MacDougall v Chief Executive, Department of Natural Resources

[1998] QLC 97

[1998] QLC 97

 

LAND COURT,

BRISBANE

11 September 1998

Re:     Determination of Unimproved Value -
  City of Brisbane: Division of Windsor -
  (REF. AV97-259).

LN and AA MacDougall
v.
Chief Executive, Department of Natural Resources

The abovementioned persons have appealed against the determination by the respondent Chief Executive of an unimproved value of $90,000 for a 607 square metre parcel of land situated at 49 Noble Street, Wilston, and which is more particularly described as Lot 41 on RP 44981, Parish of Enoggera,  County of Stanley.  The land is zoned “Inner Residential” under the provisions of the City of Brisbane Town Planning Scheme.  The relevant date for the determination of the unimproved value is 1 October 1996, and the appellants contend within the notice of appeal for an unimproved value of $66,600, which was the value applied to the land at the previous annual valuation date of 1 June 1996. 
Angus Arthur MacDougall furnished evidence in support of the appeal. Mr MacDougall is clearly aggrieved by the receipt of the unsigned notice from the Department advising that his objection to the valuation of the appellants’ land had been disallowed without any written reasons therefore or the basis for the rejection of his application. It has been my experience in cases of this nature that the format of Departmental decisions on objections does not contain reasons for the decision. But put simply, this Court does not have any power to direct the Chief Executive to advise the reasons for decisions on objections given by him pursuant to section 43 of the Valuation of Land Act 1944.
           Mr MacDougall told us that there is a sewer line running through the appeal property as shown on a drawing (DET.PC.576) attached to the notice of appeal and suggests that this sewer line reduces the availability of the land for unencumbered use by a factor of 15%.  In addition, as the subject land falls from the rear to the street frontage, there is a considerable amount of surface water which traverses the block from adjoining properties and the street at the rear during times of heavy rainfall.
           Mr MacDougall stressed that the land is subject to flooding.  His enquiries at the Brisbane City Council suggest the land will flood to an approximate elevation of 5.13 metres as compared to 6.55 metres in a flood of the same proportions as that in 1974.  Mr MacDougall also told us that the amenity and the unencumbered usage of the appeal land is affected from the level of traffic and noise associated with the use of a sports ground (Downey Park) which is located in Noble Street directly opposite the appeal land.  He tendered photographic evidence showing the parking in the street on a very typical Saturday.  These photographs show the street to be completely parked with cars and Mr MacDougall told us if there was a game of rugby on at Ballimore on that day as well, then the parking difficulties are exacerbated.  Mr MacDougall says that Noble Street is not through road, but it links up with Granville Street along Enoggera Creek and this results in a lot of traffic using Noble Street, particularly at weekends.
           Mr MacDougall referred to valuations of other properties in the area (photographic evidence supplied) in support of his contention that the valuation of the subject land is excessive.  He says that No 58 Finsbury Street, Newmarket, with an area of 607 square metres and zoned “Inner Residential” is valued as at 1 October 1996 at $78,000 (previous valuation as at 1 January 1996 $65,700).  Mr MacDougall points out that Finsbury Street has traffic calming facilities and he says the density of traffic in Finsbury Street is less than that in Noble Street.  He also says 58 Finsbury Street is a level block and does not receive any surface runoff water.  Mr MacDougall told us that No 58 Finsbury Street has a nice outlook over Finsbury Park, and that No 58 has a degree of quietness and quietude which does not compare with Noble Street and this means, in his opinion, that No 58 Finsbury Street is a more valuable property than is the subject land.  It is to be noted that No 58 Finsbury Street, although in the suburb of Newmarket, is in relatively close proximity to the subject land.
           Mr MacDougall then goes to No 9 Newbery Street, Newmarket, containing an area of 653 square metres and which is zoned “Particular Development” and which is valued as at 1 October 1996 at $84,000 (valued as at 1 January 1996 at $75,600).  I note that No 9 Newbery Street is close to No 58 Finsbury Street.  Mr MacDougall says there is a considerable fall from No 9 Newbery Street to the roadway and the land falls about 2 metres from Newbery Street to Finsbury Street, and that No 9 is well out of flood level.  He says again that No 9 Newbery Street is in a quiet area with no through traffic and with a far better amenity than parcels in Noble Street without what he says is “the penalties of the flooding or stormwater runoff”.
           Another parcel referred to by Mr MacDougall is an “Inner Residential” zoned site at No 79 Vardon Street, Wilston, containing an area of 607 square metres and which is valued as at 1 October 1996 at $112,500 (valued as at 1 January 1996 at $72,000).  I note that Vardon Street is just two streets west of Noble Street.  Mr MacDougall says that No 79 Vardon Street has a complete open access behind it, is well out of flood level and does not suffer from any stormwater runoff problems.  He told us that Vardon Street is a no through road and No 79 has access to parkland and has a far better amenity than does the subject land.
           Mr MacDougall engaged the services of a Registered Valuer, Mr JWB Burley, of Balfour Burley & Co to advise as to a more realistic valuation of the subject property, but Mr Burley was not called in evidence to support the written advice provided to the appellants which was tendered in the case.  As indicated to Mr MacDougall during the hearing of the matter, the contents of the letter are not of probative weight since Mr Balfour was not present to provide verbal evidence in support of his written opinion.
           The valuation under appeal was supported in evidence by Departmental Registered Valuer James Thomas Houghton who describes the nature of the land as being above road level and rising gently to the rear, with a north-west to south-east crossfall with good drainage although the site was flooded in 1974 and could still be partially affected by a Q100 flood level.  Mr Houghton says in his tendered valuation document that the subject land is situated in a fair residential area of older-style homes, overlooks Downey Park to the east and is located approximately 4 kms from the City Centre.
           Mr Houghton submits that the valuation under appeal is supported by the following sales evidence:

