Marshall v Chief Executive, Department of Lands
[1995] QLC 30
•3 May 1995
|
BRISBANE
3 May 1995
Re: Appeals against valuations -
Caboolture Local Government
AV94-457/8.
John F Marshall and Janice M Marshall
v.
Chief Executive, Department of Lands
D E C I S I O N
(Hearing at Caboolture)
These are appeals (2) against determinations of the Chief Executive, Department of Lands, of the unimproved value of Lots 4 and 5 on RP 175396, parish of Burpengary, in the sum of $72,000 each, for the purposes of the Annual Valuation of the Area as at 30 June 1993.
Mr DR Lucas, registered valuer in the employ of the Department of Lands, wrote the valuations on behalf of the Chief Executive.
The appellants in their notices of appeal stated an amount of $60,000 each as their opinion of the value of the lots. However, in the hearing of the appeals they relied upon the opinion of Mr Russell Jackson, registered valuer. His valuation of each lot is in the sum of $62,000.
The appeals are brought on grounds which are summarised as follows:
" Common Grounds
1.Property is situated on a floodplain between Mathew Crescent and Burpengary Creek and is subject to regular flooding and subject to the restrictions of the Council's Flood Plain Management Policy.
2.Caboolture Shire Council has advised the hundred year frequency flood calculations indicate that 100% of the property may be below the calculated flood level.
3.Land is not commercial but residential use only. The land should not be residential because it is flood-prone - this makes the land undesirable.
4.Too much emphasis was placed on Burpengary land price increases without taking sufficient notice of the special disadvantages of this property. "
" Particular Grounds
Lot 4
(a)The northern corner of the property is an easement for access for the owners of Lot 2 and Lot 3 thereby reducing the size of the useable land area. This was not adequately taken into account.
(b)The property carries the overflow channel for the large dam shared by Lots 5 and 6 thereby further reducing the size of the useable land area.
(c)Lot 4 is lower than an equally sized nearby property (Lot 6) (and therefore more subject to flooding) but Lot 6 is valued at $63,000.00."
Lot 5
"(d)Part of the property is comprised of a large (0.3ha) dam which significantly reduces the size of the useable land area.
(e)Lot 5 is lower than an equally sized adjacent property (Lot 6) (and therefore more subject to flooding) but Lot 6 is valued at $63,000.00."
Mr JF Marshall gave evidence, whilst Mr Jackson and Mr Lucas spoke to their respective valuations.
Lots 4 and 5 are of rectangular shape with an area of 2.001 hectares and are situated in Mathew Crescent, Burpengary, about 3.1 kilometres south-west of the Burpengary shopping centre and within walking distance of the Burpengary Railway Station, local shops and schools. Mathew Crescent is a bitumen-sealed road with earth verges. The lots are zoned "Rural Residential B" and are developed and used for this purpose by the appellants (Lot 5) and a member of the family (Lot 4).
The lots lie within the flood plain of Burpengary Creek. Mr Marshall said that the lots have been flooded in a range from minor flooding to 60% covered, about eight times since the appellants acquired the land. On enquiries made to local government, he was advised that about 80% of Lot 4 and 90% of Lot 5 may be below the estimated highest flood level (1972 flood) and that the whole of each lot may be below the 1:100 year flood level.
The lots lie within an area which is subject to the Local Government Flood Plain Management Policy. This policy places certain restrictions and requirements on development, provides special levels for building pads (300mm above the highest recorded flood level as determined by Council or above the 1:100 year level where that level has been determined by Council) and restrictions on filling - the general policy being that works may be undertaken subject to a nil net loss of flood storage.
