Stay v Chief Executive, Department of Natural Resources
[2000] QLC 66
•3 November 2000
|
BRISBANE
3 November 2000
Re: Appeal against Annual Valuation -
Valuation of Land Act 1944 -
Valuation Roll No: 3101 -
Local Government: Brisbane City - Enoggera.
(AV99-392)
RL and DW Stay
v.
Chief Executive, Department of Natural Resources
D E C I S I O N
Background:
This matter relates to land at 72 McGinn Road, Ferny Grove, and described as Lot 3 on RP81533, Parish of Enoggera. The subject land has an area of 1.017ha and is located about 12km radially north-west of the Brisbane GPO, about 900 metres south-west of the Ferny Grove Railway Station, and about 2.5km south-east of the Brisbane Forest Park. The subject land is also located in the immediate vicinity of primary and high schools, and near to local shops on McGinn Road. All services are available, and the land is zoned "Future Urban" under the Town Planning Scheme for Brisbane of 13 June 1987, effective at the date of valuation of 1 October 1998. The key issues are comparison of sales, relativity, the impact of flooding, and the method of valuation.
On 8 March 1999 the Chief Executive issued a valuation of the subject land at $136,000. Following an objection the Chief Executive confirmed that figure on 16 June 1999. The appellants have now appealed claiming the unimproved value should more properly be $80,000.
Douglas Wesley Stay appeared and gave evidence for the appellants. Mr K Fisher, counsel of Crown Law, appeared for the respondent, calling evidence from Edward Antoni, the Departmental registered valuer responsible for determining the valuation.
The Evidence:
(1) The Nature of the Land -
The subject land has a frontage to McGinn Road of approximately 47 metres, and is generally regular in shape, although the parcel is irregular at the rear. The land rises gently from McGinn Road to a near level building area for about 30 metres, and then falls overall about 9 metres towards the rear. Mr Stay argues that the fall is more steeply for about 7 metres in height from the housesite, and then flattens out to a lesser fall of 2 metres across much of the rear of the subject land. It is Mr Stay's argument that as the Q100 year flood level has been determined at RL62.5 in that area, much of the subject land (about 60%) is therefore subject to flooding at Q100 occurrence.
Access is good to McGinn Road which is bitumen sealed, and there was an earth footpath and channel at the date of valuation. A concrete footpath and concrete lined drain have subsequently been extended to outside the subject land. Sarah Crescent abuts the eastern boundary of the subject land, however legal access to Sarah Crescent is restricted by an access restriction strip (Lot 14 on RP 853477). The land is improved with two residences, following relaxation by the Brisbane City Council (the Council) under section 7.6.16(b)(ii) of the Town Plan. The subject land is in a pocket of larger rural residential parcels, most of which have some impact by flooding. Areas to the north, west and south of that small pocket of lands have all been developed to standard smaller building sites generally up to 800 square metres in area. There are areas of Vegetation Preservation Orders (VPOs) across most of the rural residential lands, and the subject land is about 70% covered by a VPO, including all of the higher building areas.
However Mr Stay concedes that the impact of the VPO is not really affecting the use of the land, and the VPO is directed to generally protecting trees in those areas, while allowing grazing. An application to Council for permission to subdivide the subject land, together with the adjoining parcel (Lot 7 on RP 82359), was refused because of a lack of a legal point of discharge for stormwater.
Mr Antoni agrees that the VPO is not a matter affecting the valuation as a single housesite under s.17 of the Act. Mr Antoni notes that clearing around houses, and even for the erection of a second house within the VPO, has been approved by Council. He further comments that a VPO may even become an enhancement for privacy reasons on rural homesites. However he has ignored the VPO in the current valuation, noting that matter was addressed when this property last came before this Court (see AV95-510, 6 November 1996, unreported).
