Melit v Department of Natural Resources and Mines

[2003] QLC 5

LAND COURT OF QUEENSLAND

CITATION: Melit v Department of Natural Resources and Mines [2003] QLC 0005

PARTIES:  Trevor P and Marlene C Melit

(applicants)
  v

Chief Executive, Department of Natural Resources and Mines

(respondent)

FILE NO:  AV2002/0169

DIVISION:   Land Court of Queensland

PROCEEDING:  Appeal against annual valuation under Valuation of Land Act 1944

DELIVERED ON:  6 February 2003

DELIVERED AT:   Brisbane

HEARD AT:   Brisbane

MEMBER:  Dr NG Divett

ORDER: The appeal is dismissed, and the unimproved value of Lot 4 on RP 72489 as determined by the Chief Executive in the sum of $130,000 is affirmed. 

APPEARANCES:  Mr TPG Melit for the appellants
  Ms R Trigge for the respondent

Background:

1. This matter relates to 40 Gardner Street, Nundah, and described as Lot 4 on RP 72489, Parish of Toombul.  The subject land has an area of 713 m² and is located about 7.5 kilometres radially north-west of the Brisbane GPO, and within reasonable close access to the Nundah Village Shopping Centre (about 1 kilometre) and Toombul Shopping Centre (about 1 kilometre).  The subject land has good access to Gardner Street, and there is a pedestrian pathway along its north-eastern boundary, connecting Gardner Street and Glenhill Street, both of which are cul-de-sacs.  Gardner Street is bitumen sealed with concrete kerbing and channelling, and all normal urban utility services are available.  The subject land is designated Low Medium Residential under the Brisbane City Plan 2000, effective at the date of valuation of 1 October 2001.  The key issues are the nature of the land, comparison of sales, and the impact of storm water run-off upon the subject land.

2. On 25 February 2002 the Chief Executive issued a valuation of the subject land at $130,000.  Following an objection the Chief Executive confirmed that unimproved value on 25 June 2002.  The appellants have now appealed claiming the unimproved value should more properly be $70,000. 

3. Trevor Phillip George Melit appeared and gave evidence for the appellants.  Ms R Trigge, Senior Legal Officer, appeared for the respondent, calling evidence from Andrew Trevor Brown, the departmental registered valuer responsible for determining the valuation.

The Nature of the Land –

1. Mr Melit argues that the subject land has certain unique features which are not being fully considered.  When he purchased the subject land about 20 years ago, he commenced a long program of clearing up the adjoining old quarry site (Lot 11 on RP 77451), which adjoins the subject land to the west.  He argues that old quarry site has now become part of the redevelopment along Old Kedron Brook, which is now a public nature reserve well used by the public for passive recreational purposes.  Mr Melit had to construct special steps down into the quarry from his property in order to get access to the old quarry.  He argues those improvements to the quarry are now being used to increase the value of the subject land.  Mr Melit also argues that the public pathway along the north-eastern side detracts from the amenity of the subject land, and is a further area of maintenance required of himself.

2. However Mr Melit’s major concern is with the regular flooding of the site from a Council gully trap in the channelling at the end of the cul-de-sac on Gardner Street.  Mr Melit provides evidence of regular, but unsuccessful, communications with the Council seeking redress of that problem.  He advises that his proposal to the Council to divert the storm water down the pathway was rejected because of the risks inherent to other properties down slope of the subject land.  His other request to divert the water into the quarry area via a larger pipe across private land could also not be considered by Council.  The results of those rejections by the Council is that the subject land continues to experience regular flooding from the overflow of the channelling.

3. Another matter of concern is the eroding nature of the old quarry cliff face along the south-western side of the subject land.  While the current site is partly buttressed by large tree root structures, regular erosion is a recurring problem for the subject land.  Photographs were provided to demonstrate the precipitous nature of the land, including the overhanging sundeck along the cliff edge.  Mr Melit also questions Mr Brown’s description of the subject land as “falling moderately from Gardner Street”.  He argues that the land is steeper than as suggested, noting that it falls from about floor level on the north-eastern side to at least 16 steps (about 3 metres) on the south-western side of the dwelling.

