Sheppard v Chief Executive, Department of Lands
[1996] QLC 59
•17 May 1996
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BRISBANE
17 MAY 1996
In the matter of an appeal against a valuation.
Valuation Roll No.: 10175
Local Government: BCC-Enoggera (AV95-681)
Peter J and Barbara J Sheppard
v.
Chief Executive, Department of Lands
(Hearing at Brisbane)
D E C I S I O N
This decision relates to an appeal lodged under the provisions of the Valuation of Land Act 1944 in which the appellants contend for a valuation of the subject land as at 1 January 1995 of $57,750 against the Chief Executive’s determination of $63,000.
Mr Peter James Sheppard appeared for and gave evidence on behalf of his wife and himself. Mr Anthony James Whitelegg, a registered valuer employed by the Department of Natural Resources (which includes the former Department of Lands), tendered a written statement in support of the Chief Executive’s value of $63,000.
The subject land has an area of 597 m2 and is situated at 33 Bellata Street, The Gap. It is approximately 7 radial km west of the Brisbane General Post Office in a well-established suburban area. Bellata Street is a bitumen sealed two-way carriageway with concrete kerbing and channelling and an earth footpath. Access onto the property is good.
The land is rectangular in shape and has a moderate to steep natural slope, falling from an elevation of 72 metres AHD at the south-western boundary to approximately 66 metres AHD at the north-western corner of the site. This shows a drop in elevation of approximately 6 metres over 41.25 linear metres.
At the rear of the subject land is a large parcel of land referred to in evidence as 31A Bellata Street, which originally had an area of 2.32 ha. This property gains access to Bellata Street through a strip of land which adjoins the subject land along its south-western boundary. 31A Bellata Street has been subdivided into a group title subdivision, having six lots and an area of common property, comprising about a third of the original site. The access track to Bellata Street servicing the group title subdivision is constructed on part of this common property. The appellants tendered in evidence a number of letters comprising correspondence between them and representatives of the State Government and the Brisbane City Council revealing a long history of concern which the appellants hold regarding the development of the group title subdivision.
Mr Sheppard said that the appellants had previously objected successfully on three occasions against the value placed upon the subject land by the Chief Executive, the latest such successful objection being heard on 27 May 1991 where apparently matters concerning the group title subdivision were raised.
The entry track to 31A Bellata Street which adjoins the subject land is sealed and constructed with drainage and by itself poses no concern to the owners of the subject land. This track involves a cutting which has a “mason built” wall constructed along it, a photo of which was tendered in evidence. Mr Sheppard described this wall as being unattractive and therefore having a negative impact upon the value of the subject land and because of this, he is growing plants in a way that will shield the mason built wall from view.
In order to support the down slope batter bank created by the cutting of the entry track into the group title subdivision, a number of apparently randomly placed boulders were placed on the down batter to form what was described by Mr Sheppard as a boulder retaining wall. Photographs of the mason built wall and the boulder retaining wall were tendered by Mr Sheppard who said that the retaining wall was also unattractive and he was attempting to grow plants over it.
In addition to the unattractiveness of the mason built wall and the retaining wall, water run-off onto the subject land has been increased following the development of the group title subdivision, including the access track. The appellants have constructed a small nib concrete wall at the foot of the batter bank to redirect water along the boundary.
The next matter raised by Mr Sheppard was the presence of a pump house, having dimensions of about 1½ metres by 1½ metres by 2 metres, located about 4.3 metres from the front door of the house which is constructed on the subject land. The pump house contains two booster pumps to provide water to the highest point of the group title subdivision. Both pumps run continuously and, in Mr Whitelegg’s description, they emit a “low humming sound”. According to Mr Sheppard, had the pump house been located in accordance with a Brisbane City Council publication “Private Booster Installations for Allotments in Elevated Subdivisions” the pump house would not have been a nuisance to the subject land.
In his written statement Mr Whitelegg referred to periodical water run-off from neighbouring lands to the north and said that the situation had been made worse by the low intensity group title development on 31A Bellata Street. Mr Whitelegg also mentioned the earthworks affecting the subject property involving the mason built wall and boulder retaining wall and, as I have written earlier, also mentioned the pump house. Mr Whitelegg said in evidence that all of these matters were taken into account in arriving at the value placed on the subject land by the Chief Executive.
The appellants submitted that because they had succeeded in past objections that a precedent had been established which, as I understand the argument, I would be bound to follow. This is not a correct view of the law. Objections under the Valuation of Land Act are part of the administrative processes of the relevant Department and can have no influence on the decision making of this Court. Mr Sheppard further submitted that rather than the owners of the subject land having to object and possibly appeal to the Court on the occasion of future valuations that I ought to hold that in the event that there is an increase in valuations, only 50% of such increase ought to apply to the subject land. This is a request that I cannot satisfy. Each valuation must be treated separately, based on the evidence that prevails at the time and a decision of the type sought by Mr Sheppard would offend many provisions of the Valuation of Land Act, two of which I will now turn to.
Mr Glancy, for the Chief Executive, referred me to s.33 and s.45(4) of the Valuation of Land Act, each of which I now set out:
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.”
"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 ground shall be upon the owner."
In Mr Glancy’s submission it is largely agreed between the parties that the subject land is impacted upon by the various disabilities described by Mr Sheppard, however, there is nothing in Mr Sheppard’s evidence which points to a conclusion that these disabilities were not properly taken account of in the Chief Executive’s valuation nor that a different value ought to be struck having regard to them. Mr Glancy’s submission is supported by the High Court case of Brisbane City Council v. The Valuer General (1978) 5 QLCR 283 which decided quite clearly that the burden of proof in an appeal of this nature rests squarely with the appellant.
In my view the appellants have not demonstrated that the value placed on the subject land by the Chief Executive was based on a wrong principle, or that it failed to take into account relevant considerations. Accordingly, the appeal is dismissed and the valuation of the Chief Executive is affirmed.
RP SCOTT
MEMBER OF THE LAND COURT
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