Mayne Spring Works Pty Ltd v Chief Executive, Department of Natural Resources
[1999] QLC 119
•12 November 1999
|
BRISBANE
12 November 1999
Re: Appeal against an annual valuation
Valuation of Land Act 1944
Valuation Roll No 6017
Local Government: Brisbane City
(AV98-181 and AV99-680)
Mayne Spring Works Pty Ltd
v.
Chief Executive, Department of Natural Resources
DECISION
Background:
These appeals deal with successive valuations of land at 147 Abbotsford Road, Bowen Hills, and described as Lot 2 on RP 847828, Parish of North Brisbane. The subject land is located about four kilometres radially north of the Brisbane Central Business District, it has an area of 1,551 m², and is zoned as “Service Trades” under the Brisbane Town Planning Scheme of 1987, and effective at the dates of valuation of 1 October 1997 (AV98-181) and 1 October 1998 (AV99-608). The key issues are relativity with adjoining parcels, and the impact of a proposed major elevated City-Valley Bypass arterial road.
The subject land is of fairly low elevation, with frontages at street level with Abbotsford Road, and slightly below the level of Allison Street at its rear alignment. The land rises gently from Abbotsford Road towards Allison Street. Both Abbotsford Road and Allison Street are full width bitumen sealed carriageways, with concrete kerbing and channelling. Vehicular access is available for inbound traffic along Abbotsford Road, and also from Allison Street, which has two access points to Abbotsford Road. Abbotsford Road is a busy traffic route from Clayfield to the City. All normal services are available. The subject land is used for industrial purposes as offices and workshops for the business of Mayne Springs Works Pty Ltd, and also as a site for an advertising sign. There is a mixture of metered and controlled parking for vehicles in the vicinity.
On 9 March 1998 the Chief Executive issued a valuation of the subject land for 1 October 1997 at $460,000 (AV98-181). Following an objection the Chief Executive confirmed that figure on 16 June 1998. The claimant has now appealed claiming the unimproved value should be $388,000. On 8 March 1999 the Chief Executive issued a subsequent valuation for 1 October 1998 at $610,000 (AV99-680). Following a further objection the Chief Executive confirmed that figure on 29 June 1999. The appellant also now appeals that figure claiming the unimproved value should more properly be $460,000.
Mr John Dickson, General Manager, appeared and gave evidence for the appellant. Mr John O’Rourke, Principal Legal Officer, appeared for the respondent, calling evidence from Mr Alan Ross Kirby, the Departmental registered valuer responsible for determining the valuation.
On objection by the respondent, Mr Dickson was constrained under section 45(4) of the Act, to leading evidence within the strict limits of his notice of appeal, which was quite definitive in respect of relativity with adjoining parcels, and the impact of the proposed new City-Valley Bypass arterial road.
The evidence:
(1) The nature of the land –
The subject land is a partly regular shaped parcel with parallel northern and southern boundaries, while the frontages to Abbotsford Road and Allison Street converge at about 40 to 50 degrees towards the north. The adjoining parcels to the north is 149 Abbotsford Road (Lot 23 on RP 912849), which is a triangular shaped parcel of 709 m². Lot 23 is also owned by the appellant, and is currently planned for redevelopment of a vacant old building at the relevant dates of valuation. As part of the Brisbane City Council (the Council) approval to redevelop Lot 23, a road truncation had been undertaken, which reduced the former Lot 239 on RP 9371 (now Lot 23 on RP 912849), from 716 m² to 709 m².
To the south of the subject land are two adjoining parcels at 143 Abbotsford Road (Lot 1 on RP 135090 – 911 m²), and 6A Allison Street (Lot 1 on RP 92153 – 739 m²). Those four parcels, together with a further two lots to the south of 143 Abbotsford Road and 6A Allison Street, form the entire island section between Abbotsford Road and Allison Street. It is agreed that the subject land, and particularly Lot 23 to its north, have good exposure to passing traffic along Abbotsford Road. All parcels are similarly zoned.
Mr Kirby argues that the triangular shape of Lot 23 to the north, and the more regular shape of the subject land, would tend to weigh more favourably in favour of the subject land. Mr Dickson refutes such comparison, noting that, in his opinion, the irregular shape of Lot 23 would not severely affect its value, compared to the subject land, particularly in view of the better exposure of Lot 23 to traffic moving virtually directly towards that lot. Mr Dickson argues that there have been approaches by potential tenants to the new building on Lot 23, who all regard that site as a very good site. Mr Kirby argues that, because of the shape of Lot 23, he would not seek to compare those two parcels, as a general rule, to establish relativity.
