Seeview Pty Ltd v Chief Executive, Department of Lands
[1996] QLC 62
•17 May 1996
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BRISBANE
17 MAY 1996
In the matter of an appeal against a valuation.
Valuation Roll No.: 5186/72200
Local Government: Caloundra (AV95-225)
Seeview Pty Ltd
v.
Chief Executive, Department of Lands
D E C I S I O N
This matter arises under the Valuation of Land Act 1944 and involves an appeal by the landholder company against the unimproved value of $91,000 placed on the subject land by the Chief Executive as at 1 January, 1995. The appellant contends for a value of $67,000.
Mr Colin Gordon Franks, a director of the appellant company, appeared for and gave evidence on behalf of the appellant, whilst the Chief Executive's valuation was supported by a registered valuer, Andrew Grams, employed by the Department of Natural Resources (which includes the previous Department of Lands).
The subject land comprises a residential block of 673 m2 located at No. 5 Anderson Street, Dicky Beach, City of Caloundra. Anderson Street is a bitumen sealed road with concrete kerbing and channelling, providing good access to the land. The property is an irregular shaped allotment, has a gentle fall to the rear, is elevated and has, in Mr Grams'
language, "restricted sea views". It is the matter of these views and the impact of this feature on the value of the subject land which was the main issue between the parties.
It is useful at this stage to make reference to some matters of general principle and law which guide certain important aspects of my considerations. Section 45(4) of the Valuation of Land Act provides with respect to a notice of appeal:"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." (emphasis added)
Section 3(1)(b) of the Valuation of Land Act provides a definition of "unimproved value" which is applicable in the subject case:
"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."
The manner in which improvements are treated on a piece of land to be valued for the purposes of the then New South Wales legislation which included provisions similar to s.3(1)(b) mentioned above is described in Tooheys Ltd v. Valuer-General (1925) AC439. At page 443 of this case the Privy Council said:
"Now, what he (that is, the valuer) has to consider is what the land would fetch as at the date of the valuation if the improvements made had not been made. Words could scarcely be clearer to show that the improvements were to be left entirely out of view. They are to be taken, not only as non-existent, but as if they never had existed.
Having stated these principles, it is now a matter of applying them to the evidence presented to me.
In a statement tendered to the Court, Mr Franks wrote:
"Prior to the valuation date, a new home was built directly behind my property. It was built right back onto the rear boundary of my property & is of 2 story construction with a pitched tile roof - effectively 3 story (sic) in height. As enclosed photos show this home completely blocks any ocean view & N/E view from my property ..."
The house referred to by Mr Franks is on Lot 250, has a split roof line, the western part of which is low and the eastern part is high.
Mr Franks said in evidence that from the patio of the highset house constructed on the subject land one can see views to the west to Kawana; then in a northerly direction the roof line of the house constructed on the land at the rear (Lot 250) and then a 5 metre gap between the house on Lot 250 and an adjoining house, revealed views of the ocean. He described this as a "lovely view" but not as good as the lot next door, that is 7 Anderson Street.
The photographs tendered by Mr Franks were of limited assistance to me as they appeared to not be taken from the most advantageous positions from which views from the subject land might be evaluated. Mr Grams tendered some photographs which were of greater assistance to me as they provided a sense of perspective to the position of the subject land. Mr Grams' photographs and his oral evidence lead me to conclude that it would be possible to construct a house on the subject land which would take better advantage of the site than the house currently constructed there does. Views to the north would be enhanced by such a new structure which would be situated closer to the western boundary than is the current house, however, views to the north-east would still be interrupted by the high roof portion of the house constructed on Lot 250. I do not accept Mr Franks' evidence that it would be necessary to construct a house to three storeys in height (a height which would not be approved by the local authority) to take advantage of the available views.
Deciding the question of views in this manner does not, however, dispose of the appeal. The real question is how the sales evidence is applied to arrive at a value of the subject land. Both Mr Franks and Mr Grams referred to the sale of the property adjoining the subject, that is 7 Anderson Street, Dicky Beach, which sold at a price of $110,000 in August 1994 which Mr Grams analysed to an unimproved value of $108,000 and applied to $95,000. Mr Grams saw the subject as being inferior to the sale, being slightly smaller in area though having a longer frontage, similar in aspect and elevation, but with the sale being superior in terms of view. This sale block, which I will refer to as Sale 1, has unrestricted ocean and north-easterly views there being a lowset house constructed on the block to its rear and the house constructed on the sale block has been positioned to take advantage of the available views. Mr Franks is of the opinion that the price paid for this parcel of land was too high, being purchased by an over-zealous person and that the price may have been influenced by the fact that the land was the last vacant block in the street to be sold. Mr Franks generally agreed with the comparison made between this sale block and the subject land, excepting that he thought the sale block to have a more preferable shape and that some allowance should be made for its larger size, the sale having an area of 710 m2 compared with the subject's 673 m2.
I will defer for the moment consideration of the comparison between Sale 1 and the subject to deal with Mr Franks' suggestion that the sale is too high. In support of his opinion, Mr Franks referred to a sale at Lot 274 Enfield Crescent, which had sold for about $60,000 presumably at a time not far removed from the relevant date. In Mr Franks' view Sale 1 would have a value of about $25,000 more than his Enfield Crescent sale because of the views available to Sale 1, therefore a sale price of $85,000 would, he argues, be appropriate. Mr Grams gave evidence that Enfield Crescent was subject to noise from a nearby intersection which had no impact on Anderson Street properties and had a southerly aspect which compared unfavourably with the northerly aspect in Anderson Street. In support of his Sale 1 Mr Grams referred to a Sale 2 which is located in Russell Street, Shelly Beach, comprising an area of 668 m2 and having an applied value of $92,000. Sale 2 has no views to speak of, is superior in location to the subject, being nearer to the beach and to other facilities, and is in an area developed with older style homes than those located in Anderson Street. In Mr Grams' view Sale 2 supports the level of value indicated by his Sale 1. Mr Franks was not aware of the Sale 2 property, however, did agree in cross-examination that the superior location of the Shelly Beach area in which the sale is located would be offset by the older homes and lack of views on the sale block, and on this basis the Shelly Beach sale may be of some use in considering values in Anderson Street. I accept on the evidence that Mr Grams' Sale No. 1 adjoining the subject is not an above-market sale and is a suitable basis for comparison with the subject. I also accept Mr Grams' comparison between Sale 1 and the subject as supporting the Chief Executive's applied value of $91,000 on the subject land and I agree that this value is supported by comparison with the Shelly Beach sale.
Mr Grams referred also to a sale in Enfield Crescent, having an applied value of $60,000 and this sale, together with the comparison between the Enfield Crescent area and Anderson Street mentioned above, indicate to me that the figure of $67,000 which Mr Franks suggests should be placed on the subject land is clearly wrong.
In the result, the appeal is dismissed and the valuation placed on the subject land by the Chief Executive is affirmed.
RP SCOTT
MEMBER OF THE LAND COURT
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