Maier v Department of Natural Resources and Mines
[2005] QLC 14
•24 March 2005
LAND COURT OF QUEENSLAND
CITATION: Maier v Department of Natural Resources and Mines [2005] QLC 0014 PARTIES: Josephine V Maier
(applicant)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO.: AV2003/0748 DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under Valuation of Land Act 1944 DELIVERED ON: 24 March 2005 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Dr NG Divett ORDER: The appeal is dismissed, and the unimproved value of Lot 1 on RP 73236 as determined by the Chief Executive in the sum of One Hundred Thousand Dollars ($100,000) is affirmed. CATCHWORDS: Valuation – Statistical increases
Valuation – Impact of flooding – Reliability of flooding advice considered.APPEARANCES: Ms JV Maier appeared on her own behalf
Mr K Fisher, Crown Law for the respondent
Background:
This matter relates to land at 15 Kismet Street, Northgate, and described as Lot 1 on RP 73236, Parish of Toombul. The subject land has an area of 607 square metres, and is located about 10 kilometres radially north-east of the Brisbane GPO, and has good access to Kismet Street, which is bitumen sealed with concrete kerbing and channelling. All normal urban utility services are available. The subject land is designated as Low Density Residential Area, under the Brisbane City Plan 2000 of 30 October 2000, effective at the date of valuation of 1 October 2002. The key issues are the nature of the land, the impact of flooding, changes in the value, relativity and comparison of sales.
On 24 February 2003 the Chief Executive issued a valuation of the subject land at $114,000. Following an objection the Chief Executive reduced that figure to $110,000. The appellant then appealed claiming the unimproved value should more probably be $65,000. Following a court supervised preliminary conference, the Chief Executive further reduced the valuation on 15 April 2004, to $100,000.
Josephine Victory Maier appeared and gave evidence on her own behalf. Mr K Fisher, Counsel of Crown Law appeared for the respondent, calling evidence from Andrew Trevor Brown, the departmental registered valuer responsible for determining the valuation.
History of the land –
Ms Maier explains that she had been a long-time resident for some 31 years upon the subject land, during which period there had been little additional services supplied by the Brisbane City Council (the Council). During that time she has unsuccessfully attempted to sell the subject property, and she now intends to seek Council approval for an extension to the rear of her dwelling. As part of that process she now provides evidence of a consultant's preliminary planning report (Exhibit 3 - p.17). A major thrust of that advice relates to the impact of possible future flooding discussed later.
Ms Maier explains further that during the 1974 major flooding, the floodwaters did not enter the dwelling, but rose to a height of about 0.3 metres below floor level. That was indicated by a flood mark upon a concrete stump relative to adjoining brickworks (Exhibit 3 - p.24). The height of an air-conditioning unit just above that level was also noted. However it is the appellant's concern now that following extensive new developments within the adjoining Cannery Creek flood plain, future similar flooding was likely to be more intrusive.
Nature of the land –
Ms Maier argues that while the subject land is in a good location, close by to the Toombul Shopping Centre, the problems with flooding severely impact its value in the market place. Ms Maier also admits that there is little vacant lands in that area, except as she advises along Schulz Canal, where the flood plain has recently been developed for a new residential village (Millwoods) and the filling of industrial lands along Nudgee Road (Transcript 6). Because of those new developments in the general catchment area, and others, Ms Maier has serious concerns that predictions for future flooding, based upon post-Wivenhoe Dam flood mitigation impacts, may prove to be too optimistic. For that reason she argues that the impact of flooding is a serious disability of the subject land.
Ms Maier also notes that Kismet Street is virtually a dead-end street, as the road reserve continuing to Earnshaw Road is unformed. She argues that traffic regularly needs to reverse and turn in front of the subject land, because of that lack of through passage, thus causing some disturbance to the amenity. Mr Brown sees the cul-de-sac nature of Kismet Street as an advantage, compared say to the through nature of the adjoining Station Avenue, where pedestrian access on a walkway across Cannery Creek to the cannery at Earnshaw Road and Crockford Street, can also be a distraction.
