Seibel (McLeod) v Department of Natural Resources and Water

[2007] QLC 31

LAND COURT OF QUEENSLAND

CITATION:	Seibel (McLeod) v Department of Natural Resources and Water [2007] QLC 0031
PARTIES:	Gwennyth Maude Seibel (McLeod) (appellant)
v.
Chief Executive, Department of Natural Resources and Water (respondent)
FILE NO:	AV2005/0512
DIVISION:	Land Court of Queensland
PROCEEDING:	Appeal against annual valuation under Valuation of Land Act 1944
DELIVERED ON:	20 April 2007
DELIVERED AT:	Brisbane
HEARD AT:	Gatton
MEMBER:	Mr PA Smith
ORDER:	The appeal is dismissed.
CATCHWORDS:	Valuation – Factors in valuation – valuer refused access to land – Impact of valuation on rates - Presumption in favour of correctness of valuation – Valuation of Land Act 1944
APPEARANCES:	Mr N McLeod on behalf of the appellant Mr W Isdale, Crown Law Officer, for the respondent

Background:

1. This is an appeal by the appellant against a valuation by the respondent, pursuant to the Valuation of Land Act 1944 (the VLA) which valued the appellant’s property situated at 15 Lockrose Road North, Lockrose in the sum of $180,000 as at 1 October 2004.  The appellant contends for a valuation of $75,000.

2. The land has power and telephone connected.  The area of the land is 32.85 hectares and is of regular rectangular shape.  Lowood is located 11.5 radially to the east, and the Lockrose State School is 1 km to the south.

3. The appellant was represented by Mr N McLeod, who gave evidence at the hearing.  Mr McLeod has no legal or valuation qualifications.  The respondent was represented by Mr W Isdale of the Crown Law Office, and relied on evidence of a registered valuer, Mr D Wall. 

4. On the evidence, there is some dispute as to the nature of the subject land relating to soil type.  Mr Wall, both in his report and in his evidence, refers to the property as comprising mostly good to medium black soil forest flats, while Mr McLeod refers to the soil as light alluvial creek bank soil.  Unfortunately, this inconsistency would appear to have arisen as a direct result of Mr Wall being denied access to the subject property for the purposes of compiling his report.  It is regrettable that the appellant saw fit to deny access to Mr Wall in this way.[1]  I note that Mr Wall relied upon previous file notes from other valuers in arriving as his definition of the soil type.  In my view, it would seem that the differences in description of the soil are definitional only and that the use of different terms has no impact on the overall valuation. 

   [1] See T pp 14-16.

5. Mr McLeod provided a hand drawn coloured (not to scale) map of the subject property and surrounding properties.  Such map was considered to be basically correct by Mr Wall.  I accept the nature and features of the property as set out in the hand drawn map, which is Exhibit 2. 

6. The property is located in an established farming district with operating agricultural farms surrounding it.  The property fronts Lockyer Creek to the west.  The property is designated "Rural Agricultural Land" under the Laidley Shire Council Planning Scheme. 

Relevant legislative provisions

1. Pursuant to s.13 of the VLA, the respondent is required to determine the unimproved value of the land.  Relevantly, s.3(1) of the VLA says as follows:

   "3.(1) For the purposes of this Act –

   'unimproved value' of land means –

   (a)     in relation to unimproved 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; and

   (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."

1. I note that the subject land in this matter is improved.  Accordingly, put simply, the task is to find the market value of the land on the assumption that none of the improvements are on the subject land.  An assessment is then undertaken as to the highest and best use of that land.

2. As the President said in Fairfax v Department of Natural Resources and Mines [2005] QLC 0011 at paragraphs [11] and [12]:

   "The principles for determination of the 'market value' of land were established by the High Court in Spencer v The Commonwealth (1907) 5 CLR 418. In that case, the High Court found that the value of land is determined by the price that a willing but not over-anxious buyer would pay to a willing but not over-anxious seller, both of whom are aware of all the circumstances which might affect the value of the land, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding facilities, the then present demand for land and the likelihood of a rise or fall in the value of the property. (See Griffith CJ at 432 and Isaacs J at 441).

   It has been well established that the unimproved value of land is ascertained by reference to prices that have been paid for similar parcels of land.  In Waterhouse v The Valuer-General (1927) 8 LGR (NSW) 137 at 139, Pike J said that:

   'Land in my opinion differs in no way from any other commodity.  It certainly is more difficult to ascertain the market value of it but – as with other commodities – the best way to ascertain the market value is by finding what lands comparable to the subject land were bringing in the market on the relevant date – and that is evidenced by sales'."

I respectfully agree with these observations.

Presumption of correctness of valuation

1. I now turn to section 33 of the VLA, which states as follows:

   33      Status of valuation

   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.

2. This section was considered by the High Court in the case of Brisbane City Council v The Valuer-General for the State of Queensland 1977-78 140 CLR 41 where Justice Gibbs (as he then was) made the following observation at page 56:

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

It should be noted that s. 33 of the VLA is in essentially the same terms as what was then s. 13(7) of the Act. 

