Milner and Repatriation Commission

[2006] AATA 10

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 10

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/394

VETERANS' APPEALS DIVISION		)
Re		STANLEY MILNER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member Robin Hunt

Date9 January 2006  

PlaceSydney

Decision The tribunal affirms the decision under review.

..............................................

Ms R Hunt
  Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – Pension – Assets test – Value of land – Decision under review affirmed.

REASONS FOR DECISION

9 January 2006	Senior Member Robin Hunt
SUMMARY

1.      Mr Milner applied to the tribunal for the review of a decision made by a delegate of the Repatriation Commission which assessed the value of his property at Hazelbrook in the Blue Mountains at $250,000. As a result, Mr Milner’s pension was reduced. Mr Milner claimed the valuation was not accurate but he has not satisfied the tribunal that the property has a lesser value. Accordingly, the tribunal has affirmed the decision under review for the reasons set out below.

BACKGROUND

2.     Mr Milner owns a house and land in Hazelbrook that was valued in 1997 at $70,000. It was re-valued in December 2003 at $260,000. On 2 August 2004, the land was valued for the respondent’s purposes at $250,000. Mr Milner requested   re-valuation of his property and, on 7 December 2004, after an onsite inspection, the Australian Valuation Office (the AVO) again valued it at $250,000.  As a result of this valuation, Mr Milner’s pension was affected by the assets test for calculation of pension entitlements and his pension was reduced in November 2004. The reduction was deferred 3 months due to a shift from the income test to the assets test in calculating his entitlements.

ISSUES

2.      The main issue in this matter is whether Mr Milner’s pension has been fairly assessed. In order to do so, I need to determine:

·What is the value of Mr Milner’s property in Hazelbrook?

·What is the combined value of Mr Milner’s assets, including other assets, if any?

ANALYSIS OF EVIDENCE AND SUBMISSIONS

3.      Mr Milner disputes the 2004 valuation of his Hazelbrook property and the reduction of his pension on this basis. Mr Milner told the tribunal he was not living on the property. He lived at another location and visited the Hazelbrook property from time to time. He said he and his family used to holiday there when he was younger. During his absence, adjacent owners had interfered with the land in ways he described to the tribunal. He said a large area of rock was removed and trees were chopped down illegally. Mr Milner told the tribunal he fought the neighbours in the Land and Environment Court but was not successful.

4. Mr Milner told the tribunal that the valuer did not use a plan that had a suitable scale and layout. He claimed the plan used made it impossible to measure distance away from other blocks and to compare old and new areas. He further complained that the valuer took the “access and building area together” but that not all of that area could be built upon. He said approximately 650m was a lane which could not be built on and that the frontage was small which resulted in costs for extra maintenance to the lane, services and landscaping. Mr Milner submitted the valuation did not take into account excavation on the south-east corner of the property which he believed should be deducted by virtue of s66M of the Conveyancing Act 1919 (NSW). Section 66M provides for abatement of the purchase price where land is damaged after the making of a contract of sale. Mr Milner highlighted subsection 66M(4) which provides that the amount by which the purchase price should be reduced may be recovered by the purchaser from the vendor as a debt. No sale of land was brought to my attention and Mr Milner did not claim that he had disposed of the property at Hazelbrook. While there is no sale of the Hazelbrook land involved in the present matter, I take the point that damage to land may affect its value.

5.      Mr Milner also produced copies of various plans and title documents including certificate of title, volume 3979 folio 206, and a plan described on the title as a plan deposited in the Land Titles Office, No. 2246. Mr Milner referred to this plan as the survey plan. The respondent tendered a later record from the Land Titles Office, DP 314577, which was certified by the Registrar General for NSW on 14 April 1978 and which contained a conversion table for feet and inches to metres. DP 314577 recorded that it showed part of the lots in DP 2246. The plan showed the whole of Mr Milner’s land as lot G. The measurements accorded with the measurements of Mr Milner’s land shown on certificate of title, volume 3979 folio 206 and DP 2246 with minor variations.

6.      Mr Milner also supplied a copy of the NSW Valuer General’s valuation of the Hazelbrook property made on 29 October 2004. The gross land value and net land value were both given by the NSW valuer as $162,000 at that date. The certificate stated that prior details of the property were gross land value of $90,700 as at 1 July 2001. Mr Milner noted in a written statement that the NSW valuation did not take into account improvements.