The adjoining land to the south of the subject at 143 Abbotsford Road and 6A Allison Street, are both more regular in shape, and Mr Kirby believes those direct comparisons with the subject land are more appropriate. However Mr Dickson, a long term occupier in the area, believes that the nature and exposure of all of the lands adjoining the subject, and the subject land, are subject to similar traffic and exposure impacts, and should be treated consistently in respect of their relativity to each other.(2) Relativity –
The key issue in this matter is the matter of relativities between the subject land and the direct adjoining parcels to the north and south. Mr Dickson argues that there has been a very large change in relativity between Lot 23, and 143 Abbotsford Road and the subject land. He supplies hearsay evidence from a neighbour at 6A Allison Street, that suggests that 6A Allison Street had also shifted in relativity to the subject land, suggesting, in Mr Dickson’s opinion, that an error had occurred in determining the unimproved value of the subject land.
Mr Dickson suggested the following changes in unimproved values support his conclusion:
| Parcel | UCV at 1.10.96 | Change | UCV at 1.10.97 | Change | UCV at 1.10.98 | Change |
| 149 Abbotsford Road (Lot 23) | $174,000 | - | $180,000 | 3.4 % | $180,000 | Nil |
| 143 Abbotsford Road | $270,000 | 23.3 % | $270,000 | Nil | $360,000 | 33.3 % |
| Subject land | $375,000 | 22.6 % | $460,000 | 22.7 % | $610,000 | 32.6 % |
Mr Kirby advises that in fact the unimproved values of the parcels in that area had been treated differently, due to the potential impact upon the market’s interpretation of the effect of the proposed City-Valley Bypass road discussed later. In essence, Mr Kirby notes that where lands had been designated as lots affected by the proposed roadway, then those lots had been given the benefit of any uncertainty which might accrue to those parcels, and their unimproved values had not been changed. Other lots in that area, which were not shown to be affected by the new roadworks, were compared with sales of comparable parcels in the area, and increased in accordance with the market. On that basis 6A Allison Street and 149 Abbotsford Road, were both identified as “affected lots”, and their unimproved values were not altered. 143 Abbotsford Road and the subject land, according to Mr Kirby, were increased according to the market determined by comparative sales. However there was no evidence of sales supplied to substantiate that conclusion.
(3) The City Bypass Road -
A key influence in the change in relativity is clearly the perceived impact of the proposed City-Valley Bypass deviation, which is intended by the State Government to improve traffic flows from the western suburbs to the airport and port, and to avoid congestion in the Central Business District. A spin-off from that Bypass road is seen to be improved access in the commercial precinct at Mayne to the arterial road network, which is predicted to improve accessibility and increase traffic flows on Abbotsford Road. However it is acknowledged that there could be some impact upon direct access to properties fronting the road in busy times. At the area of the subject properties the Bypass will be an elevated structure, above the surrounding lands in Abbotsford Road and Allison Street.
Mr Dickson argues that the impact of the Bypass road was likely to have a devastating effect on the sales of properties along that corridor, and hence the values of the land, and the increase noise from traffic on the elevated structure would be a major problem for the appellant. Mr Dickson also foresaw potential problems in achieving the redevelopment of the new building on Lot 23 to the north.
Mr Kirby notes that where a property such as 149 Abbotsford Road (Lot 23), and 6A Allison Street, were to be partly resumed for the Bypass road, any compensation for those resumptions would be made on the premise that the public works did not exist at the date of resumption. The owners were therefore to be reimbursed for their loss of land, without any undue change in the value of the land as a consequence of the Bypass road, in accordance with the principle established in Pointe Gourde. However while Mr Kirby made no such allowance in his current valuation for rating purposes, he argues that he has given any benefit of doubt to the owners for the uncertainty how much the Bypass road would have affected market expectations for those lots. For that reason he chose not to apply any increase to lots which were designated as “affected lots” in the Environmental Impact Assessment Study for the Bypass road (Exhibit 5).
In examining Exhibit 5, I note that the principal intention of that impact assessment study is to identify lands which would be subject to compensation negotiations under the Acquisition of Land Act 1967 as amended, and Council policies. The designation of 149 Abbotsford Road and 6A Allison Street as affected properties, is intended to identify those lots, and only those lots, which could be eligible for compensation. The principles of that Act are that the only lands which are directly involved in any resumption action, have the right to object and appeal the process of resumption. The matter of any adjoining owner, whose land is not taken by compulsory process for the public works, is not recognised by the law as compensable.
