O'Leary v Chief Executive, Department of Natural Resources

[2001] QLC 8

[2001] QLC 8

 

LAND COURT, BRISBANE

9 March 2001

Re:Appeal against Annual Valuation - Valuation of Land Act 1944 - Property ID: 1120401

Local Government: Brisbane City - Hamilton (AV00-95).

Daniel L O'Leary v.

Chief Executive, Department of Natural Resources

D E C I S I O N

Background:

This matter relates to land at 16 York Street, Hamilton, and described as Lot 2 on RP 55056, Parish of Toombul. The subject land has an area of 521 square metres, and is located on the northern side of York Street, about 70 metres east of Cooksley Street, which connects to Kingsford Smith Drive. York Street is bitumen sealed with concrete kerbing and channelling, and access to the subject land is directly off York Street. The subject land is above York Street, and rises towards the rear. There are views along York Street to the Albion Park Raceway.

All normal utility services are available. The subject land is zoned "Residential A" under the Town Plan of the Brisbane City Council, effective at the date of valuation of 1 October 1999. The key issues are comparison of sales, relativity, impact of traffic, and the nature of the land.

On 27 March 2000, the Chief Executive issued a valuation of the subject land at $130,000. Following an objection the Chief Executive confirmed that figure on 1 July 2000. The appellant has now appealed claiming the unimproved value should more properly be $125,000.

Daniel L O'Leary appeared and gave evidence on his own behalf. Mr D Jones, Senior Valuer, appeared for the respondent, calling evidence from James Thomas Houghton, the Departmental Registered Valuer responsible for determining the valuation.

The Evidence:

(1)The Nature of the Land -

Mr O'Leary advises that he assessed the unimproved value at $125,000, based upon a former assessment concluded by him at a previous objection in 1997. Mr O'Leary's major argument is that the disabilities of the subject land as a result of a major "crook" in York Street has not, in his opinion, been allowed for adequately in the current valuation at $130,000.

York Street was developed in two stages, extending from the subject land west to Cooksley Street, and separately east to Toorak Road. At the eastern boundary of the subject land the northern and southern alignments of York Street have been stepped where the two original surveys joined. The result of that step in the alignment is that proceeding along York Street from west to east, the boundary and the road carriageway deviate to the north, and then straighten until York Street joins Toorak Road. Mr O'Leary refers to that misalignment of the road boundary as a "crook" in the road.

It is Mr O'Leary's concern that parking of vehicles outside the subject land is very difficult, and his visitors tend to park on the footpath of the adjoining land to the east. Mr O'Leary also notes that traffic densities have increased during 2000, since traffic calming arrangements have been placed in the adjoining Cooksley Street, Queen Street and Toorak Roads.

Mr O'Leary notes that vehicles now tend to use York Street as a means of avoiding the new traffic arrangements, so that they can enter Kingsford Smith Drive via the traffic lights at its intersection with Cooksley Street. That is one of the few intersections along Kingsford Smith Drive where vehicles can turn right towards the City. However Mr O'Leary concedes that those traffic calming arrangements did not exist at the relevant date of valuation at 1 October 1999, and are more a matter for consideration at a subsequent valuation.

Mr Houghton advises that the concerns of Mr O'Leary in respect of misalignment of York Street were addressed at a previous objection conference with the appellant in 1997. Following that conference the previous valuation had been reduced by $6,000 from $104,000 to $98,000 on 9 September 1997. Mr Houghton provides a record of the valuation history of the subject land to confirm that change. Mr  Houghton  has  retained  that  former  relativity,  and  has  in  fact  increased  that

allowance further for the misalignment to $8,000, in order to allow any uncertainty in Mr O'Leary's favour.

The history of the valuation reveals that the unimproved value of the subject land had changed from $98,000 (1 October 1995), to $98,000 (1 October 1997),

$118,000 (1 October 1998), and $130,000 (1 October 1999). Mr O'Leary was not aware of any sales in the area, or of the general level of values in York Street, other than for the parcel immediately adjoining the subject land. Mr O'Leary also confirms that the bitumen surface of York Street is quite good, and his only concern is the misalignment and bend in York Street at the subject land.

Mr O'Leary also notes that the area is subject to bright lights from the Albion Park Raceway floodlights to the west of Cooksley Street. He has had to install blinds to his dwelling to overcome the glare, but admits that other buildings in York Street also suffer such problems, and those to the west of the subject land have a greater impact from the glare.

(2)        Comparison of Sales -

Mr O'Leary provides no evidence of sales to support his estimate of the unimproved value of the subject land.

Mr Houghton provides the following sales to support his valuation:

·    Sale 1 - (69 Cooksley Street - Lot 3 on RP59425)

This is a 549 square metre "Residential A" parcel located about 500 metres north of the subject land. The sale is moderately elevated with a slight crossfall, and with City glimpses to the south-west. The sale overlooks the Albion Park Raceway and is more directly impacted by glare from the floodlights. Services are similar to the subject land, but access to the sale is seen as inferior compared to the access to the subject land. The sale is considered overall superior due to its greater elevation. The sale sold in May 1998 for $178,000, which after allowing for improvements and land treatment by a bobcat excavator, was analysed at $172,800, and applied at $165,000.

·    Sale 2 - (40 Joynt Street - Lot 85 on RP33558)

This is a 455 square metre "Residential A" parcel located about 850 metres north of the subject land. The sale has a moderate fall below the road towards the rear, is similar in size, but is in a superior area. The sale is not impacted by the floodlight glare.  Access is seen as inferior due to the availability of access only in

Joynt Street from the west from Cooksley Street, as Joynt Street is a divided roadway. Overall Sale 2 is seen as superior because of the lesser traffic flows along Joynt Street.

