Tardent v Department of Natural Resources and Water
[2010] QLC 27
•17 February 2010
LAND COURT OF QUEENSLAND
CITATION: Tardent v Department of Natural Resources and Water [2010] QLC 0027 PARTIES: David G Tardent
(appellant)v. Chief Executive, Department of Environment and Resource Management (formerly Department of Natural Resources and Water)
(respondent)FILE NO: VLA056-09 DIVISION: Land Court of Queensland PROCEEDINGS: An appeal against annual valuation of land under the Valuation of Land Act 1944 HEARD ON: 9 February 2010 DELIVERED ON: 17 February 2010 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr RS Jones ORDER: 1. The appeal is dismissed. CATCHWORDS: Unimproved value of land - Valuation of Land Act 1944 – existing access via encroachment over adjoining land – threat of loss of lawful access – impact on unimproved value of land. APPEARANCES: Mr D G Tardent, in person, for the appellant.
Mr W Isdale of counsel instructed by Mrs T Johnson, Principal Lawyer, Department of Environment and Resource Management, for the respondent.
Background
Mr Tardent, the appellant, has again appealed against the assessment of the unimproved value attributed to his land by the respondent, the Chief Executive, Department of Environment and Resource Management. The unimproved value determined by the respondent as at 1 October 2007 is $230,000. In his notice of appeal the appellant states that the unimproved value of his land should be $35,000. The grounds of appeal are:
"Unable to sell with problems of legal access and subsequent Council usage.”
The subject land is located at 677 Tomewin Mountain Road, Currumbin Valley and is more properly described as Lot 4 on Registered Plan 149677, Parish of Tallebudgera, County of Ward. The land is located approximately 31 km from the Southport Post Office in a southerly direction and contains an area of 4.62 hectares.
On the hearing of this appeal the appellant was self-represented. The respondent was represented by Mr W Isdale of counsel and relied on the valuation evidence of Mr K Brown, a registered real estate valuer who is employed by the respondent.
Some Relevant Statutory Provisions and Principles
Pursuant to s.33 of the Valuation of Land Act 1944 (VLA), the valuation appealed against is deemed to be correct and the appellant bears the burden of proving that it is wrong. In Brisbane City Council v The Valuer-General[1] Gibbs J, in delivering the leading judgment of the High Court, considered that the presumption in favour of the correctness of the statutory valuation may be rebutted where it can be shown that the valuation was based on a wrong principle and/or involved a significant error of fact and/or was made by a fundamentally erroneous method.
[1] (1977-78) 140 CLR 41 at 56-57. See also GE Cominos & Co Pty Ltd v Chief Executive, Department of Lands (1996-97) 16 QLCR 311 at 331-332 (LAC).
It is incumbent upon the appellant to place before the Court sufficient evidence to upset the statutory presumption of correctness provided for in s.33. Notwithstanding the “equity and good conscience” guidelines enshrined in s.7 of the Land Court Act 2000 this Court is not an investigative tribunal. In Qualischefski & Ors v The Valuer-General[2], the Land Appeal Court relevantly said:
“… However, upon appeal a statutory onus of proof is cast upon the appellant and he has to accept, within the confines of the grounds set out in his Notice of Appeal to the Land Court, the burden of proving the Valuer-General incorrect. Neither this Court nor the Land Court in the subject jurisdiction may assume the role of an investigating tribunal requiring the Valuer-General to substantiate his case. …”[3]
[2] (1979) 6 QLCR 167 at 172.
[3] See also Tow v The Valuer-General (1978) 5 QLCR 378 at 381 (LAC).
Issues in the appeal
As was the case in the previous appeal concerning this land[4] there is really only one issue. Namely; the impact on the unimproved value of the land resulting from the problems associated with vehicular access.
[4] Tardent v Department of Natural Resources, Mines and Water [2008] QLC 0186.
Some of the more relevant details concerning access are set out in my earlier decision at paragraphs [8] to [11]. As these facts were unchallenged or otherwise uncontroversial I intend to simply repeat and rely on them in this appeal:
“[8]Tomewin Mountain Road is a steep winding two lane bitumen sealed carriageway with earth verges. The road frontage of the land is approximately 290 metres. For the most part the land slopes up very steeply from the road. In addition to being steep, the land is also heavily timbered along its road frontage.
[9]Because of the topography of the land and the road which, generally speaking, rises from north to south, the access point to the land was designed to be as close as possible to its south-western corner. From the south western corner an internal access road of concrete construction then turns back in a northerly direction to the building sites on the land.