However the impact of the Bypass roadworks is likely to have an influence upon a wider range of properties beyond those listed in the impact assessment study. Mr Kirby acknowledges that, but concludes that as the Bypass road would be an elevated structure, much of the noise of traffic will be directed upwards and away from the subject land. Mr Kirby further argues that, on balance, he believes that any disability accruing to the subject land as a result of any difficulty of access to that land from the enhanced roadworks, will be at least balanced by an improvement in the overall accessibility and exposure from the improved traffic flows, which should provide an “impetus for growth and development” (transcript page 19). Mr Kirby also notes that the rear access to the subject land from Allison Street would not suffer from the heavy traffic flows generated by the Bypass road.
Mr Kirby also discounts any potential uncertainty in the mind of a prudent buyer in respect of falling objects from the elevated structure. Mr Kirby speculates that any such risk could be more than balanced by increased demand for the smaller number of lots available in the area, following the resumption of a range of parcels for the Bypass road. However, in the absence of any definitive evidence to that end, such speculation by either party adds little to my considerations.
Decision:I turn first to the nature of the notice of appeal and note that the appellant confined his grounds of appeal to relativity with adjoining properties, and to the impact of the Bypass road. In this respect I am directed to the requirements of the Act, and note that section 45(4) states, in respect of the lodgment of an appeal against a valuation:
“45(4). 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.”
In this matter I note that it has been noted in previous cases, that the Land Court is a Court of statutory creation and its jurisdiction is bestowed by statute, and there is no inherent jurisdiction. Because it is a court of limited jurisdiction, it must only assume jurisdiction within the specific authorities of the legislation. That was determined, for example, in JJ Bidner v The Valuer General (1992-93) 14 QLCR 88, where it was noted at page 93:
“The practical consequence for the appellant is that the Court only has jurisdiction to hear the appeals if section 21 of the Valuation of Land Act 1944 confers that jurisdiction. The requirements of section 21 are mandatory and constitute conditions precedent to the jurisdiction of the Court.”
Such was also found in City of Gold Coast – Gold Coast Milk Pty Ltd and South Coast Co-operative Diary Association Ltd v The Valuer General (1983) 9 QLCR 13, where the President said at page 17:
“The Land Court is a Court of statutory creation and its jurisdiction is likewise bestowed. It has no inherent jurisdiction. It is, therefore, a Court of limited jurisdiction and it must necessarily only assume jurisdiction when and in the manner in which the Legislature authorises it to do so.”
Clearly as noted by previous cases this Court has no power to ignore the directions of the Act in this matter. I turn then to the meaning of “adjoining properties”, and note that the ordinary use of the word adjoining is taken to mean to be contiguous with something (The Concise Oxford Dictionary). That has been further clarified by the Courts wherein New Plymouth Borough Council v Taranaki Electric Power Board [1933] AC 680, the Privy Council determined the word to mean “co-terminus with”. The word “adjoin” was also clarified in the findings of Re Ecclesiastical Commissioners for England’s Conveyance [1936] Ch. 430, where at pages 440 to 441 Luxmoore J clarified that “adjoining” means “that which lies near so as to touch in some part of the land”. Luxmoore J went on to note that the difference with the use of the word “adjacent”, which he concludes to mean to lie near by, but not actually in contact with the land.
In the context of the current matter, the notice of appeal specifically referred to “adjoining properties”, which can only be concluded to refer to 149 Abbotsford Road to the north, and 143 Abbotsford Road and 6A Allison Street to the south.
In respect of the nature of the land, there is an issue of dispute between the parties in their understanding of the impact of the triangular shape of Lot 23 (149 Abbotsford Road) upon its value, compared to the more rectangular shape of the subject land, and the two adjoining lots to the south of the subject land. I note that when valuing a land parcel one of the important factual matters that needs to be considered is the dimensions of the parcel, which among other factors could have an impact upon the final determination of value.
I note also that in comparing a parcel of land with sales of other parcels in order to assess the level of the marketplace, there is a level of judgment required seeking comparability. That was clarified in Brewarrana Pty Ltd v Commissioner of Highways (No. 1) (1973) 32 LGRA 170, where Wells J said at page 179:
“It is general valuation practice for sales characterized as comparable sales to be used as bases for the valuation of lands said to be similar. But allowances must always be made before such sales can be used. … there is no hard and fast rule by the application of which a valuer may, whatever the circumstances, draw the line that clearly separates the sales which are comparable from those that are not … some adjustment is always necessary; too much adjustment will render it unsafe to use a sale, subject to such a degree of adjustment, for the purpose of the reasoning process in the comparable sales method. … the assessment of the risks of adjustment is peculiarly within his (the expert valuer’s) sphere of skill.”