To support her argument that flooding of Cannery Creek is a problem at the subject land, Ms Maier supplies a map of the area (Exhibit 3, p.4). That map shows that the subject land lies in elevation between 3.5 metres and 2.5 metres Australian Height Datum (AHD). Cannery Creek lies at about reduced level 2 metres AHD in that location. Ms Maier argues that because of the low nature of the subject land, flood waters regularly encroach upon the land. She notes that flooding most recently occurred after a flash flood in March 2004. In order to obtain Council approval to extend her dwelling, subject to an expensive application fee, her consultant planner (Mr Butler) advises that approval was only likely to be given if the new extension maintained a floor level in excess of the current floor level of the existing dwelling by about 0.5 metres. Because of possible physical difficulties associated with such a requirement, the appellant feels she is unlikely to proceed, and sees that restriction as a disability which should be reflected in the unimproved value of the land.
Ms Maier agrees that the currently maintained vacant parcel (Lot 2 on RP 73236), adjoining the subject land to the north, is vested in the Council. Between that vacant parcel and Cannery Creek is another Council Reserve (Lot 2 on AP 51555). Both of those vacant parcels are seen as part of the Cannery Creek waterway. While Ms Maier is not aware how the Council "defined flood levels" were determined, she accepts that information supplied by Mr Butler. She also agrees that the flood waters enter the subject land generally from Cannery Creek across the adjoining parcel to the rear at 42 Station Avenue (Lot 2 on RP 127783).
While Ms Maier agrees that the cleared and tidy nature of the adjoining open space Council land (Lot 2), could be seen as an advantage to the appearance of the subject land from that direction, she notes that it has no impact upon the likelihood of flooding from Cannery Creek. Ms Maier also notes that Cannery Creek does provide strong natural decaying odours, suggesting a lack of good drainage of that waterway (see photographs, Exhibit 3).
In respect of the possibility of a future Commonwealth Government detention centre near Brisbane Airport, Mr Brown argues that, should that proceed, it would also have similar impacts, if any, upon the comparative sales used in this matter. Mr Brown also argues that traffic associated with the postal centre, cannery and the Catholic University in that area, are fairly removed from the subject area, and would not be a problem. Mr Brown also argues that he had allowed considerations for the proximity to the creek and potential flooding, when he made the reductions to the valuations following the preliminary conference.
To support her concerns about flooding, Ms Maier provides a flood report from the Council in respect of both the subject land and the adjoining property at 42 Station Avenue. She notes those confirm the slightly lower reduced level of the latter, but notes that restrictions upon future building developments are similar on both properties (Exhibit 3 – pp.6 and 8). She also notes that Council advises that more severe floods can occur beyond the current recorded maximum levels (p.8(5)).
Changes in the valuation –
Ms Maier advises that she had allowed for a 10% increase in her estimate of the unimproved value at the relevant period, similar to the previous unimproved value of $57,000 at 1 October 2001, which had been increased by 10% for that period. She argues that an increase of 75% from the previous $57,000 to the proposed $100,000 for the subject land, is inconsistent with advice to her by a local real estate office (Exhibit 2 – p.16). She notes that advice from that agency in September 2004 indicates that house prices across Australia were now starting to fall for the first time in four years, while house prices for the Brisbane area only increased by 1.5% for the quarter, and 28% over the year. The agency advises that house prices from sales in the mid-2004 period reflected an increase of 10.6%, which she argues supports her estimate of a relevant increase in the market for the subject land.
Ms Maier agrees that in some areas of Brisbane, land values may have increased by more than 10%, but she argues that has not occurred in the subject area. Mr Brown rejects the advice of the real estate agents, as he notes that reflects a period well after the relevant date of 1 October 2002. He also notes that subsequent sales evidence also indicates a rising market, and he comments that the valuation soon to be issued for 1 October 2004 will indicate further increases. Ms Maier agrees that her real concerns lie not with the rising unimproved values, but more with the resulting increases in rate indebtedness to the Council.
