Moorton v Chief Executive, Department of Lands
[1995] QLC 53
•13 July 1995
|
BRISBANE
13 JULY 1995
Re: Appeal against Annual Valuation
Valuation of Land Act 1944
(AV94-290)
Peter and Shirley Moorton
v.
Chief Executive, Department of Lands
(Hearing at Brisbane)
D E C I S I O N
The Chief Executive, Department of Lands, decided that an unimproved value of $170,000 should be placed on the land which is the subject of this appeal. The appellants objected to the valuation of the Chief Executive and, following dismissal of that objection, appealed to this Court. The appellants say that the unimproved value of the land should be $155,000. The valuation is to be effected as at 30 June 1993.
The land, the subject of this appeal, comprises an area of 405m2 and is located at 67 Oceana Terrace, Manly, in an area described as "Manly Hill" in the Division of Wynnum, Brisbane City Council. The land is improved with a single residential dwelling which is occupied by the appellants. The property is situated on the corner of Oceana Terrace and Valetta Street which are both bitumen sealed, dual carriageways with concrete kerbing and channelling. The usual services are available. The land is gently sloping and is of elongated shape with the long boundary facing towards Moreton Bay. A matter of dispute between the parties is whether this aspect affords the subject land "excellent views" or merely "glimpses" of the bay.
Mr Peter Moorton appeared and gave evidence on behalf of the appellants. He is quite familiar with the Wynnum area, having lived there for 15 years. He is retired and earns his retirement income from property. Mr Venerando Di Salvo, registered valuer, conducted the case on behalf of the Chief Executive and also gave evidence. He is employed by the Department of Lands.
Before descending into detail, it may be useful if I present the legal background against which this appeal must be viewed. In the context of the appeal lodged, I am to consider the question of the "unimproved value" of the subject land. Section 3(1)(b) of the Valuation of Land Act says this about the term "unimproved value":-"`unimproved value' of land means -
(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."
It is quite clear, from reading these words from the Act, that a sale transaction is hypothesised. It is this thread of the hypothetical sale which holds together the whole fabric of the law of the valuation of land and the nature of this transaction is no better expressed than in the following quotation taken from Spencer v. The Commonwealth 5 CLR 418:-
"To arrive at the value we have to suppose the land sold ..... not by 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 considerations. We must further suppose both to be perfectly acquainted with the land and cognisant 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."
It follows from this that evidence of sales that have taken place will be a guide to the assessment of value. In Clough v. The Valuer-General (1981-82) 9 QLCR 70 at 76 the Land Appeal Court made it quite clear that unimproved sales comprise the best evidence:-
"It has been judicially laid down many times and in many jurisdictions that in ascertaining unimproved value, sales of unimproved land of comparable quality, situation, etc., to the subject parcel, if they are available, are to be preferred as the best guide for arriving at unimproved value."
Notwithstanding what was said in Clough, it is also the case that maintenance of correct relativity of value is of importance for rating valuations and the values applied to comparable properties by the Chief Executive can also provide assistance (WM & TJ Fischer v. The Valuer-General (1983) 9 QLCR 44).
What I have set out above should provide a useful foundation for what is written later in this decision, however, it should also be instructive to Mr Moorton who, in this appeal, expressed concern about reference to sales evidence as a basis for the determination of value.
In an appeal such as this, the appellant is required to satisfy the provisions of section 45 (4) of the Valuation of Land Act 1944:"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."
The grounds of appeal may be summarised as follows:
1.The views over Moreton Bay from the subject land are not as good as is apparently reflected in the Chief Executive's valuation.
2.The subject land is valued excessively having regard to the values applied by the Chief Executive to other properties in the area (which were listed in the appeal document and presented in evidence).
3.Increase in traffic volume and noise.
