McCallan v Valuer-General

Case [2014] QLC 55

LAND COURT OF QUEENSLAND

CITATION: McCallan v Valuer-General [2014] QLC 55
PARTIES: Ian Peter & Jennifer Anne McCallan
(appellants)
v
Valuer-General
(respondent)
FILE NO: LVA391-12
DIVISION: General Division
PROCEEDING: Appeal against valuation under the Land Valuation Act 2010
DELIVERED ON: 17 December 2014
DELIVERED AT: Brisbane
HEARD ON: 21 August 2013
HEARD AT: Innisfail
MEMBER: WL Cochrane
ORDERS:

1.     The appeal is allowed.

2.     The site value of Lot 8 on SP132625 is determined in the amount of three hundred and forty-five thousand dollars ($345,000) as at date of valuation 1 October 2011.
CATCHWORDS:

Land Valuation Act 2010 ― Statutory Valuation – unimproved value – residential land – presence of easement – scarcity of comparable sales.

Lawson v Valuer-General [2012] QLC 27
Nimmo v Department of Natural Resources and Mines [2005] QLC 28
Rodney v Valuer-General [2014] QLC 26
Steers v Valuer-General [2012] QLC 12
APPEARANCES: Appellants in person.
Mr P Prasad – Legal Officer for the respondent.

Background

  1. This is the decision in an appeal in respect of land located at 43 Royal Palm Avenue, Cardwell, in North Queensland which land is otherwise described as Lot 8 on SP 132625, Parish of Ellerbeck, County of Cardwell. 

  2. The land has an area of 941 m² and is a marina water front allotment within a development known as the Port Hinchinbrook Estate, which is an integrated oceanfront and waterfront development. 

  3. The valuation appealed against was made as at 1 October 2011 effective from 30 June 2012.

  4. The original valuation for the land issued at $420,000 but, upon objection by the appellants, was reduced to $415,000.  As a consequence of a preliminary conference conducted in this matter the valuation was subsequently reduced further to $395,000.  That is the valuation for which the respondent, Valuer-General, contends.

  5. In their notice of appeal the appellants contend for a valuation of $250,000 and identified the following grounds of appeal:

    “L8 SP132625
    43 Royal Palm Avenue, Cardwell

    Appeal on Decision of the objection to site land valuation

    The decision on the objection to site land valuation has been made on Ground 2 of the objection:

    1)adverse characteristics

    2)unrecorded disability

    We believe that under Ground 2 full consideration has not been given to:

    a.Lot 8 has a stormwater drain easement 4 metres wide for the full depth of the block giving a usable area of 782 sq.m.

    b.During Cyclone Yasi February 2011, the land under this objection and all surrounding blocks suffered complete inundation.  The area is now in an ‘orange zone’ under the flood mapping of the local council.  See attached map from the web site of the Cassowary Coast Regional Council.

    c.The subject land of this objection fronts the marina basin the infrastructure of which was destroyed by Cyclone Yasi in February 2011.  At the date of valuation, October 2011, the marina remained obstructed, undredged and the infrastructure (including street lighting) unrepaired.  Water access is heavily silted and access can now only be made on high tide.  Since being subdivided the block has, over a…

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AGLC
McCallan v Valuer-General [2014] QLC 55
Case
[2014] QLC 55
Decision Date

CaseChat Overview and Summary

The appellants, in this case, sought to challenge a decision made by the Valuer-General under the provisions of the Land Valuation Act 2010. The dispute centred on the valuation of a specific site, Lot 8 on Subdivision 132625, and whether the Valuer-General had properly assessed the site value, considering factors such as adverse characteristics and unrecorded disabilities. The Valuer-General had determined the site value of the land in question, and the appellants contended that the valuation did not adequately account for certain conditions of the land, including the impact of Cyclone Yasi and restricted water access. The matter was heard in the Queensland Land Court.