The history of the nature of the development on Lots 4 and 5 may be taken from the evidence of Mr Marshall. Prior to subdivision, the area was used for farming. A dam had been constructed in about the location as shown on Annexure A and now principally on Lot 5. This facility had an attraction to the appellants which they capitalised on by siting the homes near and overlooking the dam - particularly with respect to Lot 5. Some thousands of metres of fill were imported for house pad purposes and levels raised above natural ground level by 1.5 metres or more. Filling for the surrounds of the pads was taken from the dam and access ways, spoon drains, etc., were constructed. The nature of the development as depicted on Annexure A and in other evidence would show that the developments have been well-planned, well-constructed and would present well in the marketplace. The problem that arose is that Lot 6 adjoining and valued for the purposes of this Annual Valuation at $63,000 unimproved, generally drains across Lot 5. There is evidence that floodwater (the whole area being a "backwater" area) takes longer to drain from Lot 6 than previously and for this reason Mr Lucas has depreciated the value of Lot 6. In other respects it is his submission that the subject lots possess an advantage in that were they unimproved at the relevant date, filling would not be allowed to the extent actually done which filling, after consideration by Local Government, has been allowed to remain. This, as I appreciate the evidence, can be quantified in terms of the amount of imported fill and not fill taken from the dam for the purposes of the surrounds to the building pads. Thus, in the circumstances, it is the submission of the Department of Lands that the provisions of s.3(4) of the Act come into play. The subsection provides as follows:"Notwithstanding anything contained in this section, in determining the unimproved value of any land it shall be assumed that -
(a)the land may be used, or may continue to be used, for any purpose for which it was being used, or for which it could be used, at the date to which the valuation relates; and
(b)such improvements may be continued or made on the land as may be required in order to enable the land to continue to be so used;
but nothing in this subsection prevents regard being had, in determining that value, to any other purpose for which the land may be used on the assumption that any improvements referred to in subsection (1) had not been made. "
The lots, in the opinion of Mr Lucas in valuation terms, because of this permitted development, possess a uniqueness which gives them an advantage over other lots on this frontage of Mathew Crescent. Briefly stated, the submission is this: The existing filling has been rendered lawful by Local Government. But were it not in existence at the relevant date (assuming that the lots were unimproved), filling would not be allowed to the extent of the existing filling. Hence the advantage.
I find that the reasoning of the Department is correct in law.
I turn then to the evidence of valuation. Mr Jackson based his calculations on sales of improved lots within the locality of the subject lands. He has not approached the valuation in terms of s.3(4) of the Act. Mr Lucas used sales of four parcels of land improved with clearing only for purposes of direct comparison with the subject lots. Three of these sales are subject to flooding. Sale 4 in Bassett Road, Burpengary, which sold in August 1992 for $52,000 and is valued for the purposes of this Annual Valuation at $54,000, is a completely flooded lot on a regular basis. Sale 3 in Fountain Road, Burpengary, has frontage to the lower reaches of Burpengary Creek which floods regularly but overall the lot is not as affected by flooding as are the subject lots. This lot sold for $63,000 in March 1992. Sale 1 which has frontage to the Caboolture River west of the highway in the corner with the Captain Wish Bridge and with about 8,000m2 out of flood, sold in August 1992 for $115,000. The remaining sale is of land nicely elevated in Thunderbird Drive, Burpengary, and out of flood. This lot sold for $78,000 in February 1993. The sale has an area of 8,000m2 and is in evidence for the purpose of demonstrating the level of value for small acreage sites without flooding problems.
In Clough v. Valuer-General (1980-81) 8 QLCR 70, the Land Appeal Court, commenting upon the use of improved sales in ascertaining unimproved value, said at p.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.
Because there is less room for difference of opinion as to value of the various items of improvement and comparison is thus simpler, it has been held that highly improved sales should be avoided in preference to sales comprising a lesser degree of improvement. "
The basic sales relied upon by Mr Lucas are relatively speaking of unimproved land, whereas the sales used by Mr Jackson were of land improved with residences and whilst his end result appears to be within reach of the value which should be applied (given that he had not considered the advantages spoken of by Mr Lucas and which I find should be considered as a matter of law), the established principles lead me to prefer the evidence of Mr Lucas.
When I come then to look at the particular grounds of the appeals, it may be said at the outset that neither valuer considered the small area of Lot 4 encumbered by the easement as having a demonstrable effect on value. When these grounds were put to Mr Lucas, his answers, briefly, were as follows:Ground 1Admitted.
Ground 2Agree.
Ground (a)No demonstrable effect on value.
Ground (b)Agree - but channel is tastefully maintained, is visually pleasing, is not unattractive and has no adverse effect on value. (The photographs tendered in evidence would support these opinions).
Grounds (c)&(e) Lot 6 is affected by groundwater on Lots 4/5 - stays wet for longer periods.
Ground 3Agree floodprone - suitable for rural residential use (actual use).
Ground 4Basic sales not in immediate vicinity and comprise (except for one sale) land subject to flooding in whole or in part.
In relation to the grounds specific to Lot 5, the evidence of Mr Marshall is that the dam had an attraction in the location of the homesite.
On perusal of the whole of the evidence, I cannot conclude that the applied values are wrong. Accordingly, the appeals are dismissed and the decisions of the Chief Executive affirmed.
President of the Land Court
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