4. Mr Brown advises that his description of a moderate slope covers such slopes, and argues that the irregular shape of the land, and those slopes, have been considered in his valuation, as well as its elevated position (20 metres AHD), suburban views across the treetops along Kedron Brook, and good breezes.  Mr Brown confirms that the subject land does not have City views, as properties with City views are valued considerably higher than the subject land.  However he argues that its location adjoining the Kedron Brook area provides good privacy from neighbours.  Mr Brown is aware of the storm water overflows, but argues that could be overcome, and he has allowed for that in his valuation. 

Changes in the Unimproved Value –

1. Another matter of concern to Mr Melit is the rapid change that has occurred in this valuation.  He notes that for the three previous valuations the unimproved value had remained at $60,000.  He now argues that the current unimproved value of $130,000 reflects an increase of 215%, which he argues is unreasonable.  He argues that either the previous valuations had been incorrect, or Mr Brown has now made a mistake.

2. Mr Brown rejects that conclusion, advising that properties along, or near Kedron Brook, have recently seen significant increases in values at sale.  He attributes that to the recent improvements by the Council along Kedron Brook for recreational purposes.  He advises that the lower valuations previously reflected the Kedron Brook area prior to the redevelopment.  Mr Brown notes that his Sale 1 is near Kedron Brook and reflects an increase of 220%, while Sale 2 (35%) and Sale 3 (30%) are removed from the Kedron Brook influence.  Mr Brown advises that similar trends are also evident on the Wooloowin side of Kedron Brook.  Kedron Brook is now seen as a family area, and Mr Brown currently resides in the general area.

3. Mr Melit agrees that his estimate of the unimproved value of $70,000 may be slightly on the low side, and he now argues that a figure of $90,000 might be more appropriate.

Comparison of Sales –

1. Mr Melit provides no sales to support his estimate of the unimproved value.  Mr Brown provides the following sales of vacant or lightly improved lands to support his valuation:

   ·Sale 1 – (69 Hamson Terrace, Nundah – Lot 126 on RP 34687).  This is a 407 m² Low Medium Residential parcel located about 100 metres south-east of the subject land, and nearby to Kedron Brook.  The sale is smaller than the subject land, but has similar surface water flooding problems, and is at a lower elevation (8 metres AHD) – Exhibit 5.  The sale was flooded during the 1974 floods.  There is also a Council storm water drain across the middle of the property.  The sale overall is seen as far inferior due to its size and position.

   The sale sold in April 2001 for $134,000, was analysed at $122,000, and applied at $111,000.

2. ·Sale 2 – (236 Shaw Road, Wavell Heights – Lot 15 on RP 25032).  This is a 405 m² Low Density Residential parcel located about 1 kilometre north-west of the subject land.  The sale is on a busy road with access problems during heavy peak hour traffic along Shaw Road.  The sale requires some filling as it falls moderately towards Shaw Road.  The sale is seen as inferior in size, position and location, and overall is seen as far inferior to the subject land. 

   The sale sold in August 2001 for $95,000, was analysed at $92,000, and applied at $88,000.

3. ·Sale 3 – (29 Imbros Street, Wavell Heights – Lot 29 on RP 58718).  This is a 609 m² Low Density residential parcel located about 0.7 kilometres north-west of the subject land.  The sale is in a superior location, but is smaller in size and is surrounded by other residential uses.  It is slightly more elevated, and is near level with a regular shape.  While smaller in size, the sale is overall superior to the subject land.

   The sale sold in February 2001 for $177,000, was analysed at $171,000, and applied at $170,000.

4. Mr Melit has some knowledge of Sale 1, although he had not spoken to the purchaser.  He is aware that the dwelling on the adjoining parcel (Lot 127) had to be modified in order to sell the separate Lot 126 (Sale 1).  However he notes that all of Mr Brown’s sales are above the street level, compared to the subject land which is below Gardner Street.  Mr Brown estimates that about $5,000 might have been involved in modifying the dwelling on Lot 127.