The legal issues before the court involved the interpretation and application of the Land Valuation Act 2010, specifically the definition and calculation of the unimproved value of improved land, and the extent to which the Valuer-General must consider adverse characteristics and unrecorded disabilities in the valuation process. The court had to determine whether the Valuer-General's assessment of the site value was in accordance with the statutory requirements and whether the appellants' objections to the valuation were valid.

The court found that the Valuer-General had not appropriately considered the adverse characteristics and unrecorded disabilities of the land when determining its site value. The court held that the Valuer-General was required to take into account all relevant factors, including the impact of Cyclone Yasi and the restricted water access, in accordance with the provisions of the Land Valuation Act 2010. The court concluded that the Valuer-General's valuation did not meet the statutory requirements, and the appeal was allowed. The court determined the site value of Lot 8 on SP132625 to be three hundred and forty-five thousand dollars ($345,000) as at the date of valuation, 1 October 2011.

The court made specific orders to allow the appeal and to determine the site value of Lot 8 on SP132625 as three hundred and forty-five thousand dollars ($345,000) as at the date of valuation, 1 October 2011. The court's decision emphasised the importance of the Valuer-General considering all relevant factors when conducting a valuation under the Land Valuation Act 2010.

Orders

Orders of the court

1. The appeal is allowed.

2. The site value of Lot 8 on SP132625 is determined in the amount of three hundred and forty-five thousand dollars ($345,000) as at date of valuation 1 October 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

At the hearing the appellants’ case was set out as follows[1]:[1] Exhibit 1.Statement for Hearing of Appeal on Decision of the objection to site land valuationA.The decision on the objection to site land valuation has been made on Ground 2 of the objection:1)adverse characteristics2)unrecorded disabilityWe believe that under Ground 2 full consideration has not been given to:a.The subject land of this objection fronts the marina basin the infrastructure of which was destroyed by Cyclone Yasi in February 2011. At the date of valuation, October 2011, the marina remained obstructed, undredged and the infrastructure (including street lighting) unrepaired.b.Water access is heavily silted and access can now only be made on high tide. Since being subdivided the block has, over a number of years, had its water access severely restricted and is now completely tide dependent putting severe constraints on the use of the land. As evidence we have enclosed images showing the marina basin and entrance. Most of the vessels in these images are aground and the water depth in the remaining areas of water has an average depth of 300mm. Accessing the marina from the ocean often involves overnight anchoring in Hinchinbrook Channel waiting for a suitable tide to enter the marina. The pontoon now sits on the mud at low tide as does our boat. This appeal is brought pursuant to the provisions of the Land Valuation Act 2010 (LVA). The LVA made a number of significant changes to the valuation process which had previously been carried out pursuant to the provisions of the Valuation of Land Act 1944 (VLA). The LVA retains an obligation upon the Valuer-General to carry out a valuation of all properties throughout Queensland for the purpose of rating, land tax and other associated purposes. The respondent is required to comply in its conduct with the requirements of the Land Valuation Act when undertaking various valuations required. The LVA has brought about a change to the valuation approach insofar as under the previous Act, the Valuation of Land Act, all valuations were of unimproved value but now under the LVA valuations are broken into two categories: non-rural land which embraces residential, commercial and industrial land on the one hand and rural land on the other. Pursuant to the provisions of the LVA, the value of land to be valued by the respondent is, in the case of non-rural land, its site value which term is defined in the Act and for rural land, its unimproved value.[2] [2]See the discussion of the valuation process by His Honour Mr Smith in Lawson v Valuer-General [2012] QLC 27 [13]. The Land Valuation Act also draws a distinction between the unimproved value of improved land (Chapter 2, Part 2, Subdivision 4) and the value of unimproved land (Chapter 2, Part 2, Subdivision 5). Section 26 of the LVA provides a meaning for the “unimproved value of improved land” in the following terms: “26 What is the unimproved value of improved land(1) If land is improved, its unimproved value is its expected realisation under a bona fide sale assuming all site improvements and non-site improvements on the land had not been made.(2)However, the land’s unimproved value is affected by any other relevant provisions of this chapter.”

Ratio Decidendi

Legal Principle Established

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