Comparison of sales –
Ms Maier does not provide any sales evidence to support her estimate of the unimproved value, but is familiar with Mr Brown's sales, and questions part of those comparisons. Mr Brown supplies the following sales evidence:
· Sale 1 – (30 Lang Terrace, Northgate – Lot 1 on RP 67807). This is a 771 square metre low density residential parcel located about 0.8 kilometres south-east of the subject land. The sale is larger in size and regular in shape, with similar services, and slightly more elevated. The sale overall is seen as superior due to its location and size. The sale sold in April 2002 for $150,000, was analysed at $145,000, and applied at $132,500.
· Sale 2 – (82 Meymot Street, Banyo – Lot 15 on SP 146752). This is a 405 square metre low density residential parcel located about 1.5 kilometres north-west of the subject land. The sale has similar services and access, is near level and less flood prone. Overall the sale is slightly inferior due to its smaller size and the distance from the CBD. The sale sold in April 2002 for $94,000, was analysed at $90,500, and applied at $83,000.
· Sale 3 – (14 St Conel Street, Nudgee – Lot 48 on SP 149720). This is a 603 square metre low density residential parcel located about 2.25 kilometres north-east of the subject land. The sale has similar services, access and area, and falls gently from north-west to south-east, and has underground power services, and is in a new estate. There are no known flooding issues, and overall the sale is seen as slightly superior for that reason. The sale sold in October 2002 for $128,000, was analysed at $122,000, and applied at $112,000.
· Sale 4 – (48 Station Avenue, Northgate – Lot 2 on RP 127783). This is a 670 square metre parcel adjoining the subject land to the rear, with similar services and access. Because the sale is slightly lower than the subject land, it is seen as slightly more flood prone. Overall the sale is seen as slightly inferior, although it is slightly larger in area. At the sale date the property was an improved property developed with a modified old Church Hall building with three carports, fencing and landscaping, which is estimated to have an added value of $84,250 discussed later. The sale sold in September 2002 for $182,000, was analysed at $97,750, and applied at $92,000.
Ms Maier questions the reliability of adopting Mr Brown's Sales 1, 2 and 3, which she argues would never be subject to the severity of flooding experienced at the subject land, as there were no creeks near those sales. She notes also that Sale 2 (82 Meymot Street) is to the west of the railway line, which Mr Brown agrees is a separate Sub Market Area (SMA), reflecting different market perspectives. She agrees that each of those three sales have comparable distance to railway services. However Mr Brown argues that rail services at Northgate Station are more frequent than those further removed from the CBD at Banyo or Nudgee. However Ms Maier questions such reliance upon rail services to the CBD, as she notes that many people use other than rail services, and are not employed in the CBD. She argues that Mr Brown has overemphasised the relevance of rail access to the CBD. Mr Brown relies upon his analyses of sales to demonstrate that relationship to the higher prices paid for property with superior rail access, but advises that proximity to rail services is not a major consideration in his analyses.
Mr Brown argues that Sale 3 (14 St Conel Street), is close by to a local waterhole, but Ms Maier notes that the sale is about 5 lots removed, and more elevated from that waterhole. She also argues that the new estate location of that sale would make that a more attractive property than the older area of the subject land. She also notes that 14 St Conel Street is further removed from the Brisbane Airport runway noises. On those comparisons she sees Sale 3 (14 St Conel Street) as much more superior than $12,000 above the subject land. Mr Brown argues that the close proximity of that estate to the rear of a cemetery reserve would also impact the attractiveness of that area.
Ms Maier agrees that Sale 1 (30 Lang Terrace) is a superior property, but argues that it is a much more superior location than considered by Mr Brown. However she concedes that Sale 1 is perhaps correctly assessed at about 30% superior to the subject land (transcript 16). Mr Brown advises that in his assessment of that sale, he had allowed for the heavy "rat-running" traffic along Oates Parade to the rear of the sale land at that time. He advises that at the relevant date heavy vehicles regularly used Oates Parade as a route between Toombul Road and Nudgee Road. He advises that has subsequently been alleviated by the introduction of roundabouts. The sale also gets some noise from busy Toombul Road.