Relativity -
Mr Stay argues that as there were no comparable sales in the vicinity of the subject land, then relativity with surrounding parcels is the better method of determining the correct unimproved value. Mr Stay seeks relativity with the following parcels, each of which is used for rural residential purposes:· Parcel 1 - (76 McGinn Road, Ferny Grove - Lot 2 on RP81533)
This is a 1.012ha regular shaped parcel adjoining the subject land to the west. Parcel 1 has a slightly narrower frontage to McGinn Road, but Mr Stay argues it is totally above the Q100 flood level, whereas 40% of the subject land is below Q100. It has a larger plateau area upon which to build, and has less problems with the road intersection opposite the subject land to the north across McGinn Road. Parcel 1 has an unimproved value of $136,000 ($13.44 per square metre).
· Parcel 2 - (17 Hogarth Road - Lot 2 on RP 93089)
This is a 1.005ha parcel adjoining the subject land to the east. Mr Stay argues that parcel is virtually 0.6 metres above Q100 flood level as a result of filling. While it is an irregular shape, negotiations were recently undertaken for possible use by a church, which saw no appreciable loss of use as a result of the triangular shape. The parcel has a much larger frontage to Hogarth Road, and has an unimproved value of $94,000 ($9.35 per square metre).
· Parcel 3 - (51 Hogarth Road - Lot 7 on RP82359)
This is a 1.937ha parcel adjoining the subject land to the south. The parcel is virtually above Q100 flood level, and has two houses erected, although both are vacant because of problems connecting sewerage to the dwellings. Mr Stay argues that the parcel has an irregular shape, and a frontage comparable to the subject land. The parcel has an unimproved value of $110,000 ($5.78 per square metre).
Mr Stay also seeks comparisons with other parcels in Hogarth Road:
ParcelLot Area Unimproved
(ha)Value
4McGinn & Hogarth Road 2.428 $112,000
(Lot 2 on RP46166) ($4.61/m²)
5Hogarth Road 2.610 $115,000
(Lot 3 on RP46166) ($4.42/m²)
6Hogarth Road 2.784 $122,000
(Lot 4 on RP46166) ($4.38/m²)
Mr Stay advises that Parcels 4 to 6 are all impacted by the Q100 flood from Kedron Brook, the floodway of which crosses each lot. Mr Stay draws some comparisons with the wider frontage of Parcels 4 to 6, each of which he argues could provide up to six house lots fronting Hogarth Road. Mr Stay argues that, because a large part of the subject land is low and subject to Q100 flooding, it is more appropriate to compare it with the lower lands, rather than with the higher lands to the west along McGinn Road.
In support of his estimate of the unimproved value Mr Stay also argues that sales of rural homesites have become less attractive over recent years, as a consequence of the general community move towards inner city living. He argues that sales of rural homesites in the Samford area have declined, while riverfront lands and inner suburbs have increased in popularity.
Mr Antoni does not disagree that there has been a trend towards inner city living, but argues that there remains a solid market segment which prefers rural style lots. Mr Antoni argues that where such rural homesites have reasonable close proximity to transport, such as the Ferny Grove Railway Station, then, in his opinion there continues to be a good market for those larger lots. Mr Antoni refers to a recent area in Lanita Road, to the north of the subject land, where prices paid for rural homesites with VPO protection have realised very good values.
Mr Stay argues that the use of the subject rural homesite differs as a house site from the conventional 800 metre lot, only in as much as an owner can agist a pony upon the larger lot. For that reason he assessed the subject land at $80,000, representing approximately the price currently paid for smaller lots, which vary from $55,000 to $85,000. Mr Antoni does not agree with that comparison, noting that rural homesites are bought for many reasons, including the greater privacy afforded by the additional size of the lots.
In comparing the subject land with Parcel 1, Mr Antoni notes that Parcel 1 only has a single house upon it, is slightly higher than the subject land, but has a smaller (inferior) frontage. Overall he sees Parcel 1 and the subject land as comparable at $136,000.