The issues in the Appeal

1. Unfortunately, in her notice of appeal, the appellant has shown a fundamental misunderstanding of the provisions of the VLA.  A key aspect of her notice of appeal, set out in bold print on the notice of appeal, states that “the property is not suitable for housing development” and then goes on to set out a number of reasons in support of this statement.  As is clearly set out in the valuation report of Mr Wall, the unimproved value of the subject land has been assessed under the provisions of section 17 of the VLA as a single rural parcel, and that the existence of separate titles on the subject land has been disregarded.  Accordingly, much of the appellant’s notice of appeal is of no legal effect.

2. The remainder of the notice of appeal refers, chiefly, to various issues relating to water.  From the evidence, I have no doubt that the subject land has for many, many years been a productive agricultural property but that, in more recent times, water issues have become of paramount importance.  There is also little doubt that the subject land, and indeed the entire district, was as at 1 October 2004, and continues to be, severely affected by a major drought. 

3. I also accept Mr McLeod’s evidence that the construction of levee banks on the western side of Lockrose Creek, although not on his property, have had a negative impact on the property and that this has been a point of contention for the appellant since 1996.  Following the construction of the levee banks and a flood in 1996, the appellant has taken issue with the respondent regarding the unimproved valuation of the subject land on a number of occasions, resulting in reductions on objection in 1998 and in 2000, together with an objection won on appeal in 2000.[2]  On the point of the 2000 appeal, Mr Isdale informed the Court that he been unable to locate any decision on appeal.  I have subsequently had extensive searches undertaken of Land Court records and those searches have shown that there was no Land Court decision relating to the 2000 appeal, but rather there is an acceptance by the appellant of a reduction in unimproved value by the respondent pursuant to section 68(2) of the VLA from $90,000 to $81,000, which resulted in the 2000 appeal being struck from the list of cases awaiting determination by the Land Court.[3]  

   [2] See notice of appeal and T 21.

   [3] See letter Deputy Registrar, Land Court of Queensland, to appellant dated 30 November 2001.

4. For completeness, I note that the McLeods wrote to myself at the Land Court subsequent to the hearing and, amongst matters raised at the hearing, also indicated their stress in meeting the payment of rates.  Although the letter is not properly admissible as evidence in the hearing, by way of completeness, and to assist the appellant, I wish to make it clear that I have no doubt that Mr and Mrs McLeod, as a retired couple, passionately believe in everything that has been put in evidence before the Land Court; are concerned about the relatively steep increase in valuations that have occurred in recent years; and worry about the impact that their valuation has on them through their Council rates. 

5. However, it is not the role of this court to determine appeals such as this on any basis outside that of the VLA and decided precedents.  Specifically on the point of large increases in valuations and council rates increases, the Land Appeal Court had this to say in Tow v The Valuer-General[4] at page 381:

   "It follows that a large increase over and above the previous valuation is in itself not a relevant issue provided bona fide sales of comparable parcels support the new valuation.  The Valuer-General and the Court are concerned with finding unimproved value and not with the amount of rates that may be levied as a result."

   [4] 1978 5 QLCR 378

6. A direct comparison approach has been adopted by the respondent’s valuer to determine the unimproved value of the land.  As is so often the case in matters such as this, the issues basically all come down to market evidence.  This is reflected in the sales evidence set out in Mr Wall’s report.  Mr Wall’s evidence relates to three sales as follows:

Sales	Area	Date of Sale	Analysed U/Value	Applied U/Value 1/10/2004	Comparison
1 Forest Hill Fernvale Road LYNFORD	48.96ha	31/05/2004	$243,207 ($4,963/ha)	$222,500 ($4,544/ha)	Inferior rate per hectare, superior overall
2 Kammholtz Rd LOCKROSE	65.7614ha	31/01/2004	$370,850 ($5,639/ha)	$300,000 ($4,562/ha)	Inferior rate per hectare.  Superior overall
3 Qualischefski Rd GLENORE GROVE	17ha	05/11/2004	$179,893 ($10,582/ha)	$170,000 ($10,582/ha) Notional	Superior rate per hectare however the smaller land area makes the sale inferior overall

1. I accept the valuation evidence of Mr Wall.  Whilst points made by the appellant as to the particular disabilities of the property have merit, such disabilities have been taken into account by Mr Wall in his valuation.  Accordingly, on the basis of the evidence in its entirety, there is not sufficient evidence to disturb the presumption of correctness of the valuation.[5]

   [5] see paragraphs [7] and [8] above

2. Having considered all of the evidence before me, and applying the relevant authorities, I am not satisfied that the valuation of $180,000 involves a significant error of fact or was arrived at by a fundamentally flawed method. 

Conclusion

1. For the reasons set out above, I have reached the conclusion that the appellant has failed to establish that the respondent’s assessment of the unimproved value should be reduced to $75,000, or in any amount at all. It follows that the appeal must be dismissed. The valuation of the subject land is accordingly affirmed in the sum of $180,000.

Order

The appeal is dismissed.

P A SMITH

MEMBER OF THE LAND COURT