I will deal first of all with the issue of traffic volume and noise. Mr Moorton gave evidence that there had been a considerable increase in through traffic in the section of Oceana Terrace where the subject land is located, however, there was no supporting evidence of vehicle counts or such like, nor reference to the period over which the claimed increase had occurred. He also said in evidence that given the volume of traffic on Oceana Terrace and the fact that the entrance to the subject land is a short distance only over the crest of the hill at the intersection of Oceana Terrace and Valetta Street, access into, and from, the block onto Oceana Terrace is hazardous. In oral evidence this was described variously as being "high risk", "singularly dangerous", and there being "an element of risk". This was disputed by Mr Di Salvo who said that he had no difficulty driving on Oceana Terrace near the subject land and in carrying out U-turns some distance below the intersection between Oceana Terrace and Valetta Street. Nevertheless, I think it reasonably clear that a house driveway located near a corner would be hazardous to use on occasions. The volume of traffic would undoubtedly be a consideration in deciding whether there was a frequently high risk in accessing the property. Whilst there is little evidence from the appellants on the matter of traffic volume and noise, Mr Di Salvo appeared to be of the view that there was no traffic volume problem affecting the subject land.
I turn now to the matter of views over Moreton Bay from the subject land. Here, as I mentioned earlier, there is a clear disagreement between the parties. Mr Moorton gave evidence that in 1988 a view arc of 90° of close and distant vistas to the north-east was available from the land, however, since that time two very high buildings had been built across the road from the subject land in an easterly direction, reducing the view arc to approximately 50°. Tree growth also impacts upon the available view, as do two other buildings apparently not as high as the two mentioned earlier. None of this evidence was disputed by Mr Di Salvo who described the views as "excellent", whereas Mr Moorton used the term "glimpses".
Apart from the oral evidence of Mr Di Salvo and Mr Moorton, the only evidence that I had to assist me in appreciating the issue of views was in the form of photographs tendered by Mr Di Salvo. This evidence included photographs taken at street level in front of the subject land showing the view towards Moreton Bay and my appreciation of these is that a house could readily be constructed on the subject to take advantage of this most pleasing aspect interrupted, to some extent though, by houses on the other side of the street and some trees. In my view, Mr Moorton has understated the outlook that the subject land enjoys towards Moreton Bay. If I am wrong in this conclusion then this can only be because the appellants have failed to adduce appropriate evidence. I might add that the photographic evidence tendered by Mr Di Salvo also showed Oceana Terrace and Valetta Street from a number of angles and none of these photographs included any vehicles travelling along either of these streets.
What I have written thus far with respect to the issues of traffic and views have been confined to the subject land. The question as to how and to what extent, if any, these characteristics impact upon the unimproved value of the subject land turn on comparisons with the basic properties. In his evidence, Mr Moorton included a schedule of some 32 properties which he said supported his suggested figure of $155,000. His schedule listed each of the basic properties, together with their unimproved value determined by the Chief Executive and the increases in value in both dollar and percentage terms between the 1993 and 1994 dates of effect, and between the 1994 and 1995 dates of effect. All of the values placed upon the basic properties were less than the $170,000 decided upon by the Chief Executive in the case of the subject land. No argument was advanced with respect to the rates of change of valuation between the 1993, 1994 and 1995 years. In any event, these matters would not have been relevant to the matter before me. Mr Moorton did not rely on any sales of land as evidence of value.
The schedule tendered included columns indicating that services and public transport available to each property was equal to that available to the subject land. A further column indicated whether traffic was better than, worse than, or equal to traffic affecting the subject land. I take this column to refer to the matter of traffic volume and noise mentioned with respect to the subject. No evidence was advanced as to how this matter of traffic impact was assessed, the assessment being simply put forward as a concluded opinion by Mr Moorton.
A further column headed "Position" was included, however, no information was included on the schedule with respect to this aspect. The areas of the basic properties were included on the schedule. Finally, there was a column headed "View" which listed by way of symbol whether the basic property had a view which was equal to, better than, much better than, or worse than the subject. None listed was worse than the subject, whilst two properties were listed with a symbol which I take to mean something better than "much better than".
