Massey v Department of Natural Resources and Water

[2008] QLC 88

LAND COURT OF QUEENSLAND

CITATION:	Massey v Department of Natural Resources and Water [2008] QLC 0088
PARTIES:	Leslie N and Doris M Massey (appellants)
v.
Chief Executive, Department of Natural Resources and Water (respondent)
FILE NO:	AV2007/0188
DIVISION:	Land Court of Queensland
PROCEEDING:	An appeal against an annual valuation of land under the Valuation of Land Act1944.
DELIVERED ON:	9 May 2008
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER:	Mr RP Scott
ORDER:	The appeal is dismissed.
CATCHWORDS:	Valuation – geographical features reflected in comparable sales.  Unimproved value – increase over previous valuation not relevant – comparable sales should be used.  Valuation – unwillingness of owner to sell land not relevant to value – sale must be assumed.
APPEARANCES:	Mr N Massey in person for the appellants. Mr GJ Smith Principal Lawyer, Department of Natural Resources and Water for the respondent.

Background

1. The landowners have appealed against the unimproved value attributed to land at 14 Equinox Street Taringa, being Lots 21 and 22 on Registered Plan 23620 Parish of Indooroopilly.  The respondent Chief Executive has placed a value of $330,000 on the land as at a relevant date of 1 October 2006 whilst the appellants contend to a figure of $300,000.  The lower figure was the value determined by this Court in an appeal concerning the same subject land as at a valuation date of 1 October 2004. 

2. Mr Massey gave evidence on behalf of the appellants and conducted their case.  He has no valuation qualifications or experience, but is a retired accountant having practiced in that profession for seventy years apart from a period spent on active service in the AMF and AIF in Australia and New Guinea.  Mr Uday Singh, a registered valuer was called by the respondent to provide valuation evidence.  He was not the valuer who determined the valuation that issued initially, but provided a valuation report leading to his confirmation of the valuation figure appealed against. 

3. The grounds of appeal were drawn in narrative terms including a range of matters which might be said to be of historical interest though not directly relevant to the issue of a determination of the value of the subject land under the provisions of the Valuation of Land Act  as at 1 October 2006.  In those grounds of appeal and subsequently in evidence the appellants raised a number of other matters which I feel that I should comment on. 

4. There was evidence that Equinox Street is a busy street with no constructed footpath and a very steep hill which the appellants must traverse to reach the bus stop.  Mr Massey described the bus services in terms which I understood expressed an opinion that they were inadequate. 

5. He mentioned that termites, snakes, red back spiders, scrub turkeys, cockatoos and crows are pests which occupants of the land must either manage or tolerate. 

6. Street parking is limited though apparently well utilised by surrounding house occupants with the effect that ingress and egress to the subject land is not always easy.  The land lies near a heavily vegetated piece of country which is said by Mr Massey to pose a fire hazard. 

7. In his valuation report, Mr Singh referred to three sale properties which he compared with the subject land.  As I understand it, those sale properties would enjoy similar advantages and suffer similar disabilities as those outlined by Mr Massey concerning the subject land.  Sale 1 in particular is relevant as it comprises a sale at 22 Equinox Street very close to the subject property.  It follows that the attributes and difficulties of the surrounding area referred to by Mr Massey would be reflected in the sale prices of comparable properties in the area.  There is therefore no justification for further allowance being made in valuing the subject land. 

8. Mr Massey said that the increase in the valuation of the subject property was higher than that reflected in the relevant consumer price index.  Whilst that may be factually correct it is not however a matter that is relevant to the valuation of land.  In Tow v The Valuer-General[1] the Land Appeal Court said:

   "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."

   [1] (1978) 5 QLCR 378 at 381.

9. Mr Massey made reference to non-Australians purchasing property at auction and to others whom he classified as being uniformed or novices in the real estate market.  He did not, however, sheet home those criticisms to the individual sales referred to by Mr Singh such that I would need to conclude that the sales were other than representative of the relevant market. 

10. Mr Massey made unexplained but critical reference to the respondent's understanding and application of the term "unimproved value". I do not fully understand that nature of his criticism, however I saw nothing in the evidence which led me to conclude that the Chief Executive, and in particular Mr Singh, had proceeded otherwise than in accordance with s.3(1)(b) of the Valuation of Land Act:

    "For the purposes of this Act –
    'unimproved value' of land means –

    (a)   …

    (b)in relation to improved land – the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require, assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist.

    (2) ..."

11. A further point made by Mr Massey was that property that was willingly for sale would not have the same value as one not for sale.  I understand his point to be that since the subject property is not for sale its value could not be determined by reference to the sale of properties willingly placed on the market.  That proposition can have no application in a case such as this as there is a requirement to place a value on the subject land and that is best done by reference to comparable market sales.  The requirement for a notional sale to be assumed was addressed by the High Court in Spencer v The Commonwealth[2] Isaacs J said:

    "To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration.  We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property."

    [2] (1907) 5 CLR 418 at 441.

12. I am of the view that the valuation evidence placed before the Court by Mr Singh is prima facie sound and was not shown to be otherwise in Mr Massey's cross-examination of the Mr Singh.  In particular, Mr Singh was not shown to have proceeded on the basis of any material error of fact or principle such that his opinion ought be disturbed.  In matters such as this the appellant adopts the onus of proving the Chief Executive's valuation to be wrong (s.33 and s.45(4) of the Act) an evidentiary onus not discharged by the appellants in this case.  Accordingly, the appeal is dismissed.

Order

The appeal is dismissed. 

RP SCOTT

MEMBER OF THE LAND COURT