In comparing Parcel 2 Mr Antoni sees its disability as a single site under section 17, as its irregular shape. In his opinion, the extra frontage of Parcel 2 in that circumstance provides no additional value because of the shape. Parcel 2 is also lower than the subject land in its unfilled state, which is the purpose of unimproved values. Mr Antoni also argues that in treating those lands as single residence sites under section 17, he has allowed for the increased number of neighbouring lots, which are generally seen as an inconvenience as a living unit, in parcels of area about 1ha. He agrees that on larger rural residential sites the impact of neighbours and shape of the lot has a lesser significance upon the value of the land.
In adopting his comparisons on a per square metre basis, Mr Stay also seeks support in unimproved values to the west along McGinn Road. He notes in particular Lot 227 on RP842275 at the corner of McGinn Road and McAlroy Road, which has an area of 4,039 square metres and was valued at $116,000 ($28.69 per square metre). Mr Stay argues that Lot 227 is at the top of the hill with good views to the east.
Mr Antoni rejects Lot 227 as evidence of a rural homesite, arguing that really represents a large normal residential lot. Mr Antoni also rejects any use of a per square metre comparison of rural homesites or normal residential lots, which he argues are valued on a site basis and not on a per square metre basis.
In comparing Parcel 3 Mr Antoni sees the most significant differences are the terrain and the shape of that parcel. Mr Antoni also notes that the adjoining Council parkland (Father Daley Park) is low flood plain indicating the lower elevation of Parcel 3 compared to the subject land. Mr Antoni argues that all Parcels 1 to 6 reflect appropriate relativities to the subject land. However he argues that relativities are secondary to his primary comparison of sales in determining the unimproved value. Mr Antoni notes in passing that he may have even erred on the conservative side in determining the unimproved value of the subject land. Mr Antoni agrees that a wider frontage was likely to be considered to represent a higher value where land can be considered for subdivisional purposes. However, he argues that for purposes of section 17, such advantages do not have the same effect, although he concedes that he allowed some benefit for the wider frontage of the subject land, because of the Council's approval of the second house on that site.
Comparison of Sales -
In support of his estimate of the unimproved value Mr Stay notes a recent sale of an improved parcel at Upper Kedron Road. That parcel had been on the market for almost a year, before selling on 27 September 1999 for $245,000. Mr Stay argues that demonstrates that the market for rural homesites is not an active one. Mr Antoni confirms the details of that sale, and notes that it occurred well after the relevant date.
However Mr Antoni analyses that sale concluding an added value for the improvements of $100,000, giving an unimproved value of the land at $140,000. Mr Antoni notes that the current unimproved value of that parcel (Lot 3 on RP 89887) is $139,000, which he argues supports the current value of the subject land. Mr Antoni notes that the valuations in that area were maintained between 1 October 1998 and 1 October 1999. However Mr Antoni argues that he prefers evidence of sales of vacant lands, rather than having to analyse improved sales, when determining the unimproved values.
In support of his valuation Mr Antoni provides the following sales of vacant rural homesites:· Sale 1 - (18 Eriskay Close, Ferny Grove - Lot 398 on RP884465)
This is a 1 hectare "Residential A" parcel located about 1.1km west of the subject land, and rising very steeply from the front to the rear. Access is via a 4 metre wide access strip from Eriskay Close, which has a right-angle bend making access difficult.
The sale is very irregular in shape and is encumbered by a major overhead power transmission line across more than 25% of the site. The land is elevated with good views, but is very restricted for a building site, and needing extensive construction of retaining walls. Overall the sale is seen as inferior due to size, shape, frontage, position and access.
The sale sold in July 1995 for $110,000 which after allowing for improvements was analysed at $109,500, and has been applied consistently at $110,000 up to and including the current valuation.