I will deal with some of the basic properties in more detail, however, as a general proposition I would say that there was no clear evidence to indicate how the opinions about the view from each of these basic properties was arrived at. Whilst I appreciate that there is an element of subjectivity about a matter such as view, and even the language describing views suffers from a certain elasticity, there are certain objective factors to which the evidence could refer, in particular the objectivity afforded by photographs. The evidence does not show, for example, whether the views were compared according to whether they included the boat harbour or did not; whether the angle of the view was a relevant factor; whether the current intrusion of trees and/or buildings or the prospect of this was a consideration; and whether views are assessed at the natural ground level or at some other level. I note, for example, in the evidence that Mr Moorton refers to views from the building on the subject land and at least in one case (60 Oceana Terrace) views afforded from a building located on that basic property. Elsewhere Mr Moorton spoke of his basic properties having "excellent views from their normal retiring, lounging (area)". Such a method of comparison suffers in that it does not compare the properties on an unimproved basis. This is not to say that one ought not to have regard to the views that might be enjoyed from a house to be constructed on a particular piece of land in considering that particular attribute.
In his schedule of basic properties, Mr Moorton included properties at Crown Street, Southwick Street, Prospect Street and Coreen Street, Wynnum. Mr Di Salvo said that these properties were in a different market from the Manly Hill locality of the subject land in that the basic properties had a football oval nearby which was lit at night; were closer to the Ampol Refinery and other industrial development and generally exhibited a lower level of value. A perusal of the unimproved values which apply to these lands tends to support Mr Di Salvo's opinion in this regard. Mr Di Salvo described properties in Armytage Street, Lota, referred to by Mr Moorton as also being in a different market from that of the subject property. These comments only serve to reinforce the view that I have that the information presented by Mr Moorton on the schedule does little to advance the case founded in his grounds of appeal.
Having said this, there are three properties that deserve further mention in that they are properties which Mr Moorton suggested in evidence were particularly relevant in supporting the valuation the appellants contend for. The first of these is located at 107 Oceana Terrace, which was described in evidence by Mr Moorton as having better views than the subject and being larger in size. No other points of comparison were given in evidence, however, given that this basic block has an applied value of $147,000 yet Mr Moorton contends for a figure of $155,000 for the subject, it appears that the subject would be superior to this property in Mr Moorton's view. It was not revealed in evidence what attributes of superiority were relevant. The appellant also made particular reference to the property located at 80 Oceana Terrace. This has an applied value of $162,500 and was described by Mr Moorton as having unrestricted views of the bay. No other point of comparison was included, excepting for the type of information included in the schedule, outlined above.
The block located at 60 Oceana Terrace attracted most attention during the hearing. This block had an applied value of $162,500. Mr Di Salvo was aware of this property and provided evidence about it. Apparently there was a sale of this land in July 1991 for $165,000, however, at the time of the sale an adjoining property had a high wall constructed on it along the boundary with the sale property and on part of that wall was constructed a fence which encroached partially over the air space of the sale land. Mr Di Salvo described the wall as constituting a disability for the subject land in that not only was the wall itself an unattractive visage, but it was a factor that would need to be taken into account in the construction of a house on the sale land. The views from the sale land to the east were also inhibited by the house constructed on the adjoining land, according to Mr Di Salvo. He also said that extensive earthworks were carried out on the sale block, however, it is unclear to me as to whether these were necessary for the construction of a house on the subject land or only a requirement for the construction of a house on that land to an illegal height, as apparently did take place.
Mr Moorton put the view that the wall on the boundary between 60 Oceana Terrace and its neighbour did not impact greatly on the construction of a house on No. 60 and that in any event there was always the possibility that a similar wall could be constructed on the rear boundary of the subject land. In such a circumstance this may be taken into account in a subsequent annual valuation or the provisions of section 28(1)(g) of the Valuation of Land Act 1944 could be utilised to alter the valuation of the subject land. The prospect of such a wall being constructed is therefore, not a matter that I would take into account. Mr Moorton further suggested that the earthworks carried out were not necessary for the construction of a normal house on No. 60 and was of the view that, despite the higher elevation of the subject land to that of No. 60, the views of No. 60 were superior, not being interrupted as those of the subject land were, by buildings and trees on the opposite side of the road.