The sale sold in July 1999 for $165,000, which after allowing for improvements was analysed at $162,000, and applied at $157,500.

·    Sale 3 - (42 Joynt Street - Lot 84 on RP33558)

This is a 455 square metre property adjoining Sale 2, with comparable attributes.   The sale sold in December 1998 for $165,000, which was analysed at

$162,000 and applied at $157,500.

Mr Houghton notes that Sales 2 and 3 were previously sold as a single parcel prior to the last valuation for $282,600. Based upon that figure he concludes a sale price of $141,300 for each of Lots 84 and 85 at that time.  The more recent sales at

$165,000 indicate a rise in the market of 15% during the intervening period. Mr Houghton argues those sales are in line with the general trend in Hamilton where sales overall reflected a rise of at least 10% in the market over the last year.

·    Sale 4 - (26 Allen Street - Lot 92 on RP33644)

This is a 407 square metre parcel zoned "Residential BR4" located about 3km east of the subject land, and one street removed from Kingsford Smith Drive. The sale is closer to amenities and shopping, and has good access to public transport. The location of the sale is similar, as both the sale and the subject land are impacted by parking and noise, although the subject land is also impacted by glare from the raceway. Overall the sale is seen as superior.

The sale sold in March 1999 for $160,000, which after allowing for improvements was analysed at $157,000, and applied at $140,000. Mr Houghton confirms that while the sale has a higher zoning, because of its small size it can only be used as a single residence site, and in fact a new dwelling has since been erected upon the sale.

(3)        Relativity -

To support his valuation Mr Houghton also supplies a relativity map which shows that the subject land, with an area of 521 square metres, has an unimproved value of $130,000; the adjoining lot to the east (Lot 1 on RP33495) has an area of 615 square metres and an unimproved value of $145,000; and the adjoining lot to the west

(Lot 1 on RP55056) has an area of 521 square metres and an unimproved value of

$138,000. The parcel opposite the subject land across York Street (Lot 3 on RP33493), also directly impacted by the boundary misalignment, has an area of 463 square metres and an unimproved value of $134,000. The parcel one lot removed to the east from the subject land (Lot 2 on RP33494) has an area of 481 square metres and an unimproved value of $134,000. On those figures I would agree with Mr Houghton that relativity of those parcels would appear fair and reasonable.

Decision:

(i)The Nature of the Land -

I note first that the general topography of the subject land is agreed between the parties; as is also the impact of the misalignment of the road boundary. There is some difference between Mr Houghton and Mr O'Leary as to whether access to the subject land might be less restrictive if vehicles were to enter York Street directly near the western alignment, rather than diagonally across the subject land towards the actual step in the road alignment. On an unimproved basis I believe Mr Houghton's assumption was likely to be correct, although such an approach would require modification to the existing front fence line.

In the matter of the glare from the Albion Park Raceway, I believe allowance has been made for that purpose. In respect of the impact of additional motor vehicles passing along York Street as a consequence of traffic calming in surrounding streets, I note that such traffic alterations are matters that occurred after the relevant valuation date of 1 October 1999. They are therefore matters for consideration at the next valuation at 1 October 2000.

(ii)        Comparison of Sales -

In seeking comparisons with sales of vacant or lightly improved lands, Mr Houghton has followed guidance long preferred by the courts. That was clarified by the Land Appeal Court in WM and TJ Fischer v. The Valuer-General (1983) 9 QLCR 44, where the Land Appeal Court said at page 46:

"It is indeed a fundamental principle of valuation that the best basis for assessment of unimproved value is the use of sales of vacant or lightly improved parcels. Whilst maintenance of correct relativity is also of considerable  importance  for  rating  or  revenue  type  valuations,  we

cannot prefer in the circumstances of this case, the use of the principle of relativity to the exclusion of the sales evidence."

That principle was also followed in PH Clough v. Valuer-General (1981-82) 8 QLCR 70, at 76; and also in R and MM Barnwell v. Valuer-General (1990-91) 13 QLCR 13, at 17.

Sale	Analysed Unimproved Value	Comparison
1	$172,800 (95% applied)	Superior
2	$162,000 (97% applied)	Superior
3	$162,000 (97% applied)	Superior
4	$157,000 (89% applied)	Superior

 

On the evidence provided I find that Mr Houghton has concluded the following comparisons:

On those figures there is nothing to discredit Mr Houghton's comparison; and an unimproved value of $130,000 for the subject land would seem reasonable.

If I then check that unimproved value with the unimproved values of the surrounding lands, I find that the subject land has indeed been afforded a discount of

$8,000 to reflect its particular disabilities. While Mr Houghton advises that the current unimproved value has at least retained the former relativity agreed with the appellant in 1997, Mr O'Leary seeks assurance that an appropriate deduction in the valuation has been applied. In my opinion the evidence supports Mr Houghton's determination at $130,000.

Summary:

In seeking guidance in this matter I note that s.33 of the Valuation of Land Act 1944 directs as follows:

"33. Each 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 also note that the Act places responsibility to prove the grounds of appeal upon the appellant under s.45(4). Guidance from the High Court in respect of the need for an appellant to demonstrate that the Chief Executive has made an error is to be found in Brisbane City Council v. The Valuer-General (1977-78) 140 CLR 51, where Gibbs J said at page 56:

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

(Section 13(7) is now s.33 of the current Act).

Unless an error is found to have occurred then the appeal must fail. There is no evidence that the Chief Executive has misdirected himself in this matter.

Conclusion:

Having considered the whole of the evidence I am not persuaded that the appellant has proved his case. The appeal is dismissed, and the unimproved value of the subject land as determined by the Chief Executive in the sum of $130,000 is affirmed.

(NG Divett)

Member of the Land Court