Mr Stay is aware of that sale having considered the site for development purposes, and rejecting it because of the inherent problems in building upon it. Mr Stay sees that as no comparison with the subject land, as he sees Sale 1 as merely a homesite. He also notes that sale backs on to some of the most expensive residential parcels in the area at Trossachs Place, which have panoramic views to Moreton Bay. Mr Stay sees Sale 1 as a different market to the subject land, and probably with views across to Settlement Road.· Sale 2 - (105 Priestly Road, Bridgeman Downs - Lot 5 on RP849763)
This is a 1.303ha rural residential parcel located about 8km north-east of the subject land, in the more up-market suburb of Bridgeman Downs. The sale is a regularly shaped parcel falling south to north towards the South Pine River, but with limited access off Priestly Road due to greater than 50% of the parcel affected by flood regulation lines.
The new dwelling since constructed has been restricted to the ridge line in the south-eastern corner of the parcel. Access is across a gully extending towards the southern boundary. The site faces across the valley to an extractive quarry across the river.
Overall the sale is seen as slightly inferior due to size and visual effects of the gravel extraction, and slightly superior due to its location in the more upmarket suburb.
The sale sold in December 1995 for $157,500 which, after allowing for improvements, was analysed at $157,000, and is now applied at 1 October 1998 at $165,000. Mr Stay rejects comparisons with Bridgeman Downs, which he argues is a much more prestigious suburb, noting recent comparisons reported in the press of average suburban lots in both suburbs. Mr Stay is also currently building in Bridgeman Downs, and has personal knowledge of the class of building in that area.
Mr Antoni agrees that Sale 2 is well removed from the subject land, and that Bridgeman Downs is generally speaking a superior location. However he sees his Sale 2 as one of the poorest lots in that suburb. With the disabilities of the sand extraction quarry, and the restricted building site on Sale 2, Mr Antoni sees that sale as providing evidence of movements overall in the rural residential market in Brisbane. Sale 2 was valued in December 1995 at $157,500, and by comparisons with sales of other Bridgeman Downs rural residential sites has now been valued at 1 October 1998 at $165,000. That increase (5%) over three years, in Mr Antoni's opinion, is to be compared to the current level of rural residential sites in the area, which have increased by 20% to 25% over the same period.
Mr Antoni draws difference between his Sale 2 and other 1 hectare rural residential sites in Bridgeman Downs, which he argues can cost from $250,000 to $300,000. He argues his Sale 2 is clearly not representative of the general Bridgeman Downs market. Mr Antoni also notes that his Sale 2 is zoned "Rural Residential" as compared to "Future Urban" for the subject land. Mr Antoni notes that there is no potential for subdivisional development with his Sale 2. However there is no real significance in the zoning of the subject land, as under section 17, any higher potential for that purpose is to be ignored in determining the valuation.· Sale 3 - (536 Payne Road, The Gap - Lot 23 on RP907989)
This is a 4.05ha non-urban parcel located about 4.5km south of the subject land. The sale is regularly shaped with a shared 4-metre wide easement access off Payne Road. The access is long, steep and winding, passing virtually across the centre of Sale 3. Approximately 90% of the site is affected by a VPO, and views are obstructed with limited views to the east. The site is extremely steep, and is traversed by two gullies, and there are two easements across the parcel for drainage and access.
The sale overall is seen as slightly superior in terms of environmental outlook, but inferior in terms of access, zoning, and proximity to conveniences.
The sale sold in April 1998 for $165,000 and after allowing for clearing and the restriction of the easement access, was analysed at $159,000, and applied at $150,000. Mr Stay has similar reservations about the suburb of The Gap, which he sees as having a totally different market to Ferny Grove. Mr Antoni concedes that the suburbs are different, but notes that Sale 3 is a very isolated parcel in The Gap. He also argues that if that 4-hectare Sale 3 was transposed to Ferny Grove, and if it was zoned "Future Urban" rather "Non-Urban" then Mr Antoni estimates that the land would have a value in the vicinity of $160,000 to $165,000. Mr Stay was not specifically familiar with Sale 3.