In respect of his Sale 2 (82 Meymot Street), Mr Brown clarifies some confusion by Ms Maier in respect of the street numbering of that sale property. He advises that the existing older dwelling to the north-west of 82 Meymot Street was relocated to allow for the new brick veneer dwelling, subsequently now constructed upon the sale land (Exhibit 2 – p.5). Ms Maier advises that current street numbering show the older dwelling as 82 and the new dwelling as 84 Meymot Street. Mr Brown concedes that his street numbering of Sale 2 should really be 84 Meymot Street, and I will refer to that sale as the correct number. While she admits that Sale 2 (405 square metre) is much smaller than the subject land (607 square metres) she argues that the width of the two parcels seem to be comparable. Mr Brown provides no evidence of the width of Sale 2, but argues that the difference in area, and the further distance from the CBD of Sale 2 (about 1.5 kilometres) balances the impact of flooding upon the subject land. Mr Brown notes that Sale 2 is close to both the Banyo Railway Station and the Virginia Golf Club. Ms Maier argues that she could accept Mr Brown's comparison with Sale 2, if the flooding problem did not occur. It is noted that the subject land has a frontage of 13 metres.
Mr Brown concedes that he had not enquired as to whether any of his Sales 1, 2 or 3 were flood prone, but suggests that Sale 2 (84 Meymot Street) would be subject to some flooding concerns during heavy rains. However he provides no evidence to support that opinion.
The key sale is clearly Sale 4 (42 Station Avenue), and Ms Maier agrees that Sale 4 is larger in area, and has similar flooding problems. She notes that on a rate per square metre basis, based upon the applied value of $92,000 for Sale 4, the subject land could have a value of $83,349. She argues that reflects an increase of 68% from the previous valuation of the subject land, which she also feels is incorrect. While she agrees that Sale 4 is slightly lower, she argues that the impact of flooding is not dissimilar. She argues that on an area basis the subject land should be about $68,000.
To explain his method of analysis of the improved Sale 4, Mr Brown advises that he had used a replacement cost of $900 per square metre from the basic industry standard code for that type of building with high ceilings. He advises that was a higher cost rate than normally used for replacement costs for residential buildings of that age. To that replacement cost he had then depreciated that cost by 40%, concluding an added value of $84,250, including fencing and landscaping. The applied value for Sale 4 of $94,000 is seen as appropriately less than the $100,000 for the subject land, reflecting the closer proximity of the sale to Cannery Creek, and its slightly lower elevation, which makes it more flood prone. He notes that the small difference of 63 square metres in area of those two properties would reflect little difference in value in the marketplace, and the greater impact of flooding at 42 Station Avenue would be the difference between those two parcels. However it is noted that 42 Station Avenue is a wider parcel than the subject land (Exhibit 2 – SmartMap). Mr Brown has also made some allowance on 42 Station Avenue for the detrimental effects of the large drainage pipe culverts across Cannery Creek near that property.
Ms Maier also questions Mr Brown's analysis of his sales, which she argues has made no allowance for the sales commissions payable to the agents for those sales. Mr Brown rejects that assumption, as he notes that the actual sale price reflects the true market value at the date of sale, and the commission to agents, if any, occurs after the sale has concluded. He also notes that he also has sales where no agent fees were involved, which support his sales level of value.
In his concluding remarks, Mr Fisher notes that Ms Maier's comments about the lack of flooding upon Sales 1, 2 and 3 are unsupported by evidence, and caution should be applied in their adoption. Mr Brown also advises that pro rata analysis of sales would not be appropriate in the subject area, although it has some application in very highly valued and much sought after properties such as riverfront lands. He also notes that relativity in the subject area had been established for many years, and had been retained in the subject matter, until further deductions had been allowed following the objection and preliminary conferences.
Decision:
Changes in the valuation –
I turn first to the appellant's claim that statistical indicators would appear to be in conflict with Mr Brown's valuation, which discloses an increase of about 75%. Apart from the obvious difference in the period of statistical indices provided by the appellant for the year 2004, the use of statistical indices is not in itself a reliable measure of the value of a property.