7.      Mr Milner also drew attention to certain provisions of the Crimes Act 1900 (NSW) in respect to crimes against property. He pointed out that a person who, with a view to making a gain, dishonestly destroyed or damaged property, was liable to a term of imprisonment. Mr Milner may have been meaning to draw attention again to the devaluation of his land due to the damage he complained of. I note that these provisions have no effect on the valuation of the property for the purposes of calculation of Mr Milner’s assets although they may give him a remedy against anyone who damages his assets.

8.      He made further reference to provisions in the Local Government Act 1993 (NSW) requiring judicial notice of certain local government documents and notices, as well as local council notices about site access. He produced a council document that set out, in relation to unformed roads, that the standard of construction must be suitable to permit access and turning by council service vehicles such as garbage and effluent removal vehicles. Mr Milner argued that there were deficiencies in his property that did not meet council standards and that these affected its value. He also thought the valuation amounted to an attack on his standing as a war veteran in breach of orders made in 1946.

9.      Lastly, Mr Milner submitted that the zoning on which the valuation was based was incorrect. Mr Russo of the AVO gave oral evidence to the tribunal about how he had made the valuation on which the respondent had relied. He told the tribunal that he had not simply made a roadside inspection but had walked over the property before making his assessment. He stated that he made his valuation on the understanding that the property was zoned Residential 2(b) and this allowed residential flat building development. Under questioning by Mr Milner he said that he had taken into account the axe-handle shape of the block. He observed that it was a large block. He had looked for comparable sales although most blocks sold were smaller and had only a single dwelling entitlement. He had attached no real value to the dwelling as it was 70 years old and in fair to poor condition. He gave evidence that the valuation of $250,000 was his opinion of the land value. He noted Mr Milner’s older plans were similar to the ones he had used in identifying the property. The measurements were within 3 inches on one boundary and a fraction of an inch on another. He was aware of the NSW Valuer General’s valuation at $162,000 but this did not change his opinion. Mr Milner said that the AVO carried out valuations when requested to do so by Veterans’ Affairs and not necessarily at the same intervals as NSW. 

10.     The tribunal allowed time for the parties to obtain further information as to the zoning of Mr Milner’s property. Mr Milner provided the tribunal with an extract from the Blue Mountains Gazette of 19 January 2005 along with some of the other information mentioned above. The Gazette described a 72% jump in land values in the Blue Mountains in the last 3 years. Mr Milner also wrote to the respondent. The respondent received letters from him on 2 and 7 November 2005 and forwarded copies of these letters to the tribunal. Mr Milner complained, among other things, about promises that he believed were made to veterans in the past that he argued were infringed by actions leading to his present situation.

11.     The respondent subsequently furnished to the tribunal a copy of letter dated 29 November 2005 sent to the AVO by the Environmental and Customer Services Group of the Blue Mountains Council. The letter set out details of various matters that concerned the property at 10 Addington Road, Hazelbrook, that is, Mr Milner’s property, as at 1 July 2004. The writer stated the property was zoned Residential 2(b) under Local Environmental Plan 4 (LEP 4).  It noted this LEP had since been superseded by Local Environmental Plan 2005 on 7 October 2005. However, the letter noted no changes to the development possibilities or use of the land. As well, I note that the decision under review concerns the position in 2004.

12.     The letter went on to advise that clause 9 of LEP 4 indicates development may be carried out on the site.  It explained that “residential flat buildings” (Class 1 or “units for aged persons” only, as defined, were permissible with consent). Dual occupancy was not permitted. Division 2 of LEP 4 contained provisions that related to residential flat buildings. While the writer was unable to specify an area of the property useable for development, he noted that the site currently was identified as having significant slopes on the south east, was bushfire prone and within a heritage conservation area. I note that the property nevertheless was considered by the council and by the AVO as suitable for residential flat development.

13.     The writer further advised that the council’s records did not indicate any development applications submitted between 1990 and the date of the letter. The council was unlikely to support subdivision of the land and was unable to provide detail of any other matter that might affect the property.

FINDINGS

14.     I am persuaded on balance that the value of the property at 10 Addington Road, Hazelbrook has been fairly assessed at $250,000. Mr Milner did not contest the additional asset values that brought his total set value to $250,802, so I accept that his total assets have been fairly valued at this figure. Mr Milner did not query the calculation of his pension entitlement on any other basis than the valuation of his property asset at Hazelbrook. Therefore, I will affirm the decision under review.

DECISION

15.     The tribunal affirms the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt

Signed:         .....................................................................................
Zoe McDonald
Associate

Date of Hearing: 13 October 2005
Date of Decision: 9 January 2006 
The applicant was self represented.
Counsel for the Respondent: Mr Bunn     
Solicitor for the Respondent: Department of Veterans’ Affairs