5. In seeking comparisons with his sales evidence, Mr Brown advises that he had to reconfigure the previous relativities in some places due to the changing market forces for properties along Kedron Brook.  He now argues that those new relativities are being maintained, while the overall market level continues to keep rising with the recent trend for high demand for inner suburban properties out to 6 to 8 kilometres from the Central Business District (CBD). 

6. Mr Brown also advises that while his Sale 1 was a related sale (a brother), the purchaser works in real estate and was an informed prudent purchaser.  The sale is also in line with similar located properties.  However, because of the large increase in price paid, Mr Brown had only applied a conservative application of $111,000 to that parcel.  The large percentage increase in Sale 1 (220%) relates only to the unimproved value of Lot 126, and not the former unimproved value of the combined parcel of Lots 126 and 127 prior to the sale. 

Decision:

1. Before considering the evidence in this matter, I am reminded by Ms Trigge that this Court is not an investigating body, and it is not for the Court to investigate the matter for the appellant.  Indeed the role of the Court was clearly identified in BT Dillon v Valuer-General (1986-87) 11 QLCR 231, where the Land Appeal Court said at page 233:

   “The Legislature has not given this Court any investigatory powers under the Valuation of Land Act. If the Appellant’s case is not strong enough in its own right to establish the values contended for or to disprove the Valuer-General’s values, the Court is not empowered of its own volition to probe the fairness or correctness of the Valuer-General’s values and by this means arrive at its own estimate of value.”

2. The role of the Court was also clarified in the decision of JL and I Qualischefski & Ors v Valuer-General (1979) 6 QLCR 167, where the Land Appeal Court said at page 172:

   “The reasonableness of the allowances that have been made is always open to challenge on objection or appeal. However upon appeal a statutory onus of proof is cast upon the appellant and he has to accept, within the confines of the grounds set out in his Notice of Appeal to the Land Court, the burden of proving the Valuer-General incorrect. 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 contradiction 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 comparison with valuations made by the Valuer-General in respect of comparable properties.”

3. In respect of the statutory onus cast upon the appellant in this matter, I note that is directed by the Legislation, where s.45(4) of the Valuation of Land Act 1944 states in respect of an appeal against an annual 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.

4. In respect of Mr Melit’s concerns that the percentage increase in the unimproved value may reflect some error on Mr Brown’s part, I am directed to the decision in NR and PG Tow v Valuer-General (1978) 5 QLCR 378, where the Land Appeal Court said at page 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.”

5. In seeking guidance as to how the evidence of comparable sales may influence the value of the subject land, I note that the value of land was clarified by the High Court of Australia in Spencer v The Commonwealth of Australia (1907) 5 CLR 418, where Isaacs J (later CJ) said at page 441:

   “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.”

Comparison of Sales –

1. That leads me to the comparisons provided by Mr Brown in the current matter.  On the evidence I find the following comparisons:

Sale	Area	Applied Value	Comparison
1 2 3 Subject	407 m² 405 m² 609 m² 713 m²	$111,000 $88,000 $170,000 $130,000	Far inferior Far inferior Superior -

1. On that evidence there is nothing to indicate that Mr Brown has either followed a wrong principle, or made a serious error of fact. If I then consider s.33 of the Act I find:

   “33.  Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the Chief Executive shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered.”

2. Under s.33 of the Valuation of Land Act, the onus to prove his case falls squarely upon the appellant.  Unless the appellant can prove that the Chief Executive has made an error, the appeal must fail.  This was established by the High Court in Brisbane City Council v The Valuer-General (1977-78) 140 CLR 41, where Gibbs J found at page 56:

   “In my opinion once it is shown that in making the valuation the Valuer-General acted upon a wrong principle or made a serious error of fact, the presumption created by section 13(7) is rebutted.” 

   Section 13(7) as it then was is now section 33.

Conclusion:

1. Having considered the whole of the evidence I am not persuaded that the appellants have proved their case.  The appeal is dismissed, and the unimproved value of Lot 4 on RP 72489 as determined by the Chief Executive in the sum of $130,000 is affirmed. 

NG DIVETT

MEMBER OF THE LAND COURT