Theologidis v Chief Executive, Department of Natural Resources
[1999] QLC 112
•19 October 1999
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LAND COURT
BRISBANE
19 October 1999
Re: Appeal against an annual valuation
Valuation of Land Act 1944
Valuation Roll Nos 38770/10000 and 38900/10000
Local Government: Caboolture Shire
(V98-930 and V98-931)
Solon and Athina Theologidis
v.
Chief Executive, Department of Natural Resources
(Hearing at Caboolture)
DECISION
Background:
The above two properties were heard concurrently as it is the appellants’ case that the lands are held in the one ownership, and are used for the same purpose, and should continue to be valued as a single parcel for rating purposes. The parcels are located at 69 Webster Road, Deception Bay, and are described as Lot 55 on RP 30538 (V98-931) and Lot 56 on Plan SP 112483 (V98-930), Parish of Redcliffe. The two parcels are adjoining, and are located about 1 kilometre east of the Deception Bay Market Place Shopping Centre. Both parcels are zoned as Residential A under the Town Plan of the Caboolture Shire Council (the Council) of 12 March 1998, and current at the date of valuation at 1 October 1997. The key issues are the use of the land, the impact of easements, impact of access, relativity and the comparison of sales.
On 2 November 1998 the Chief Executive issued valuations of the subject lands at $32,000 (Lot 55) and $34,000 (Lot 56). Following objections the Chief Executive confirmed those unimproved values on 30 November 1998. The appellants have now appealed claiming the correct unimproved value should more properly be $21,250 (Lot 55) and $21,500 (Lot 56), both being 50% of the unimproved value of the valuation No. 143-38770 of the combined parcels Lots 55 and 56 formerly determined on 1 October 1997 ($42,500). A Court supervised preliminary conference was unable to resolve differences between the parties, and the matters were heard concurrently on 19 July 1999.
Mr S Theologidis appeared and gave evidence for the appellants. Mr J O’Rourke, Principal Legal Officer, appeared for the respondent, calling evidence from Mr Philip Christopher Smith, the Departmental registered valuer responsible for determining the valuations.
The evidence:
(1) The nature of the land -
The subject land comprises two separate parcels upon which separate residential dwellings have been constructed. Both parcels are generally level and at road level. Lot 55 fronts Sinnott Street which is bitumen sealed with concrete kerbing and channelling, and there is good access to Sinnott Street which is a cul-de-sac. Lot 56 is at the corner of Deception Bay Road and Webster Road. Deception Bay Road is a four-lane divided bitumen sealed road with concrete kerbing and channelling. Webster Road is bitumen sealed with part kerbing and channelling.
However there are traffic lights at the intersection of those two roads, which on the evidence of the appellants, prohibits direct physical access to Webster Road from Lot 56. Current access is via a driveway located approximately in the northern frontage of Lot 56, with left only turning access onto Deception Bay Road. Mr Smith refutes that claim, arguing his inquiries with the Council suggested that access to Webster Road would be available.
The appellants acquired the subject lands as vacant parcels in 1965, and both Lots 55 and 56 are held under the one title in the name of Athina Theologidis. A search of the title record reveals that, other than a registered mortgage, and the normal rights and interests reserved to the Crown, there are no other registered encumbrances against the title.
The appellants argue that there are two major encroachments by ancillary buildings at the rear of the two Lots. Mr Theologidis argues that a brick carport structure (four bays) located on Lot 56 is in fact appurtenant to Lot 55, while a concrete block shed located on Lot 55, is appurtenant to Lot 56. There was some disagreement about the extent of any minor encroachments upon either parcel by the roofs of the two dwellings and an intervening fence line. An apparent difference in the location of the ancillary buildings by ground measurement and the photo imaged with the boundary superimposed, was discussed. However, based upon photographic evidence supplied, it would appear that the roof lines join at or about the common boundary, and the intervening fence line extends up to one metre at its southern end into Lot 55.
