Neville v Chief Executive, Department of Natural Resources and Mines
[2001] QLC 96
•21 September 2001
LAND COURT BRISBANE
[2001] QLC 96
21 SEPTEMBER 2001
Re:Appeal against Annual Valuation Valuation of Land Act 1944 Property ID: 9076432
Local Government: Brisbane-Wynnum (AV00-445)
Barbara and Kenneth R Neville v.
Chief Executive, Department of Natural Resources and Mines
J U D G M E N T
Background:
This matter relates to land at 419 The Esplanade, Manly, and described as Lot 328 on RP 33018, Parish of Tingalpa. The subject land is located on the waterfront at Manly, about 16 km radially east of the Brisbane GPO, and has an area of 503 m². The suburb of Manly is seen as a prestige neighbourhood with many luxury homes, particularly on the steeper hills above Manly Harbour, and also along the waterfront where excellent views of Moreton Bay are highly prized in the marketplace. The subject land is zoned "Residential B" under the Town Plan of 13 June 1987 of the Brisbane City Council, effective at the date of valuation of 1 October 1999. The key issues are the nature of the land, comparison of sales, planning impact, and impact upon privacy.
The Esplanade is a bitumen sealed road with concrete kerbing and channelling, and acts as a collector road for local and visitor traffic along the waterfront. All normal utility services are available, and schools, local shops, a supermarket, restaurants and professional offices are about 250 metres away in Cambridge Parade, Manly. The subject land is used as a single dwelling house, and has been valued under s.17(1) for that purpose.
On 27 March 2000 the Chief Executive issued a valuation of the subject land at $152,500. Following objections the respondent confirmed that figure on 1 July 2000. The appellants have now appealed claiming the unimproved value should more properly be $135,000.
Kenneth Richard Neville appeared and gave evidence for the appellants, also calling evidence from Barbara Neville. Ms R Trigge, Senior Legal Officer, appeared
for the respondent, calling evidence from Mark Everett William Denman, the departmental registered valuer responsible for determining the valuation.
The Evidence:
(1)The Nature of the Land -
The subject land is a narrow rectangular shaped level lot, at road level, with unimpeded views across parklands towards Moreton Bay to the north-east. There is good access to the site, and the arc of views of Moreton Bay are agreed to be of the order of about 70 degrees, generally extending from Darling Point to the north to the Moreton Bay Boat Club site immediately east of the subject land. The existing dwelling on the parcel to the north of the subject land (417 The Esplanade) limits views in a northerly direction. Views to the south-east are restricted by buildings on the Moreton Bay Trailer Boat Club and the 18-foot Skiff Club, as well as other developments immediately to the south of the subject land. There is no dispute between the parties in respect of the nature of the land.
(2) The Impact of Planning Controls -
The major concern of the appellants is that privacy upon the subject land has been impacted by, in their opinion, a failure by the Brisbane City Council (the Council) to adequately ensure that building requirements were complied with. Mr Neville argues that a balcony at the north-eastern corner of the new dwelling on the adjoining parcel (421 The Esplanade), in his opinion, does not satisfy the requirements of the town plan, thus allowing for infringement of the appellants' privacy. The adjoining owners are now capable of being able to see directly into the appellants' living room at the front of their dwelling.
Mrs Neville provides an example where that has occurred, and the appellants feel insecure as their personal privacy is being breached. There is no animosity with the neighbours over this issue, but the appellants argue that the value of the subject land would be disadvantaged in the eyes of a prospective purchaser, and for that reason, the unimproved value of the land must therefore be diminished.
To support his argument Mr Neville draws attention to the Town Plan, and in particular to Planning Policies 7.29 and 7.31. Mr Neville also notes the Council's latest stated intentions in its City Report 2001 document, which further emphasises the need for privacy, safety and green spaces in residential areas. Mr Neville argues that with such public statements by the Council for the need to ensure that privacy is protected, the present nature of the open terrace on the adjoining 421 The Esplanade,
would be seen by any prospective owner of the subject land as an infringement not evident in other parcels in the area.
Mr Neville in particular notes that the amendment of the Town Plan of 1 March 1999 in respect of defining privacy issues, directs that direct overlooking between buildings is to be minimised by building layout, location and design of windows and balconies, screening devices and landscaping. (Page 9(xix)). The solutions relatively proposed by the Town Plan relate to houses up to 9 metres above ground level.