The Method of Valuation -
In undertaking his valuation Mr Antoni has valued the subject land as satisfying the requirements of section 17 of the Act, as a single rural residential homesite. He sees the parcel as having two possible house sites, but he has made no allowance for the second existing house now occupying the land. Mr Antoni concedes that there are few sales of rural residential parcels in the area, but speculates that that may reflect the desires of owners to benefit from any future subdivisional potential.
Mr Antoni argues that compared to normal residential sized lots of 800 square metres in that area, which would sell for $55,000 to $85,000, the current unimproved value for the subject land at $136,000 is appropriate. Mr Antoni also notes that during the period 1995 to 1997 (4 valuations), there had been a rise of 10% to 15% in residential smaller lots; while the subject land had been maintained during that period at $130,000. The current valuation at $136,000 is the first increase since the Court established the value for 1 January 1995 (AV95-510).
However while he contends for a valuation on the basis of a single homesite, Mr Fisher argues that it is open to the Court to consider the possible application of section 34(2) or section 35(1)(a). Mr Fisher notes that those provisions could allow for the issue of two separate valuations in view of the two dwellings currently located upon the subject land. Mr Fisher notes that Council had granted relaxation under section 7.6.16(b) in view of the potential for further subdivision of the subject land as "Future Urban".
When pressed for his estimate of the value of the subject land if it was considered to have the higher potential created by the two houses, Mr Antoni assessed a parcel of 1000 square metres surrounding one house, and the balance of 0.917ha surrounding the second house. Mr Antoni estimates the value of the first at $75,000-$85,000, and the latter at $125,000, giving an overall value of about $200,000 for the subject land.
Mr Fisher also notes that the appellant does not reside in either of the two houses upon the subject land, having them let to separate tenants. In respect of whether this Court could exercise its powers to direct for two separate valuations, Mr Fisher distinguishes the findings of MS and DL Bramwell v. Chief Executive, Department of Natural Resources (V98-858), 31 July 2000, unreported. Mr Fisher notes that in that matter the President had found that there was an impediment to the subdivision of that parcel, a matter, in Mr Fisher's opinion, not relevant in the current matter.
Decision:
(i) The Method of Valuation -
Before considering the evidence of sales and relativity, I consider first the matter of how the subject land is to be valued. My attention is drawn to the relevant parts of sections 34 and 35 of the Act which state:"34.(1) Unless the chief executive otherwise directs, there shall be included in 1 valuation -
(a)several parcels of land which adjoin, and are owned by the same person, and where either no part is leased or all the parcels are let to 1 person;
…………
(2) However, any such parcels of land shall be valued separately if buildings are erected thereon which are obviously adapted to separate occupation and which may respectively be lawfully held under separate ownerships.
35.(1) Unless the chief executive otherwise directs -
(a)several parcels of land which are owned by the same person, but which are separately let to different persons, shall be separately valued; "
In respect of the meaning of a "parcel of land" under the Act I note it is defined under section 2 to mean "every part of an area of land which is separately held by any owner, or any part of an area of land which the chief executive directs should be valued as a separate parcel".
The direction to the Chief Executive is such that parcels of land so defined shall be valued as one unless his discretion is exercised. It is also well established that the Chief Executive has the legal power to create a separate parcel. (Colonial Sugar Refining Co Ltd v. Valuer-General (1970) 37 CLLR 176; and also in Raynbird v. Valuer-General (1980) 7 QLCR 99.) However those powers must be exercised judicially, and not capriciously or unreasonably. If this Court was to find that the Chief Executive had so acted, then the Court has the jurisdiction to find the resulting valuation ultra vires, a finding concluded in Bramwell.
In the current matter Mr Antoni has not sought separate valuations, and the question now arises is whether this Court should so order to that end. Guidance in the background to making such a decision was included in Colonial Sugar Refining Co Ltd (supra), where the learned Member said at page 186:"This, to my mind, shows that the Legislature never intended to give to the Valuer-General an absolute, arbitrary, or capricious power to direct as to the valuation of parts of an area of land in separate pieces or parcels, but to give him such power only after he has directed himself, as it were, on the facts applicable to any piece of land. The duties conferred on the Valuer-General by the Acts are essentially practical ones involving examination of all the facts relating to an area of land before deciding how it should be valued for the purposes of the Acts. If these facts satisfy him that part of such an area should be valued as a separate piece of land then he may so direct and that result follows. But if the facts do not support such a direction and the Valuer-General still values any part of an area of land as a separate piece of land then, in my view, his direction can be subjected to review and may be set aside."