Mr Theologidis argues that there is an unregistered easement for access purposes over the two ancillary buildings, which, he argues, prevents either parcel from being used separately. However he confirms that the easement documents were not available to determine the full extent of their encumbrances upon either title, and that the documents were not subjected to survey to delineate the extent of the encroachments. Apparently Mr Theologidis drafted the wording of the documents himself without legal assistance. Mr Theologidis advises that the easement did not exist when he bought the land, and it was developed progressively over some time about 1998. Mr Theologidis also confirms that there had been no caveat registered with the Registrar of Titles, although he claims, the Council were aware of the existence of the easements. Mr Smith was unable to confirm that an easement existed when he made inquiries with the Council.
To assist the Court Mr Theologidis annotated an aerial photograph of the sites (Exhibit 5), which purported to show the approximate location of the easements, including an access way to Deception Bay Road. It is presumed that the width of the easement would be sufficient to allow free movement of a vehicle over that route. The only evidence of the easement supplied to the Court was in the form of an affidavit that the easement existed, and that it made each parcel subservient to the other (Exhibit 2).
Mr O’Rourke observed that the creation of an easement was defined by section 82 of the Land Title Act, which refers to the “registration of an instrument of easement”. Mr O’Rourke also notes that remedial action to provide for an encroachment may be found in the Dividing Fences Act, and section 184 of the Property Law Act 1974.(2) History of the valuations –
Since the land was acquired by the appellants in 1965, there has been a single valuation issued for the two parcels, until the current move to value the land separately. At the annual valuation at 1 October 1997 the combined lands had been valued as a single parcel at an unimproved value of $42,500. The unimproved value at 1 October 1996 had been $45,000. Subsequent to that annual valuation the appellants sought approval of the Chief Executive, Department of Natural Resources to close part of the Deception Bay Road area, and for that triangular parcel to be amalgamated into Lot 56. By plan of survey SP112483 the old Lot 56 was amended to an area of 1,198 square metres. The appellants paid an amount of $3,500 for the road closure, including costs of survey.
The survey was undertaken in April 1998, the plan was registered on 2 November 1998, and the land was subsequently transferred to the appellants. Mr Smith has adopted the date of 13 August 1998 as the date of the valuation, based upon his understanding of the availability of a separate Deed of Grant for Lot 56. Mr Theologidis notes that the appellants did not receive notice that the new Deed of Grant was approved to issue until 29 October 1998 (Exhibit 15). On that basis he argues that the date of registration of the new Deed would have been post 29 October 1998. On the evidence available on plan SP112483, it would appear that Mr Smith has adopted the date of imaging of the plan of survey at 13 August 1998, rather than the actual date of ownership of the amended Lot 56.
However the relevance of that date of 13 August 1998, would only appear to be important in that it was the first time the matter of possible separate use of the subject lands was brought to Mr Smith’s attention. If it is the policy of the Chief Executive in such matters to adopt the availability of the plan of survey as the relevant date for reassessment of the valuation under section 34(2) of the Valuation of Land Act, then that is a matter for consideration by the Chief Executive.
In the context of this matter the actual date of registration of the new Deed is not significant, other than in relation to the new area of Lot 56 for comparison purposes. However the normal processes of the application to close the road would have ensured that knowledge was known by the Chief Executive prior to 13 August 1998. In fact Mr Theologidis confirms that the approval to close the road was officially approved in March 1998.
Having had his attention drawn to the subject lands in August 1998, Mr Smith further examined the current uses of the two parcels, and determined that both parcels were capable of separate occupation. Under section 34(2) of the Act he therefore exercised the Chief Executive’s responsibility under the Act, and issued two separate valuations, which precipitated the current appeals.
Mr Theologidis argues that such actions are in contradiction with sections 37 and 38 of the Act, as he sees the new valuations as retrospectively applied to the date of 1 October 1997. Mr Smith confirms that the date of valuation at 1 October 1997 is merely an approved date for all valuations in the State in order to provide consistency for revenue purposes under section 37(3) of the Act. The actual date of effect for the current valuations was taken as 13 August 1998, for the reasons previously stated.