Mr Neville provided a sketch plan (Exhibit 2 Attachment 1) which shows the balcony on 421 The Esplanade at about 3 metres from the front balcony of the subject land at first-floor level. The side of that balcony adjoining the subject land has no screening to prevent direct over viewing. The balcony on the subject land is set back at 12 metres from the front alignment of The Esplanade, while the new balcony on 421 The Esplanade has been constructed at the minimum setback of 6 metres from the front alignment. For this reason direct over viewing is possible by looking backwards towards the subject building.
It is agreed by both parties that whether the building on 421 The Esplanade has been constructed in contravention of the Town Plan, is not a matter for consideration in this matter. That would be a matter for consideration in another place, should the appellants seek relief for that purpose. It is noted that the appellant did not exercise that right during the construction of the adjoining building. It is also noted that the appellants have not raised the issue with the neighbours as they have no wish to endanger the good existing relationships with those people.
However both parties agree that direct over viewing is currently possible with the existing location of the two adjoining buildings, and the privacy of both parcels are effectively impacted. While the decision to not construct an appropriate screen on the side of the balcony on 421 The Esplanade was an option taken by that owner, the consequence of that decision is that the appellants are now virtually faced with having to protect their personal privacy in their front living room.
In support of his argument that the appellants' rights to privacy under the Town Plan have now been diminished, Mr Neville notes specifically that Planning Policy 7.31 states directly in respect of the requirements specified for building, that:
(i)Dimensions of balconies are to have a maximum depth of 2.5 metres generally, or up to 3 metres where design measures as specified are incorporated to ameliorate the amenity effects which are likely to arise through the greater utility of the space.
(ii)To avoid adverse amenity effects from balconies upon neighbouring properties one or more of the following measures should be adopted:
·situate the front of the balcony at sufficient distance from the side and rear boundaries;
·use fixed screens to screen the balcony from the side boundary and possibly rear boundary if applicable;
·orient balconies away from private spaces on adjoining sites;
·recess part of the balcony into the main structure of the building.
Mr Neville's sketch plans demonstrates that the balcony on 421 The Esplanade, while being set partly into the north-eastern corner of the new dwelling, actually has a width of 4.0 metres and a depth of 4.5 metres. Mr Neville argues that greater outdoor living area greatly extends the use of the balcony for dining and entertainment, further increasing the level of potential intrusion into the subject land. There were no side screens provided in order to maximise the most favourable climate aspect and view from 421 The Esplanade, towards Darling Point. While not conceding that the balcony on 421 The Esplanade may be in breach of the Town Plan, Mr Denman agrees that direct over viewing into the subject dwelling is possible.
However Mr Denman argues that because the subject dwelling has been set back 12 metres from the road alignment, rather than only for 6 metres as for 421 The Esplanade, then the spirit of the town plan has been followed by only requiring screening on windows where direct viewing between immediately adjacent window areas are involved. That has occurred on other side windows between the dwelling.
Mr Neville notes that the Council has progressively modified its response to the appellants in respect of the need for screening. In its letter to the appellants of 4 September 2000 the Council advised that "no direct view is available from the balcony into habitable rooms. However in its letter of 26 April 2001 the Council reports that "the visual intrusion of the development would have a minimal impact on your amenity".
While the legal interpretation of those statements is really a matter for consideration in another place, the impact is that the opinion of the Council in respect of the existence of some overlooking directly between the existing dwellings supports the current understanding of both Mr Neville and Mr Denman. The issue for consideration then in the current matter is how much does that intrusion impact upon the unimproved value of the land?
The appellants would have no problem with the unimproved value determined by Mr Denman at $155,000, had there been no loss of privacy as outlined above. In arriving at his estimate of the unimproved value at $135,000 Mr Neville concedes that figure was based only upon his personal opinion, and there was no comparisons available with similarly affected properties.