Now a thorough understanding of community statistical criteria may be seen to be helpful in understanding the market forces existing in the community. However it does no more than seek to measure the various factors influencing the minds of buyers and sellers who seek to arrive at a figure which both parties agree to transfer the ownership of the land. That was clearly defined in the respected text of "Land Valuation and Compensation in Australia" 4th edition by Rost and Collins, (1993), which notes at p.37:
"Viewed broadly, the value of land, particularly urban land, is created or enhanced largely by the provision of public works and utilities, transport facilities, industries, community settlement, and favourable economic conditions. The market value of individual parcels of land is, however, determined in the market by buyers and sellers. The land valuer, by analysing transactions is in a position to interpret the market and to make valuations based on sales data."
While I am aware that such percentage rises in values are often of concern to appellants in seeking to have confidence that their personal property has been fairly treated in any valuation, they in fact do not prove conclusively that an error has been made in the valuation process. Such rises may, at best, be an indicator to owners that they should further investigate the valuation, but there may be many reasons why a valuation is changed at what would appear to be a rate out of line with some overall statistical percentage.
This matter has been considered many times by the courts, and I note from precedent, that a large increase in itself is not evidence of some error in the valuation. I note, for example, in the decision of NR and PG Tow v Valuer-General (1978) 5 QLCR 378, where the Land Appeal Court said at 381:
"It follows that a large increase over and above the previous valuation is in itself not a relevant issue provided bona fide sales of comparable parcels support the new valuation."
That matter was also considered in CH and BD Henricks v The Valuer-General (1983) 9 QLCR 59, where in the Full Court of Queensland, Macrossan J (later CJ) said at 63:
"The percentage increase shown in the selected case was in each instance considerably less than the increase applied to the subject land as between the two valuation dates. The weakness in such a selective comparison is obvious as there could be any number of reasons why blocks in the same valuation area should increase at different rates over a period of five years."
As the Full Court said, there could be many reasons why parcels of land can increase at different percentage rates over a period of time. The real test is not the percentage increase in the unimproved values, but a comparison of the subject land with sales of comparable sites in the vicinity of the subject land at the time of the valuation.
Now I accept the appellant's advice that her major concern rests more with the resulting increase in her rating indebtedness to the Council, rather than the unimproved value of the subject land. That is a concern regularly expressed in this Court. But it is not the role of this Court to determine the appropriate level of charges for local government services. That was noted in Poole Island Holdings Pty Ltd v Chief Executive, Department of Natural Resources (RV98-913), 25 June 2001, where the Land Appeal Court said at para (3):
"The jurisdiction of this Court on appeal and the Land Court at first instance does not extend to a consideration of such matters as rates or rent, but is confined to valuations made under the Valuation of Land Act 1944. That was made clear by the Land Appeal Court in NR and PG Tow v Valuer-General (1978) 5 QLCR 378, where the Land Appeal Court said at 381:
'The Valuer General and the Court are concerned with finding unimproved value and not with the amount of rates that may be levied as a result. Rates are fixed by local authorities and may be varied annually according to the fiscal requirements of the Local Authority concerned. Any such variation may be made at any time during a valuation period and may be entirely independent of a new and increased valuation.'"
Impact of flooding –
I turn then to what is clearly a major influence in this matter, as it relates to the disability of flooding from the adjoining Cannery Creek. It is agreed by both parties that flooding is likely to be a regular ongoing occurrence, and the subject land, and the adjoining parcel at 42 Station Avenue are two of the most affected parcels in that small locality. It is agreed that 42 Station Avenue is about 1 metre lower in elevation than the subject land, and therefore is marginally more susceptible to flood inundation. The Council's advice also indicates that the highest recorded flood level (1 in 100 year frequency) has influenced the establishment of the Habitable Floor Level for new developments at 0.5 metres above the defined flood level of 3.5 metres (AHD). The impact of that development constraint is that any new extension upon 42 Station Avenue was likely to require a stepped floor level, also above the current level of the existing dwelling (Exhibit 2 – p.7 photo), similar to the existing dwelling upon the subject land.