[10]As I understand the evidence about this, access was negotiated on behalf of the appellant by his father with the Gold Coast City Council. This occurred some time in the mid 1980’s. Unfortunately however, the actual vehicular access point to the land, that is where it crosses from the road to private property, is in fact located on adjoining land being Lot 382 on Plan WD4389. That land is under the control of the Environmental Protection Agency of Queensland (EPA).
[11]The access point to the land encroaches onto the land controlled by the EPA by about 53 square metres. That area is now cleared and covered in concrete and a rock retaining wall. There is no suggestion that the appellant acted in any untoward way concerning this access. In fact it would appear that the vehicle crossover from the land to the road was located after consultation between the appellant's father and a ‘councillor’ of the Gold Coast City Council and built by council employees or employees of the Department of Main Roads.”
In the previous appeal I determined the unimproved value to be, as at 1 October 2006, $230,000. In reaching that conclusion, I said:[5]
“In the circumstances of this appeal, the evidence and the conclusions I have reached based on that evidence, lead me to decide that a prudent vendor and prudent purchaser would settle on a price of $230,000. That involves a discount of about forty five percent of the valuation of Mr Brown. In my opinion, such a discount would be a fair compromise between the prudent purchaser seeking to minimise his risk of exposure on the purchase and the prudent vendor seeking to maximise his price, while having to recognise the very real problems associated with the existing access arrangements. In this context I do not accept Mr McMiles' evidence to the effect that land without legal vehicular access would be impossible to sell at any price.” (emphasis added)
[5] At para [37].
The particular risk concerning access to the land was primarily concerned with what was then called the EPA’s attitude to granting the appellant permanent legal access to his land over the encroachment area.[6]
[6] See at paras [27] to [36].
There was engineering evidence to the effect that, to construct alternate access to avoid any encroachment would cost in the order of $250,000. Information which has come to light in this appeal suggests that this might be a conservative estimate. Approval from the relevant authorities would be subject to various design constraints including grade, sight distances and maintenance. In an email forwarded to Mr Brown on 7 April 2008[7] from a Mr D Joseph of the Department of Main Roads it is said:
[7] Part of Exhibit GS-3 to affidavit of Mr G Smith filed 11 November 2009: See also document 16 of Ex 4, (appellant’s bundles of documents “Packet B”) and correspondence from the respondent dated 23/12/2008. Part of Ex 3, appellant’s bundle of documents “Packet A”, document 5.
“I have had the inspectors go and inspect the property for a suitable access and have provided the following points to consider:
Found that it is near impossible for an access to be constructed without major earthworks.
As frontage is heavily vegetated, if major earthworks were performed, it would disturb a large area of vegetation.
As the frontage is extremely steep it would require large batters at an angle which will clear a large portion of the vegetation.
Would cause future maintenance problems.
Section 7.5 (Driveway Access) of the Gold Coast City Council’s Land Development Guidelines, details the design for gradients of driveways, which allows up to 20% (or a 1 in 5 slope).
It would be our recommendation that the existing access be maintained and legalised.
If you have any further queries, please feel free to contact me.”
What has changed since 1 October 2006?
Consistent with my earlier decision, the respondent has valued the land as at 1 October 2007 in the amount of $230,000. In his report[8] Mr Brown explained how he arrived at his valuation:
[8] Ex. 6 p. 28.
“Valuation
Given the above sales comparison and the analysis of the subject’s cancelled contract, I believe that $520,000 is a fair and reasonable starting valuation, based on the premise of legal practical vehicular access, with all access uncertainties resolved.
From the appeal Court decision AV2007/0186, a value allowance of $190,000 was given in recognition of the potential difficulty in establishing legal vehicular access. In recognising that the previously determined court allowance of $190,000 included an adjustment of approximately 20% for cost escalations over approximately two years, a readjusted allowance of 10% as at 1/10/2007 is considered appropriate. A 10% increase on $190,000 would equate to $210,000.
Valuation Calculation
From the legally accessible assessed starting value of $520,000 a deduction of $210,000 in recognition of access difficulties, would result in an unimproved value of $310,000.
From the assessed starting value of $520,000, the currently issued valuation of $230,000 by simple deduction, provides an allowance in the order of $290,000 (some $100,000 over and above that previously allowed by the Court).
Thus, the issued valuation of $230,000 (1/10/2007) is considered to be highly conservative.”
While I accept that the sales evidence, absent the legal difficulties associated with access to the land, would support an unimproved value of in the order of $520,000 that is as far as the sales evidence can go. They provide no probative evidence of the unimproved value of the subject, other than, as was Mr Brown’s approach, to provide a starting point or value.