Mr Theologidis also draws support for his contention that an error has been made in the valuation, by noting that advice from the Chief Executive on the outcome of objections to the valuations, would appear to have been incorrect. He notes that times for appeals under section 45(2) and section 55(2) had been inadvertently confused by the respondent. However those matters appear to relate to the amendments to standardise the times for appeals (now 42 days) introduced into the Act in 1997. Mr Theologidis would appear to be referring to an out-of-date copy of the Act. Mr Theologidis also argues that the move to issue two separate valuations for the subject land, appears to be inconsistent with the directions of section 29(2) which seeks to allow for two adjoining parcels held under common ownership, and used by the one person, to be afforded a single valuation. Because of the major encroachments, he argues those two parcels could not be sold separately.(3) The use of the lands -
A key difference between the parties is their understanding of the use of the land parcels. Mr Theologidis argues that the two dwellings upon Lots 55 and 56 are used by one single family unit. He concedes that the dwelling upon Lot 56 has four to five bedrooms in the middle section, and two separate units on the top floor. Both dwellings are large and the one on Lot 56 is of three storeys and the one on Lot 55 is of two storeys. Mr Theologidis has an extended understanding of what might constitute “a family”, but concedes that it includes his wife, children and partners and grandchildren. This extended family perhaps stems from his Greek background, but it is clear that the occupation of the two dwellings is by more than a single nuclear family unit.
Mr Smith notes that a recent newspaper clipping from the Northern Times of 2 July 1999 supports that there may have been some further occupation of the building on Lot 56, beyond the appellant’s family. While that article was only hearsay, and the newspaper editor was unavailable to substantiate his opinions expressed, the article appears to lend support to Mr Smith’s opinion of separate use of the parcels. However the newspaper article by itself is of little importance, as it is merely whether the parcels are capable of separate use, rather than that they are separately used, which is key to the valuations.
In support of his argument that the lands should remain under the one valuation, Mr Theologidis notes that under section 33 the unimproved values originally determined for the one parcel at $42,500 at 1 October 1997, is taken to be correct. On that basis he argues that the principle of estoppel provides a shield of protection to the owner which would ensure that the valuation can not now be changed by the Chief Executive. Mr O’Rourke counters that assertion by arguing that the doctrine of estoppel cannot be relied upon to preclude a statutory officer from the proper discharge of his duties, and that the Crown cannot by representation prevent the performance of a statutory duty or the exercise of statutory discretion. In that regard Mr O’Rourke refers to Halsbury’s Laws of Australia, volume 12, para 190-20.(4) Comparison of sales -
To support his valuations, Mr Smith analysed the following sales of vacant Residential A lands:
· Sale 1 - (Sarah Court, Deception Bay – Lot 255 on RP 813595)
This is a 964 square metre irregular shaped parcel at the end of a cul-de-sac, about 800 metres west of the subject. The sale is smaller in size than Lot 56 and larger than Lot 55 and slightly superior in location. Overall the sale is superior to the subject.
The sale sold in March 1997 for $42,500 which, after allowing for improvements was analysed at $40,500 and applied at $40,500.· Sale 2 – (Janelle Court, Deception Bay – Lot 950 on RP 846716)
This is a 722 square metre irregular shaped parcel at the end of a cul-de-sac, about 850 metres south west of the subject. The sale is smaller in size and slightly superior in location. Overall the sale is superior to the subject.
The sale sold in February 1997 for $40,000, which, after allowing for improvements was analysed at $38,500, and applied at $38,000.· Sale 3 – (Orchid Drive, Deception Bay – Lot 1 on RP 909252)
This is a 740 square metre irregular shaped parcel, about 500 metres east of the subject. The sale is smaller in size but in a superior location. Overall the sale is superior.
The sale sold in June 1997 for $44,500, which, after allowing for improvements was analysed at $43,500, and applied at $38,500.· Sale 4 – (Jacqueline Court, Deception Bay – Lot 16 on RP 881758)
This is a 1,051 square metre irregular shaped parcel at the end of a cul-de-sac about 2.6 kilometres north-west of the subject land. The sale is smaller in size to Lot 56 but larger than Lot 55. The sale is superior in location. Overall the sale is superior.
The sale sold in June 1997 for $48,000, which, after allowing for improvements was analysed at $46,750, and applied at $39,000.
Mr Smith draws comparisons with Sales 1 to 3 for Lot 55, and Sales 1 to 4 for Lot 56. Mr Theologidis draws support in a general way from signs of land for sale in Deception Bay Road at asking prices of $27,750, although he was unable to refer directly to which specific lands those signs referred, or if indeed the lands had been sold. It had been his assumption that the sale signs had referred to the actual lands fronting Deception Bay Road, and almost immediately opposite the subject land.