The question then to be asked is how much is the adjoining 42 Station Avenue more affected by flooding levels, at something less than the 100 year maximum recorded flood levels. I believe it is reasonable to agree with Mr Brown that the frequency of flooding would not be significantly more at 42 Station Avenue than at the subject land.
I turn then to the appellant's concerns about the reliability of Council flooding advice in respect of future maximum flood impacts. While there was no evidence of any measurable hydrological advice in respect of the impact of "in filling" upon the creek catchment floodplains, there is a general public concern that such new developments may increase future flood levels. Indeed in river catchment such as the Nerang River floodplain on the Gold Coast, the local Council in that area now forbids uncontrolled developments. Evidence was given in WRB Small v Chief Executive, Department of Natural Resources (AV97-309), 16 April 1999, unreported at p.5 of those constraints, and their possible impacts upon the costs of filling of that large riverfront parcel.
In that matter the Member concluded that while pumping of sand filling was no longer allowed under the "Merrimac Flood Plain Study" of the Nerang River, it would seem sensible in determining the unimproved value of that 2.789 hectare residential site, to allow for costs on the original basis of pumping as it was originally developed. A similar approach was also taken in Capri Commercial Centre Ltd v Chief Executive, Department of Natural Resources (1999) 20 QLCR 257, at 261; and followed guidance in Alfred Grant Estates (Surfers Paradise) Pty Ltd v Valuer-General (1966) 33 CLLR 1.
However that principle has now been overturned by the decision of the Land Appeal Court in Landel Pty Ltd as Trustees and Lakes Investments Pty Ltd as Trustees for Lakes Unit Trusts v The Chief Executive, Department of Natural Resources and Mines (LAC 2002/0032), 12 September 2002, at paragraph [40], to be reported. That directs that the actual added value of filling is to be determined based upon the approved actual value of fill at the date of valuation by an alternative method, as the original approach is no longer available.
While it has no relevance in the current matter, it is noted in WRB Small (supra), that had the Member adopted the more expensive costs for trucking in the filling as now required by Landel, then the added value of filling of that very large riverfront parcel, would have been increased from a figure of 89,000 cubic metres by $6 per cubic metre or $554,000, including relocation of a sand barge, to 100,000 cubic metre by $12 per cubic metre or $1,200,000. The impact of those adjustments would have reduced the unimproved value of that parcel from $1,240,000 to about $594,000, which would seem very low for a large prime riverfront residential site occupying an entire reach of the Nerang River, in that prestigious locality of the Gold Coast.
Now while the implications of the decision of Landel have no relevance in the current matter, they support the appellant's concerns that ongoing developments in a flood prone catchment are seen as a serious problem in some areas.
In respect of the appellant's concerns that reliance upon the impact of the Wivenhoe Dam may appear too optimistic, I note that some flood studies have noted that the Wivenhoe Dam will only impact future flood levels if the rainfall occurs in that catchment area of the Brisbane River, and not in the adjoining Bremer River catchment. It is also noted that water levels in the dam must be maintained at a level less than the maximum level, in order to retard overflows at the dam. But those matters are not currently before the general marketplace, and it would be imprudent not to accept the best advice currently available from the Council, and other Government sources. I believe that Mr Brown's advice would be widely accepted in the marketplace, and therefore reflected in the sales evidence.
Comparison of sales –
In adopting comparisons with sales of vacant or lightly improved lands in the area, Mr Brown has followed a principle long favoured by the courts. That was clearly expressed in PH Clough v Valuer-General (1981-82) 8 QLCR 70, where the Land Appeal Court said at 76:
"It has been judicially laid down many times and in many jurisdictions that in ascertaining unimproved value, sales of unimproved land of comparable quality, situation, etc., to the subject parcel, if they are available, are to be preferred as the best guide for arriving at unimproved value. The reason is obvious. In applying such sales there is no room for error in analyzing the value of improvements."