In preparing his case Mr Tardent issued two subpoenas. The first required the respondent to produce a significant number of wide ranging documents. The second required a Mr Wall to attend and give evidence at the hearing of the appeal. Mr Wall is the Associate Director General of the respondent department’s successor. On 12 November 2009, the first subpoena was set aside for reasons it is not necessary to go into now. On 10 December 2009, an application was brought by the respondent to have the second subpoena also set aside. Notwithstanding the respondent’s legitimate concerns that Mr Tardent really wished to pursue Mr Wall about a number of the respondent’s policies which had no relevance to this appeal, I refused to set the subpoena aside. But, it was made abundantly clear to Mr Tardent that any questions he directed towards Mr Wall would be carefully monitored to ensure that they were in truth directed to only relevant matters. Notwithstanding a considerable degree of latitude being allowed by Mr Isdale in the questioning of Mr Wall by Mr Tardent, his evidence did not materially assist Mr Tardent’s case.
My assessment of the unimproved value of the land as at 1 October 2006 was largely the result of conclusions I reached concerning the then Environmental Protection Agency’s attitude to the access problem. Evidence in this appeal however, is indicative of a more recent and flexible approach to access. In this context it is appropriate to deal with some of the correspondence between the respondent and Mr Tardent.
On 23 December 2008 the respondent wrote to Mr Tardent. This correspondence relevantly said:
“Your offer to exchange land as a means to resolve this situation is acknowledged and the EPA would be prepared to consider this option. The EPA policy in relation to revocation of national park in exchange for freehold land is that the exchange is contingent on a minimum of a two-for-one area basis, with the exchange land being of suitable conservation value. Accordingly, if you are agreeable to this proposal, no less than 100m², which is the amount quoted in your letter, of quality conservation value land (uncleared and adjoining the national park) would need to be offered in lieu of the excision.
Preparation of all registered survey plans for the land exchange and all associated costs, including stamp duty and other fees would be your responsibility. The EPA believes that Native Title has been extinguished on this property as the land was freehold prior to declaration as national park. …”[9]
[9] Part of Ex. 3, appellant’s bundle of documents “Packet A”, document 5.
On 23 April 2009 the respondent wrote again to Mr Tardent. In this letter it was suggested that there might be three areas of land available for exchange (options 1, 2, and 3) but in reality there was only one site which the respondent was prepared to accept as land suitable for exchange. The “two for one” land exchange proposal was confirmed by the respondent as late as 23 October 2009. As I understand the evidence, the time limit placed on Mr Tardent’s acceptance of the proposal has since expired.
On 27 January 2010 Mr Tardent communicated to the respondent the following information and proposal:
“Your solution of a land swap does not recognise the historical aspects of the issue and also have serious financial repercussions for the value of my property.
The cost of your solution would be about $35,000 to correct an anomaly of 85 m² of land valued at about $750.
My Town Planner also advises that my current D/A in council for an Ecotourism Facility would be invalid once my boundaries are reconfigured. The cost of this and loss of value to my property may stretch to several hundred thousand dollars.
It is an unreasonable solution.
I believe that under the Australian Constitution Section 51(xxxi), I am entitled to be dealt with ‘on just terms’.
WITHOUT PREJUDICE
I am willing to rectify legal access to my property on the following basis:
(i)That there is no re-configuration of my title boundaries
(ii)That the 85 m² of NP remain in public hands and be dedicated as road
(iii)That I pay DERM on the basis of ‘double the dollar value’ of this land area value, an amount of $1,500
(iv)That I supply an Explanatory Format Survey Plan (compiled) [which approval must be given by DERM] at my expense to rectify the revocation. No other costs on my part.
(v)That DERM [on behalf of the Qld Government] acknowledge they have no objection as an adjoining owner [or provide no opposition] to my development application in the Gold Coast City Council for an Ecotourism Facility on my property at 677 Tomewin Mountain Road, Currumbin Valley …”[10]
[10] Part of Ex. 5, bundle of documents “Packet C”, document (v).
Mr Tardent’s reference to eco-tourism development of the land is not relevant in the circumstances of this appeal. It no doubt could be a matter of real significance concerning the future highest and best use of the land. However, as at the date of valuation, Mr Brown determined the highest and best use of the land to be for rural residential development and valued it accordingly. Mr Brown’s assessment of the highest and best use of the land was not challenged.
The counter offer of Mr Tardent has not been accepted, if not rejected outright, by the respondent. Relying on this correspondence Mr Isdale, submitted that there was a strong argument that the unencumbered or unaffected unimproved value of the land should only be reduced by in the order of $35,000. That figure being Mr Tardent’s estimate of what it would cost to bring into effect the respondent’s proposed resolution of the access dispute. Mr Isdale pointed out that his submission was not to be interpreted as the final position of the respondent concerning the unimproved value of the land but was evidence which strongly supported Mr Brown’s opinion that his assessment was a conservative one.