In explaining how he has made an allowance for the impact of the intrusion upon privacy, Mr Denman notes that the current relativity between the unimproved values of 421 The Esplanade ($160,000), and the subject land ($152,500), reflects two issues. Firstly there was an allowance of about $2,500 for some loss of privacy on the subject land, and secondly there was some additional benefit to 421 The Esplanade because of the additional setback to the current dwelling on the subject land. The difference in the unimproved values of $7,500 reflects the resulting impact of those two factors, and are not separate components for each. Mr Denman argues that had the balcony on 421 The Esplanade been constructed with screening, then he feels that the subject land would have a conservative unimproved value of $155,000.
The appellants agree that if the subject land was a vacant site, then the preferred location for a new dwelling would be at 6 metres setback, parallel to 421 The Esplanade. They also agree that a balcony similar to 421 The Esplanade was likely to maximise the Moreton Bay views from such a new dwelling. However Mr Neville argues that the Council was then also likely to demand screening along that new balcony on the subject land, in order to preserve the privacy of the adjoining neighbour at 417 The Esplanade. To support that view he notes the screening on both adjoining dwellings evident on Mr Denman's Sale 2, also agreed by Mr Denman.
Mr Denman further advises that had the subject land been vacant, and 421 The Esplanade thus not been afforded some further advantage by the additional setback of the current subject dwelling, then the relative unimproved values of both 421 The Esplanade and the subject land would have been equal at $155,000.
(3) Comparison of Sales -
Mr Neville does not challenge Mr Denman's sales, or his method of comparing sales of vacant lands. As noted, without the problem of the intrusion to privacy, both parties agree that the unimproved value would be approximately $155,000.
To support his valuation Mr Denman relies upon the representative sales of vacant lands. Because the sales evidence is not an issue I will only briefly consider those sales. The key Sale 1 is of the adjoining property at 421 The Esplanade which is comparable in all features except the slightly better views available to Sale 1 as
discussed. Sale 1 sold in March 1999 for $162,000, was analysed at $160,600, and applied at $160,000 (100%).
Mr Denman also seeks support with his Sale 2 at 195 Wynnum Esplanade, Wynnum, of area 403 m², and which sold in December 1998 for $185,000, was analysed at $183,100, and applied at $170,000 (93%). While Sale 2 is in a slightly inferior locality, it does have wider views of Moreton Bay. That sale further demonstrates that a new dwelling subsequently erected upon that site included a similar balcony as at 421 The Esplanade, but with side screenings which have been required to protect the privacy between the adjoining buildings.
A third Sale 3 at 93 Boswell Terrace, Manly, was provided merely to indicate the level of value paid for similar lots without views of Moreton Bay. Sale 3 has an area of 405 m² and sold in January 1999 for $148,000, was analysed at $147,200, and applied at $134,000 (91%). I would agree that the above sales support Mr Denman's conclusions in respect of an overall general value of $155,000, ignoring the privacy factor. I also note Mr Denman's advice that the market for waterfront lands in Manly had increased over recent years, but there had been no increase in the relevant period for the current valuation. Mr Denman has maintained the old relativities along The Esplanade.
Decision:
(i)The Method of Valuation -
The method of comparing sales of vacant lands has long been preferred by the courts when determining unimproved values. That was perhaps most clearly explained by the Land Appeal Court in P.H. Clough v. Valuer-General (1981-82) 8 QLCR 70, where the Land Appeal Court said at p.76:
"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. The reason is obvious. In applying such sales there is no room for error in analysing the value of improvements.
Because there is less room for difference of opinion as to value of the various items of improvement and comparison is thus simpler, it has been held that highly improved sales should be avoided in preference to sales comprising a lesser degree of improvement."
However in exploring the evidence before me I am also reminded that it is not the role of this Court to be an investigating tribunal. That was directed by the Land
Appeal Court in G Franklin & Ors v. The Valuer-General (1978) 5 QLCR 181, where it noted at p.185:
"At the same time, as the Act is presently drawn, the Court is not an investigating tribunal and we do not see how it could uphold or dismiss an appeal on grounds other than those specified in the appellants' notice of appeal."
A similar direction was also followed in JL and I Qualischefski and Others v. The Valuer-General (1979) 6 QLCR 167, where the Land Appeal Court said at p.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."
The Land Appeal Court further reinforced that principle in B.T. Dillon v. Valuer-General (1986-87) 11 QLCR 231, where it said at p.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 prove the fairness or correctness of the Valuer-General’s values and by this means arrive at its own estimate of value."