Clearly the impact of shape of a parcel is a subjective opinion, but the best guidance as to the level of impact is best found in a broad experience of the marketplace for parcels of varying shape. In the current matter Mr Kirby has relied upon his extensive experience in these matters to conclude that the difference in shape of Lot 23, and the subject land, would impact the relativity between them. In that regard he has followed guidance to be found in King Ranch Pastoral Co Pty Ltd v The Valuer General (1968) 35 CLLR 255, where the Land Appeal Court said at page 259:
“In not attempting to do this, Mr Walker adopted a method of valuing based on knowledge and experience rather than one lacking precedent and authority.”
That was further clarified in the wording of the minority decision of that case, where the learned Member noted at page 262:
“In Bingham v Cumberland County Council (1954) 20 LGR 1 at pp. 18 and 19, Sugerman J says: “In the absence of sufficient guidance to be had from sales, the valuer may find himself in a position resembling that to which Lord Romer referred in the Raja case (1939) AC at pp. 312 and 313, in which he will have no market value to guide him, and he will have to ascertain as best he may from the material before him what a willing vendor might reasonably expect to obtain from a willing purchaser for the land.” The valuer at arriving at his opinion in these difficult matters may have to draw upon his general knowledge and experience, including perhaps experience in other situations which, although lacking in complete comparability, may yet provide an experienced valuer with guidance and suggestions as to the general approach which may be made and as to considerations which may become relevant.”
In the current matter I accept Mr Kirby’s opinion that the difference in shape of Lot 23 and the subject land could have an impact upon the relative values of those parcels, which could make relativity between them subject to change over time.
However the greatest impact upon the relativity in that area has been the potential impact of the proposed Bypass road, and how that may have influenced the minds of potential purchasers of land in that locality. The decision by Mr Kirby to adopt a policy of no change to properties which are designated as potential compensation matters in the impact assessment study, recognises the level of uncertainty likely to be attributed to those parcels. In that regard he has afforded a level of benefit to those owners, which was best clarified in the decision of the High Court in Commissioner of Succession Duties (SA) v Executor Trustee and Agency Company of South Australia Limited and Others (1946-47) 74 CLR 358, where Dixon J, said at page 373:“I have had the advantage of reading the judgment prepared by Williams J and agree in it. I should like, however, to add for myself that there is some difference of purpose in valuing property for revenue cases and in compensation cases. In the second the purpose is to ensure that the person to be compensated is given a full money equivalent of his loss, while in the first it is to ascertain what money value is plainly contained in the asset so as to afford a proper measure of liability to tax. While this difference cannot change the test of value, it is not without effect upon a court’s attitude in the application of the test. In a case of compensation doubts are resolved in favour of a more liberal estimate, in a revenue case, of a more conservative estimate”.
Whether sales in the marketplace would support either an increase or decrease in those properties is not clear, as there was no sales evidence supplied to the Court. Mr Kirby argues that there were sales to support an overall increase in the marketplace, from which he has concluded the current increase in the unimproved value of the subject land. However that is not a matter for consideration at this time. Whether Mr Kirby has also adequately allowed for any adjacency factor to the Bypass road, can only be speculated without sales to demonstrate the impact of that structure in the minds of a prudent purchaser of land.
In this respect I am also reminded that this Court is not an investigating tribunal, and guidance in that matter was clarified by the Land Appeal Court in JL and I Qualischefski and Others v The Valuer General (1979) 6 QLCR 167, at page 172:
“Neither this Court nor the Land Court in the subject jurisdiction may assume the role of an investigating tribunal requiring the Valuer-General to substantiate his case. This is in contradistinction to jurisdiction conferred under the Land Act.
In appeals of the nature of the subject, the onus which the appellant must assume is not an easy one to discharge without the assistance of a registered valuer who can lead evidence as to sales analyses and/or comparisons with valuations made by the Valuer-General in respect of comparable properties.”
In the end I am reminded that it is the responsibility of the appellant to prove his case on this matter. On the evidence supplied I believe that responsibility has not been discharged. I note also that section 33 of the Act directs that any valuation by the Chief Executive is taken to be correct unless proven to the contrary. The appellant has not demonstrated that the Chief Executive has either made a serious error of fact, or has used a wrong principle. (see Brisbane City Council v Valuer General (1977-78) 140 CLR 41, per Gibbs J at page 56.
Conclusion:
Having considered the whole of the evidence I am not persuaded that the appellant has proved his case. The appeals are dismissed, and the unimproved values as determined by the Chief Executive in the sum of $460,000 (AV98-181), and $610,000 (AV99-680) are affirmed.
N G DIVETT
MEMBER
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