent basically based upon similar evidence now supplied. I note also his concern that should the current appeal be found to be of an arbitrary, frivolous or vexatious manner, or has disregarded principles which should be applied, then it is within the discretion of the Court to award costs.
While I can understand the frustrations that Mr Rylands would feel in repeatedly having to defend the matter, where little additional counter-argument is supplied, it was found by the Land Appeal Court in WH Bowden v. The Valuer-General 7 QLCR 138 at p.147:“Easy access to the Land Court to air grievances and have valuations reviewed is, as we have already stressed, most desirable in revenue cases, and such access should be available without fear of costs being awarded to either party except in special cases.”
The Land Appeal also noted that at p.145:
“It is true, as submitted by the appellant’s counsel, that the legislature has not prohibited the Courts from awarded costs but we do not agree that if the legislature intended that no costs should be awarded it would necessarily have so stipulated. It appears to us that the legislature intended to leave all questions of costs in the Court’s unfettered discretion subject to the prohibition against granting costs to the party whose valuation is nearer the valuation determined.”
In the matter of costs I turn to the Act in s.70 which states:
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.”
The principles of discretion in these matters was later considered by the Land Appeal Court in Hymix Industries Pty Ltd v. The Valuer-General supra where the Court found at p.186:
“In the subject case it could not be held that either party has approached the valuation in an arbitrary, frivolous or vexatious manner or has completely disregarded principles which given certain facts, should be applied. The position is more to the contrary.”
In the current case I believe that while Mr Look has failed to provide evidence of other sales that would support his case, he has supplied evidence of an increasing impact upon the subject by railway activities which have caused further deleterious impacts upon the subject. Mr Rylands’ agreement that these matters have been allowed for in retaining the valuation of $68,000, while other properties have escalated, supports my view that the appeal is not arbitrary or frivolous. On these grounds I would find little support for the awarding of costs should that be forthcoming.
Summary:
In determining amendments or alterations to the valuation, the onus of proof rests upon the appellants, under s.33 of the Valuation of Land Act 1944:“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 under proved otherwise upon objection or appeal or until altered or further altered.”
In summary I find that the appellant has failed to demonstrate that the Chief Executive has not undertaken his responsibilities correctly, and that he has not considered all relevant impacts upon the subject.
Conclusion:
(AV95-607) - After having considered the whole of the evidence I am not persuaded that the appellant has proved his case. The appeal is dismissed, and the Chief Executive’s valuation at $68,000 is affirmed.
(AV96-170) - After having considered the whole of the evidence I am not persuaded that the appellant has proved his case. The appeal is dismissed, and the Chief Executive’s valuation at $68,000 is affirmed.
NG DIVETT
MEMBER OF THE LAND COURT
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