Mr Smith rejects that those sale signs provide any significant evidence, as he argues as at 1 October 1999 he was unaware of any sales in that area at prices below $30,000. Indeed his Sale 3 ($48,000) was in an area where a developer subsequently went into liquidation, and some forced sales perhaps had occurred, but after the relevant date.(5) Relativity –
While the matter of relativity was not specifically raised in the notice of appeal, the relativity of surrounding parcels had been considered by Mr Smith when he assessed Lot 56 after the road closure. Mr Smith argues that the current unimproved values of Lot 55 ($32,000) and Lot 56 ($34,000), are in correct relativity with surrounding parcels. He notes that Lot 51 ($28,000) and Lot 53 ($31,000) to the north of Lot 55, reflect some allowance for the increased traffic noise along Deception Bay Road. The unimproved value of Lot 56 ($34,000) makes some allowance for the extra size of Lot 56 (1,198 square metres) compared to Lots 51 to 55 (all are 734 square metres).
Decision:
(i) The method of valuation -
I turn first to the matter of whether the respondent has properly exercised his statutory responsibilities under the Valuation of Land Act. I note that Mr Theologidis claims that protection under section 33, in the decision to previously continue treating the two parcels under the one valuation, should provide an ongoing envelope to ensure against implications of section 34(2). Mr Theologidis argues that it is inconsistent to assess the unimproved value of the land as if any improvements upon it did not exist; while at the same time under section 34(2) to take note of the existing buildings and determine that they may be adapted for separate occupation. Mr Theologidis seeks support that the two adjoining parcels should have a single valuation in section 34(1)(a).
In examining Mr Theologodis’ reliance upon the principle of estoppel, I turn to Halsbury’s Laws of Australia, volume 12, paras 190-25, which deals with estoppel against statute. I note also that estoppel is taken to mean that the law prevents a party from pursuing a course of conduct. In that context estoppel is regarded as a rule of evidence, (Cross on Evidence, 3rd edition (1986), para 3.64). Indeed it is noted in Maritime Electric Co v General Dairies Limited [1937] AC 610, Bowen LJ noted at page 620:Estoppel is only a rule of evidence; you cannot found an action upon estoppel. Estoppel is only important as being one step in the progress towards relief on the hypothesis that the defendant is estopped from denying the truth of something which he has said.”
While such rules of evidence have the same effect as the rule of substantive law, those substantive laws are always subservient to statute legislation of the Parliaments.
The matter of reliance upon the principle of estoppel in an action involving the granting of a further lease over reserved land and Crown land, for which no title existed in the name of the lessee (the Council), was examined in Sutherland Shire Council v James and Another (1963) 8 LGRA 97. In that matter the Sutherland Shire Council consented to the sub-leasing of an area, but the Minister for Lands did not consent to that action, claiming that the Council had no powers to sub-lease the land. The sub-lessee sought protection in the doctrine of estoppel, arguing that the Council had acquired an interest in the land, and had therefore the power to enter into a lease of the land. Accordingly it was argued that the Council could therefore not argue that the lease did not exist.
In that matter the Supreme Court of New South Wales sought guidance in Minister of Agriculture and Fisheries v Matthews [1950] 1 KB 148, noting that the Minister in that matter was not estopped from denying that a tenancy existed, and that the Minister’s powers are statutory, and the power to take possession in that matter was not a power to take ownership. In commenting upon that matter in Sutherland Shire Council v James Sugerman and Manning JJ in determining that estoppel could not be relied upon said at page 102:It may well be that if it had been a private individual who had entered into this contract, he would have been estopped from denying that a tenancy had been created, or at any rate he might have been held liable in an action for damages, but the plaintiff is a statutory body and not an actual person and can, therefore, only perform the acts which he is empowered to perform.”
The matter of whether a statutory function, which had been carried out inaccurately, could be held to estoppe further actions under the Act, was addressed by the High Court of Australia, in Federal Commissioner of Taxation v Wade [1951] 84 CLR 105. In that matter the Commissioner had described inaccurately the amount of taxation due. Kitto J said at page 117:
“No conduct on the part of the commissioner could operate as an estoppel against the operation of the Act.”