Number 60 Oceana Terrace is of elongated shape, as is the subject, however its short boundary faces Moreton Bay. A further point is that the basic property is an inside allotment, whilst the subject is on a corner. Mr Moorton said that he did not see that a corner block had any market advantage over an inside block given that traffic and pedestrian noise was accentuated on a corner. Mr Di Salvo, however, was of the view that in an unimproved state the subject corner influence and shape constitute a clear superiority over the basic property, whose shape was elongated towards the aspect of Moreton Bay.
One difficulty I have with using 60 Oceana Terrace as a basis in the subject appeal is that I am unaware as to whether the height of the illegal structure featured in any way in the determination of $162,500 by the Chief Executive. Section 3(4) of the Valuation of Land Act 1944 provides:-"Notwithstanding anything contained in this section, in determining the unimproved value of any land it shall be assumed
that -
(a)the land may be used, or may continued to be used, for any purpose for which it was being used, or for which it could be used, at the date to which the valuation relates; and
(b)such improvements may be continued or made on the land as may be required in order to enable the land to continue to be so used;
but nothing in this subsection prevents regard being had, in determining that value, to any other purpose for which the land may be used on the assumption that any improvements referred to in subsection (1) had not been made."
This provision would authorise the assessment of unimproved value for the purposes of the Valuation of Land Act to take into account the advantage afforded by the existence of the illegal structure. This is consistent with the decision of this Court in Marshall v. Chief Executive, Department of Lands (unreported 3 May 1995). Accordingly, I am unclear as to whether the comparison sought to be made between the subject land and 60 Oceana Terrace is made on the basis of the latter property having an unimproved value struck on the basis of the illegal structure or on some other basis. The evidence is also unclear as to how Mr Moorton has compared the views of each parcel of land - a point I mentioned above with respect to other basic properties put into evidence by Mr Moorton, though it does appear from the evidence that he compared them on an improved basis. Traffic volume on Oceana Terrace would affect the basis similarly to the subject.
A final significant point is that Mr Moorton's comparison between the subject and this basic property (and other basics referred to by him) suffers in that it lacks comprehensiveness and, in the discussion that I have set out above, Mr Di Salvo has alerted me to a number of matters that should feature in any comparison. Whilst Mr Moorton has, undoubtedly, put considerable effort into assembling a large amount of information to support his case, his evidence from a valuation perspective is inadequate. I realise that Mr Moorton is not a valuer and that undertaking a valuation in the absence of the expertise possessed by a member of that profession poses a considerable difficulty, however, it is not a difficulty that I can correct by stepping into the threshold. My task is to hear the evidence and to consider it as it falls and this is expressed clearly in the case of Qualischefski v. The Valuer-General (1979) 6 QLCR 167 at 172:-
"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 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 comparison with valuations made by the Valuer-General in respect of comparable properties."
Notwithstanding this, I would say that even if I resolved any evidential gaps in favour of the appellants, I could not conclude that the subject land is less valuable than No. 60 Oceana Terrace.
Mr Di Salvo tendered a written valuation and in oral evidence said that he was comfortable with the relativities that existed between the subject property and other applied values of the Chief Executive in the neighbourhood of the subject land. In his written valuation Mr Di Salvo included two sales as bases for the valuation of $170,000 on the subject land, these sales analysing to figures of $119,000 and $209,000 respectively. Mr Moorton did not have any detailed knowledge of these sales and did not attack the application of them in cross-examination.
In a matter of an appeal under the Valuation of Land Act 1944 I am not called upon to determine the value of the subject land unless the appellant has discharged the burden place upon him, by the statute, of proving the grounds of his appeal. In this case I find that the appellants have failed to discharge the burden of proving their grounds of appeal. Accordingly, the appeal is dismissed and the decision on unimproved value of the Chief Executive in the amount of $170,000 is affirmed.
RP SCOTT
MEMBER OF THE LAND COURT
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