In the Bramwell matter, the President found that the appellants had obtained approval for a family subdivision in order to build a separate home for their parents, subject to meeting certain conditions. The Bramwells had been unable to satisfy those conditions, and the family subdivision approval had lapsed.
On the lapsing of the approval, and following advice from the Council, the Bramwells were given a Town Planning Consent Permit for a manager's residence which was subsequently built for the parents. A later enquiry of Council in respect of a possible further subdivision was disallowed in view of the existing new building. The outcome of those events was that separate parcels on that property could not lawfully be held under separate ownership as required under section 34(2).
In the current matter Mr Stay provides evidence of an application to subdivide the subject land, together with Lot 7 (Exhibit 4). Apparently that application was refused by Council because of a failure by the appellant to provide a legal point of discharge for stormwater. On that application the second house upon the subject land is shown fronting the extension of Sarah Crescent. However that application now has no legal standing, and like the Bramwell matter, there is no capacity for the second dwelling to be held under separate ownership. Accordingly, there is no legal standing for implementing section 34(2).
The term "lawfully held" in the context of s.34(2) has been found not be synonymous with "owned". That was found in Colonial Sugar Refining Co Limited v. Valuer-General (supra) at p.184:"In my opinion the word 'held' here is not synonymous with 'owned', but is merely and simply related to a question of fact in the sense of what the owner is doing with it as the owner. If in fact he is holding any part of it separately from any other part, whether he has subdivided it or not, then the part separately held is a parcel."
However while it may be possible to subdivide those parts in the current matter of the subject land which could achieve stormwater drainage via Sarah Crescent, such prospect must be seen in the context of the Chief Executive's current decision not to value the land as separate parcels. The evidence would suggest that because of the low-lying nature of lands in that area, any stormwater discharge is likely to be a problem, the overcoming of which should not be lightly assumed.
The matter of whether separate parcels may have been established in the current matter, similar to the findings in the Victoria Mill matter of Colonial Sugar Refining Co Ltd may also be distinguished. In that matter a series of houses for employees were erected upon separate parcels, separately held by the appellant. The learned Member found that the Valuer-General had adequately complied with the legislation in respect of determining separate valuations; but also found that certain directions in respect of the Victoria Mills manager's residence had been an unreasonable exercise of the power to direct, and should be corrected. The manager's residence was found to lie entirely within an existing legal separate parcel, and the proposal to theoretically divide that parcel was found to be capricious in the circumstances of that matter (page 188). In the current matter there currently is no legal standing for separate parcels to exist upon the subject land.
If I then consider whether this Court has the power to direct how the subject land should be valued, I note there is support for that in section 66 of the Act. However I also note that the discretion as to whether he will value the subject land as a single parcel, has already been adopted by the Chief Executive. He has no doubt followed that path bearing in mind the restrictions of section 34(2) already outlined. What is important, however, is that it is not open to this Court to challenge the exercising of the Chief Executive's discretion, unless it is proved that he has exercised that discretion in a capricious or unreasonable manner. That principle was followed in RM and AJ Beanland v. Valuer-General (1986-87) 11 QLCR 131, where the Land Appeal Court considered the findings of the High Court in House v. The King (1936) 55 CLR 499, at pages 504/5. The Land Appeal Court in Beanland said at page 135:"It follows that it is not enough for an appellant to convince us that if we were in the position of the Valuer-General we would have taken a different course. It must be shown that the Valuer-General has not had regard to all the material and relevant facts of the case or has otherwise been capricious or unreasonable. "
In the current matter I see no evidence that the Chief Executive has not considered all of the evidence, or that he has incorrectly assessed the legal implications for separate ownership of the parts of the subject land. I therefore find that the subject land should be valued as a single parcel under section 17 of the Act.