·   Sale No 1 - Lot 2 on RP 817601 - 406 square metres - zoning “Residential B-3”  - Nielson to Sallows on 2 March 1996 for $84,500 - analysed unimproved value $83,000 - applied unimproved value $73,800 - situation 45 Bale Street, Albion.

Mr Houghton says this sale parcel was flooded in 1974, and that the sale land is slightly below road level.  Mr Houghton considers the subject land to be superior to this sale land due to size, outlook, topography and proximity to the CBD.

·   Sale No 2 - Lot 4 on RP 18509 - 539 square metres - zoning “Inner Residential” - Boucher to Kelsall on 7 June 1995 for $54,500 - analysed unimproved value $57,000 (after allowing for the cost of the demolition of a dwelling house) - applied unimproved value $55,800 - situation 22 Earle Street, Windsor.

Mr Houghton says this sale lot has a narrow frontage and was flooded in 1974.  There are industrial properties opposite and adjoining the sale land which is above road level with a north-west to south-east crossfall.  This sale land is also severed by a large stormwater drainage easement and underground piping which discharges into Enoggera Creek.  Mr Houghton says the easement makes the sale parcel unable to be developed without major design and foundation works.  He considers the subject land is far superior to the sale land due to size, frontage and elevation, outlook, the locality generally, and points out that the subject land is unaffected by the industrial and easement detriments suffered by the land at 22 Earl Street.

·   Sale No 3 - Lot 2 on RP 844327 - 396 square metres - zoning “Inner Residential” - Gooding to Martin on 4 November 1996 for $110,000 - analysed unimproved value $109,000 - applied unimproved value $100,000 - situation 1 Clifton Street (corner), Windsor.

Mr Houghton describes this sale land as being a small corner parcel situated in the next street to the subject land.  The sale parcel falls from Clifton Street to the north.  It is situated in a good residential area and although smaller in size, Mr Houghton considers the sale land to be superior to the subject land due to its corner position and better elevation.
           Mr Houghton informed the Court that his Department is well aware of the flooding problems affecting the subject area and claims that they are taken into account in valuing the subject land as two of the three sales referred to by him are also subject to flooding.  Mr Houghton also considers the problems with the parking and traffic in Noble Street are reflected in the valuation of $90,000 applied by the Department to the subject land.
           Mr Houghton believes there is not a commonly used main road but a track, narrower than a normally made road along Enoggera Creek connecting Noble Street with Granville Street, and believes there to be a no-entry sign from the Noble Street entrance, but he said he stood to be corrected on the latter issue.  But in any event, Mr Houghton suggests the connection road would not have any effect on the valuation applied to the subject land.
           The first question I should address is that raised by Mr MacDougall when he suggested the notice of decision on objection (Exhibit 2) is invalid as it has not been signed by any officer of the Department of Natural Resources.  The notice does carry the name (PF Tooley) as General Manager, Valuations.  Now as recently as 31 July 1998, the learned President of this Court handed down a decision in Re: RW and TR Buchanan v. The Chief Executive, Department of Natural Resources (AV97-290 and V97-472) involving a finding in respect of the very same submission.  The learned President had this to say:

“  Mr Buchanan questioned the validity of the various Departmental notices that the appellants had received.  In particular, two valuation notices (letters) dated 28 July 1997, and 7 August 1997, with the two different valuations were received only ten days apart.  No explanation of the variations was given and neither letter was signed.  Similarly, the decisions on objections and, for that matter, the acknowledgment of receipt of objections, were not signed.  Only the letter from Mr Ridley and the letter from the Administration Officer advising them of the invalidity of the earlier appeal, was signed.