The thrust of those directions highlights the onus of proof enshrined in the legislation where, when referring to a notice of appeal in respect of an annual valuation, s.45(4) of the Valuation of Land Act 1944 states:
"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 grounds shall be upon the owner."
(ii) The Impact upon Privacy -
While it is agreed by both parties that there is some direct oversighting of the subject dwelling and that some intrusion into privacy has occurred, it may assist to review the significance of that intrusion. That is not to say that this Court will consider whether or not the adjoining dwelling on 421 The Esplanade has been constructed within the law, but rather just to understand the further implications of the building as it now exists.
The intentions of Planning Policies 7.29 and 7.31 are to ensure appropriate development of smaller detached houses upon lots generally in the "Residential A" or "Residential B" zoning. Accordingly, those policies have direct relevance to the construction of the new dwelling upon 421 The Esplanade. Section 4.4 of Policy 7.29 deals specifically with privacy issues, and directs that direct over looking between buildings is to be minimised by a series of possible solutions, one of which is appropriate screening. The wording of the solutions outlined is directive and not discretionary, noting particularly in s.4.4(ii).
If I consider Planning Policy 7.31 which was amended on 3 April 1998, I note that there is particular relevance to the date of valuation at 1 October 1999, and it sets out in detail the "treatment of balconies" in order to avoid adverse amenity effects, and specifies measures which should be applied.
The use of the word "should" in that context denotes the giving of permission or direction, and has the general sense of being directionary upon building approval. The end result of the current approval by the Council for the adjoining balcony on 421 The Esplanade not to require screenings, is that those owners now have an as of right situation to continue using that balcony without further alteration. Should any future owner of the subject land seek to construct a new building forward to the 6 metres building setback, then it would be a requirement upon the owner of the subject land to protect future privacy towards 421 The Esplanade.
Now any new building so constructed, if it parallels the design of 421 The Esplanade, may overcome the privacy issue with 421 The Esplanade by having full walls at that location. However, it would appear inevitable that if an open balcony was proposed on the north-eastern corner, then special screening towards 417 The Esplanade would be required. Generally speaking the parties agree that a north- eastern balcony would be preferred, and in my opinion that was likely to be a high priority in any new building, considering the quality of Moreton Bay views from that direction.
If I then consider the current relativity between 421 The Esplanade and the subject land, I note that Mr Denman has allowed a differential of $7,500 to reflect the interim better views from 421 The Esplanade, and the loss of privacy on the subject land. It is agreed that if both parcels were vacant lands then they would both have an unimproved value of $155,000. While Mr Denman has not specifically identified the components of that differential, it would be assumed approximately as $5,000 for the
extra views from 421 The Esplanade, and $2,500 for the loss of privacy at the subject land.
Now in seeking to understand why those two aspects would be quantified in that manner, it is worth remembering why people pay high prices for waterfront lands. The premium attaching to those lands is the views of Moreton Bay, as demonstrated by Sale 3 at 93 Boswell Terrace. On that basis I see no reason not to accept Mr Denman's conception of the differential between the parcels.
Summary
In summarising this matter I am reminded that s.33 of the Act directs:
"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."
I am also reminded that in respect of a notice of appeal to this Court the onus is upon the appellants to prove their grounds of appeal under s.45(4).
On the evidence before me the appellants have not satisfied that responsibility. I am also directed that unless the appellants prove that the Chief Executive has used a wrong principle or made a serious error of fact in determining his valuation, then the grounds of appeal must fail. (Brisbane City Council v. The Valuer-General (1978) 140 CLR 41, at p.56 per Gibbs J). However, while the appellants have the burden of proof of their grounds of appeal, they do not have the burden of proving that the amount which in their opinion should be the valuation is correct. The Court on the evidence may determine the amount which it feels is appropriate. (Brisbane City Council v. The Valuer General (supra) at p.57).
On the evidence I believe that the respondent has allowed for the impact of the intrusion upon privacy on the subject land in Mr Denman's relativity with Sale 1.
Conclusion
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 328 on RP 33018 as determined by the Chief Executive in the sum of One Hundred and Fifty-two Thousand Five Hundred Dollars ($152,500) is affirmed.
NG DIVETT MEMBER OF THE LAND COURT
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