Comparison of Sales -
It is generally held that when determining unimproved value the preferred approach is to adopt comparisons with sales of vacant or lightly improved parcels. (See WM and TJ Fischer v. The Valuer-General)(1983) 9 QLCR 44, at 46; and R and MM Barnwell v. The Valuer-General (1989) 13 QLCR 13, at 17.)
It is also held that the correct method of determining lands for rural residential or residential purposes is not the rate per square metre, but rather comparisons on a site basis. That was clarified in Hans and Else Grahn v. Valuer-General (1992-93) 14 QLCR 327, where the Land Appeal Court said at page 330:"As the Land Appeal Court said in its decision on the appellants' previous appeal (H and E Grahn v. Valuer-General, AV89-246 and 247, 13 December 1990):
'for the purpose of valuing residential sites, the preferable method of comparison is on a site to site basis and not on the basis of a unit area valued comparison. Site for site comparison should take into comparison such matters as the size of the lots, the situation of and access to the lots, the shape and topography of the lots etc., and comparisons on a unit area basis do not necessarily reflect valuation considerations for the above features.'"
If I then consider Mr Antoni's sales, he concedes that Sales 2 and 3 are in different suburbs, but argues each of those are some of the less expensive rural residential parcels in those better class suburbs. Mr Antoni's main comparison is really with his Sale 1 at $110,000. Mr Antoni notes that the building envelope on that parcel is restricted by the steepness of the land, and the presence of overhead powerlines. He argues that public awareness of possible health problems as a consequence of exposure to the powerlines, was likely to restrict buildings to the lower parts of Sale 1. I would agree with Mr Antoni that the subject land has an unimproved value in excess of $110,000 on that comparison.
The only sales evidence that Mr Stay relies upon is the sale in Upper Kedron Road, which Mr Antoni advises is currently valued unimproved at $139,000. In respect of Mr Stay's conclusion that Sale 1 is really only just a small residential site with large areas of unusable land surrounding it, I make the following observation. Many purchasers of rural residential lands seek a house location which is afforded views and privacy as a lifestyle. Sale 1 would appear to satisfy that criteria.
The main benefit I obtained from Mr Antoni's Sale 2 is that even for that parcel with major disabilities in outlook, terrain and access, there has been an increase of 5% in the unimproved value, while surrounding rural residential parcels have increased by 20% to 25%. In line with those trends, there is nothing to disturb the increase in the subject land from $130,000, when this Court last established the unimproved value, to the current $136,000 (4.6%). I also note that Sale 3 is a larger area (4 hectares) and there was likely to be some small extra premium for that extra size, all else being equal.
Relativity -
If I then compare the relativities with surrounding parcels, I find that the main differences between the parties appear to lie in their assessment of the subject land. Mr Stay sees the major comparability with the lower lands in Hogarth Road, while Mr Antoni basically draws comparisons with the higher lands along McGinn Road. As a rural homesite I would agree with Mr Antoni that the location of the housepad is a key factor. On that basis I prefer Mr Antoni's approach. I also see no disparity with the adjoining parcels on an unimproved basis. However in considering the significance of relativity, I am reminded of the findings of WM and TJ Fischer v. Valuer-General (supra) where the Land Appeal Court said at p.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."
Summary:
In considering this matter I am aware that section 33 of the Act directs that the unimproved value as determined by the Chief Executive is deemed to be correct unless proved to the contrary. I am also aware that under section 45(4) of the Act the onus of proof in the appeal lies with the appellant. On the evidence before me I am not convinced that the appellants have discharged that responsibility.
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 3 on RP 81533 as determined by the Chief Executive at $136,000 is affirmed.
(NG Divett)
Member of the Land Court
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