In the absence of there being any better evidence I accept that Mr Tardent’s estimate of $35,000 could at least be indicative of the cost of rectifying the access problem in accordance with the respondent’s proposal. However, I am not convinced that the respondent’s correspondence of 23 December 2008 necessarily reflected the respondent’s position as at the relevant date of valuation. Correspondence closer to that date, 20 November 2007, was indicative of a much harder line being taken by the then Environmental Protection Agency and Queensland Parks and Wildlife Service.[11] Bringing all of the evidence on this issue into account, I am however prepared to accept that, in circumstances where a prudent vendor/purchaser pressed for a sensible resolution to the matter, a solution of the type proposed by the respondent on 23 December 2008 would probably have been achievable at the relevant date.
[11] Ex. 3, appellant’s bundle of documents “Packet A”, document 11.
Accordingly, I accept that this evidence does tend to indicate that Mr Brown’s assessment was a conservative one. However, it is not necessary to have any regard to this evidence to reach the conclusion that the statutory presumption of correctness has not been disturbed in this case.
Mr Tardent presented no probative evidence in support of his estimate of $35,000. Further, there was no serious challenge to the expert opinion of Mr Brown. While there might be some evidence to suggest that the so-called “distant ocean views” from the subject land might be slightly less than Mr Brown thought, on balance I have concluded that he has regard to reliable sales evidence which he properly analysed and applied to the subject land. This of course, as I have already pointed out, goes only part of the way to resolving this dispute. That is, the sales evidence only provides a guide to what the unimproved value of the land might be absent the subject access difficulties.
Turning then to the question of the appropriate allowance to be made for these difficulties I consider that Mr Brown’s approach to be reasonable, if not conservative. Perhaps more importantly no probative evidence was put before me to show that the allowance was inadequate or otherwise unreasonable.
Before determining this appeal I should deal with the statement of Mr T McMiles. Mr McMiles is an “independent licensed real estate agent” who provided a one page statement (dated 16 November 2009) to Mr Tardent. Mr Tardent intended to rely on this statement in support of his case that the unimproved value of the land was effectively a nominal amount. This statement was included in Mr Tardent’s bundle of documents identified as “Packet B evidence summary”. I refused the admission of Mr McMiles’ statement into evidence. A brief summation of the reasons for not admitting this document are: first, Mr Tardent had requested that Mr McMiles give his evidence by way of telephone. The reason for this was said to be the medical condition of Mr McMiles. Mr Isdale made it clear that his preference was that Mr McMiles should give his evidence in open Court and, if Mr Tardent insisted on the evidence being by way of telephone, he should provide sufficient evidence of Mr McMiles’ medical condition to justify departure from the normal course of proceedings. During the hearing of this appeal, in support of his application, Mr Tardent produced a certificate by a Dr Tomasevic. This certificate did not become an exhibit. It relevantly said:
“I hereby certify that on Friday, 5 February 2010 I consulted Terry McMiles.
Who states that he was suffering from a Medical Condition.
And will be unfit for duty up to and including 12/02/10.
He states the incapacity commenced on 5/02/10.”
Mr Isdale, correctly in my opinion, contended that the certificate was entirely unpersuasive as it contained nothing but hearsay and expressed no independent medical opinion. Over the luncheon adjournment Mr Tardent was given the opportunity to provide to the Court and the respondent further information concerning Mr Miles’ medical condition. In this regard Mr Tardent was provided with the Court’s facsimile number. No further information was received and on proceedings resuming Mr Tardent advised the Court that he would not be calling Mr McMiles. Notwithstanding that he wanted Mr McMiles’ statement to be accepted into evidence in support of his case. Mr Isdale objected to that course of action and his objection was upheld.
Before upholding Mr Isdale’s objection I had the opportunity to read the statement. In my opinion, even if the facts and assertions made in that statement were largely accepted it would not have affected the outcome of this appeal.
For the reasons set out above the statutory presumption of correctness provided for in s.33 of the VLA has not been rebutted and the appeal must be dismissed. This case is but one example of a large number of appeals that come before the Land Court where the appellants appear for themselves without the assistance of an appropriately qualified and experienced valuer. As the Land Appeal Court observed in Qualischefski at 172: the onus which the appellant must assume in appeals such as this is not an easy one to discharge without the assistance of an expert valuer capable of leading probative evidence of value.
Order
1. The appeal is dismissed.
R S JONES
MEMBER OF THE LAND COURT
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