Whatever else may be said of the notices or letters, there can be no question as to their validity.  In respect of notices of valuation, section 50(1) provides that a notice of valuation shall be issued to the owner in the approved form and, with one exception not relevant here, the notice must also state that the owner may object against the valuation.  Section 2 defines `approved form’ to mean a form approved by the Chief Executive.

With respect to notices of the Chief Executive’s decision on objections, section 54(1) simply requires the Chief Executive to issue to the objector written notice of his decision on the objection within certain specified times.  However, there is no indication of what form such notice should take.

The various notices referred to are each in the form of a letter with the Department of Natural Resources letterhead and, although they do not carry a signature, each one carries the printed name `P F Tooley General Manager, Valuations’.  In my opinion, these letters clearly comply with the requirements of the Act as they contain all the relevant information.  They are therefore valid.  ”

I find myself in agreement with the President on this issue.
Section 45(4) of the Valuation of Land Act 1944, in respect the filing of appeals against annual valuations in this Court reads -

“  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”.

Now the grounds of appeal in this case are:

“ Under the Valuation of Land Act 1944 Section 45, we hereby appeal the decision conveyed in an unsigned letter dated 29/7/97 attributed to Mr P.F. TOOLEY, General Manager Valuations.

This letter did nothing to advise why our legally constituted objection and explanations given during a conference held on 17/7/97, were rejected.

Our objection was logically based on the unimproved value as stated in the Valuation of Land Act 1944 and evidenced on the Form 59 (Notice of Appeal against a determination of the chief executive).

Using the premise that all equivalent land areas have a land value and even allowing for inflated values attributed to recent sales, the value must then relate to the amenities and usage of such land being equal to an equivalent land area in the total area for the basis of valuation.

The blank rejection returned unsigned and without any explanation, shows that the objection was not reasonably considered, and did not take into account the equivalent right of usage.

Our objection was based on equal amenity, usage potential and unencumbered or degraded facility and usage.

SPECIFICALLY

1.        Drawing marked DET.PC.576 shows clearly that Lot 43925 on that     drawing has an intrusion of a sewer through the property.  Thereby reducing availability of  land for unencumbered use by 15% minimum.

2.        This drawing clearly also shows the run off surface water that flows       through the property as the sewer line follows the natural fall of the           land.

3.        The attached B.C.C. flood enquiry Ref F614 29/8/90 shows that the     property will flood to an approximate elevation of 5.13 Metres as          compared to the flood level of 6.55 Metres at the 1974 flood.

4.        The amenity and unencumbered usage of the said land is impaired with   the level of traffic and noise associated with the sports ground         opposite.  The enclosed photographs show a relatively quiet Saturday.

These factors quite clearly show that the equivalent valuation is not appropriate for this property and that the valuation should remain at $66,600.00.

To assist the court we enclose our initial objection letter that quite clearly stated the grounds for objection and a possible reduction that any one of these factors could be considered in another property in the subject valuation area. ”

Now it is indeed unfortunate for the appellants that no reference is made within the grounds of appeal to a ground of unimproved value relativity.  Mr MacDougall explained that he was handicapped in framing his grounds of appeal by the lack of knowledge about the reasons why the Department disallowed his objection, and accordingly was not aware of the case he had to meet.  I can fully appreciate his position, but any sympathy I have for him  cannot alter the legal position - there was simply no reference within the grounds of appeal to a ground of unimproved value relativity.  Accordingly, I cannot consider the unimproved relativity values furnished by the appellants.  This being the case, there is no relativity basis for the appellants’ contention that the unimproved value of the subject land should be reduced to $66,600.
           I adopt the evidence of Mr Houghton that the Department has sufficiently taken into account in relation to the basic sales evidence used by the Department the disabilities of the sewer line (which is close to the southern boundary of the subject land), the surface water problems and the traffic problems in Noble Street.  In the end result, it follows that the onus resting upon the appellants must fail.  Accordingly, the unimproved value of Lot 41 on RP 44981, Parish of Enoggera, as determined by the respondent Chief Executive, in the sum of $90,000 is affirmed.

(CH Carter)
Member of the Land Court