The doctrine of estoppel was also relied upon in the High Court in Brickworks Limited v The Council of the Shire of Warringah [1963] 108 CLR 568. In that matter the respondent had purportedly issued a document to the appellant, and later sought to restrain the extraction of clay, claiming that approval had not been given. In finding for the appellant, Windeyer J noted in that matter that the case did not “depend upon an estoppel, but on actual admissions of a fact.” (p.577) He further noted that “estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion. There is no doubt about the principle; but I doubt its application to this case.” (p. 577). The decision of Brickworks Limited v The Council of the Shire of Warringah can be distinguished in the current matter, as there is no denial by the Chief Executive that he issued the former valuation for a single parcel; but only that he subsequently further issued the two separate valuations once he became aware of the implications of section 34(2) in respect of separate occupation of the lands.
The nature of estoppel was also argued in the High Court in Chamberlain v Deputy Commissioner of Taxation [1987-88] 164 CLR 502. In that matter the respondent had sought to bring an action for payment of the balance of income tax due, beyond the amount determined by the Federal Court of Australia. The High Court held at page 508 that the doctrine of res judicata, or cause of action of estoppel, was held to apply in that matter, as the original action to recover the larger tax due, had been merged into the decision of the Federal Court, and a further independency to seek recovery of the amount beyond the decision of the Federal Court did not exist while the judgment stood. However, Chamberlain can be distinguished in the current matter, as there has been no judicial decision against the action of the Chief Executive in exercising his statutory responsibility under the Act.
And finally I note that estoppel cannot be invoked to negate the operations of the statutes of the Parliament. (see Considine v Citicorp Australia Limited [1981] 1 NSWLR 657 at 662; and also in Beesly v Hallwood Estates, Limited [1960] 2 All ER 314). In the matter of Beesly and Hallwood Estates, Limited the principle of a party relying upon a legal obligation of another was discussed. Buckley J said at page 324:“As I understand this part of the law, which has been described as promissory estoppel, it is that where one party is under an existing legal obligation to another, who has so acted as to lead the former party to believe that the latter will not enforce that obligation, or not enforce it to its full extent, or for the time being, intending the former party to act on that footing, and the former party has so acted, the latter party has so acted, the latter party may be restrained in equity from enforcing the obligation on any footing inconsistent with the belief so induced and may be so restrained notwithstanding that he has received no consideration for the modification of his rights. The doctrine may afford a defence against the enforcement or otherwise enforceable rights; it cannot create a cause of action. It cannot, in my judgment, be invoked to render enforceable a right which would otherwise be unenforceable, nor to negative the operation of the statute.”
On the basis of those precedents I find that there is no operation of estoppel which would prevent the Chief Executive from exercising his statutory responsibilities in this matter.
(ii) The nature of the land -
In respect of the physical improvements upon the subject land, I note the dispute between the parties whether access would be physically available from Lot 56 to Webster Road. However in the context of the valuation of that site, I believe that matter would have little impact upon the eventual unimproved value of that parcel, as there is clearly adequate access to Deception Bay Road from Lot 56.
The matter of the minor encroachments of the intervening fence line, or the roofs of the two ancillary buildings, are also, in my opinion, not matters of major concern in assessing the unimproved values of Lots 55 and 56. Any actions to redirect the intervening fence between Lots 55 and 56 could be resolved under the provisions of the Dividing Fences Act of 1953. Of more consequence is the matter of the supposed major encroachments of the carports on Lot 56, and the shed on Lot 55. I note Mr Theologidis’ statement that each of those buildings is appurtenant to the adjoining parcel. His only reason for concluding such arrangement was that he decided it to be so. However he provides no evidence to support such a situation, either in the registration of reciprocal easements or of any injuncture against the title to that effect.
While it is always the right of the owner to determine how to best use a property, subject to the standards required by Council, what is important in this matter is what would any potential prudent purchaser of the properties conclude, and how might that impact upon the unimproved values of the land.