That principle was also followed in R and MM Barnwell v Valuer-General (1990-91) 13 QLCR 13, at 17; WM and TJ Fischer v Valuer-General (1983) 9 QLCR 44, at 46; and Hans and Else Grahn v Valuer-General (1992-93) 14 QLCR 327, at 328.
In seeking comparisons with the improved sale at 42 Station Avenue, Mr Brown has followed guidance of the High Court in Maurici v Chief Commissioner of State Revenue and Anor [2002] 212 CLR 111, where, if some level of scarcity of directly comparable sales exists, then further comparisons by analysis of highly improved sales may be a way of determining the scarcity factor in an area. In the current matter, because of the agreed impact of local flooding, Mr Brown has sought to analyse the immediately adjoining sale at 42 Station Avenue, which also suffers from that flooding problem. While the "impact of flooding" and the "presence of a scarcity factor" may seem distantly related, it is the immediate effects of such a factor that could influence the values in this matter. I believe that Mr Brown's comparisons with the 42 Station Avenue sale was a prudent approach.
If I look then at the sales provided, I find the following comparisons:
Sale Area Analysed Value Comparison 1 (30 Lang Terrace) 771 square metres $145,000 Superior 2 (84 Meymot Street 405 square metres $90,500 Slightly inferior 3 (14 St Conel Street) 603 square metres $122,000 Slightly superior 4 (42 Station Avenue) 670 square metres $97,750 Slightly inferior Subject land 607 square metres $100,000 -
On those comparisons there is nothing to indicate that the Chief Executive has made a fundamental error in his calculations. However there is some room for analysis of his method of adjustment of Sale 4 (42 Station Avenue).
As noted in Clough v Valuer-General (supra), there can be room for error in analysing such highly improved properties. However Mr Brown has provided details of his adoption of a high cost rate from industry codes which would suggest that he has provided a generous approach to analysing the added value of those improvements. His adoption of the depreciation rate of 40% based upon his wide experience is not disputed. Whether the wider frontage of 42 Station Avenue would impact its relative value compared to the 13 metres frontage at the subject land, is a matter that would appear to have been allowed for by Mr Brown.
If I look then to comparisons with Sale 2 (84 Meymot Street) I note that Mr Fisher suggests that Sale 2 has a much smaller frontage than the subject land (transcript 17). Now while Mr Brown admits that he provides no evidence of the width of that parcel, its much smaller area would tend to suggest a width of 84 Meymot Street at perhaps 10 metres. An examination of the plan of survey of SP 146752 would confirm that distance, but generally based upon an average depth of about 40 metres for such older parcels, a width of about 10 metres would seem realistic. Whatever the effective width of 84 Meymot Street, its much smaller area of 405 square metres supports Mr Brown's opinion of a smaller lot, further removed from the CBD. I see no error in that assumption. The only matter affecting those comparisons with Sales 1, 2 or 3 is whether the flooding disabilities would override the usual location impacts.
To assess the impact of flooding, the best comparison is really the adjoining Sale 4 (42 Station Avenue). That parcel is lower in elevation, and would be more subject to inundation than the higher subject land. I note that the old relativity had been previously retained by Mr Brown, before he made a further adjustment of $10,000, following the preliminary conference. On that basis I believe that the flooding problem has been appropriately addressed.
Summary:
In summarising this matter I note that the onus to prove her case lies with the appellant, under s.45(4) of the Act. The presumption under s.33 of the Act is that the valuation of the Chief Executive is deemed to be correct unless proved to the contrary. It was also found that to succeed in her appeal the appellant must show that the Chief Executive either acted on a wrong principle of law, or made an erroneous calculation. That was directed by the High Court in Brisbane City Council v The Valuer-General (1977-78) 140 CLR 41, per Gibbs J at 56. That has not occurred.
Conclusion:
Having considered the whole of the evidence, I am not persuaded that the appellant has proved her case. The appeal is dismissed, and the unimproved value of Lot 1 on RP 73236 as determined by the Chief Executive in the sum of One Hundred Thousand Dollars ($100,000) is affirmed.
NG DIVETT
MEMBER OF THE LAND COURT
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