In seeking to understand what might legally be inferred as a legitimate encumbrance upon the land, I turn to the legislation. I note also that an encumbrance against a property is seen as a claim on the property. It is Mr Theologidis’ argument that the owners of Lot 55 would have a claim against Lot 56 for the use of the carport; and the owner of Lot 56 would have a claim against Lot 55 for the use of the shed. Because of the location of the two ancillary buildings, in the absence of any proof of ownership to the contrary, both structures would be deemed to be owned “respectively” by the registered proprietors of Lots 55 and 56. In the current situation those parcels are both owned by the one person, Athina Theologidis.
The matter of encroachments was examined in WAH Bott v Brisbane City Council (1979) 6 QLCR 299, where the learned member considered the matter of whether compensation should be made allowing for an encroachment, and the likelihood of relief against an encroachment under sections 184, 185 and 186 of the Property Law Act of 1974. The learned member noted at page 308:“I find in the circumstances of this case that, in assessing the value of the land to the dispossessed owner, consideration should be given to the probability that a hypothetical prudent purchaser of the resumed land at the relevant date could have expected to have successfully made application to the Court for relief for the building encroachment in accordance with the provisions of sections 184, 185 and 186 of the Property Law Act 1974-1978, such application to have resulted in the conveyance to the dispossessed owner of 15 square metres of Crown land upon which the building encroaches.
I find that an allowance for the cost of conveyance of this land in the form of its market value is appropriate. There is no evidence in support of a contention that the encroachment was intentional, or arose from negligence.”
The provisions of section 184 of the Property Law Act provide for either party to seek relief against an encroachment; and section 185 establishes the process of the Court in determining the appropriate action to resolve disputes in respect of encroachments. Those provisions of course would prevail in the event of an owner being unable to arrange a suitable registration of an appropriate interest in the land upon which the encroachments exist. In the event of the Court having to determine the amount of compensation as a consequence of the encroachment, section 186 dictates that the compensation shall vary from a minimal amount being equal to the unimproved capital value of the land, up to three times such unimproved capital value.
In the matter of whether there are powers to resolve boundary disputes in respect of an adjustment to the boundaries to accommodate an encroachment, I find those powers formerly existed in The Encroachment of Buildings Act of 1955, which has now been repealed and replaced by the Property Law Act of 1974. Such a matter was considered by the Supreme Court of Queensland in Melden Homes No 2 Proprietary Limited Lands (1976-77) 35 LGRA 15.
In that matter Dunn J considered the matter of compensation, and found, among others, where an owner transfers land to the adjoining owner, that may make it unfair to order him to make further money payments; the amount of compensation does not merely depend upon disappointed hope; and any person whose lands suffer encroachment must take all reasonable steps to mitigate his loss.
In the current matter I believe there would be reasonable procedures for any owner of either Lots 55 or 56 to redress any problems that might arise in respect of any encroachments, if they are substantiated. The difficulty for the appellant in the current matter is to demonstrate that the reciprocal encroachments in fact do exist in law, and are not merely a matter of internal convenience for the current owner.(iii) The history of the valuations -
Having determined that the Chief Executive was correct in exercising his responsibilities under the Act, I now turn to the specific provisions of the legislation, and note that section 34 states:“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;
and
(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.”
The meaning of that section is clear, and it is mandatory as such as the Chief Executive is directed that the land “shall be valued separately”, if the buildings are obviously adapted to separate occupation. The evidence supplied demonstrates that the two buildings are capable of separate occupation, and may be lawfully held under separate ownership. That the dwelling upon Lot 56 has been treated as a single dwelling for the purposes of the Act, would, in my opinion, appear to be a very conservative description of that dwelling for that purpose. However the Chief Executive has not sought to apply a higher land use for Lot 56, and I make no further direction in that regard.
In respect of Mr Theologidis’ claim that the move to provide separate valuations under section 34(2) is in conflict with directions to be found in section 29(2), I note the wording of section 29(2) which states:“29(2) The chief executive may include in 1 valuation the several parcels of land referred to in under section 28(1)(k).”
I note also that section 28 relates to the alteration of a valuation, which is not to occur unless certain conditions occur. One of those exemptions is directed in section 28(1)(k) which states:
“28(1)(k) Unless –
(i)in the case of 2 or more parcels of adjoining land – those parcels become the subject of a common ownership during any such period, no part thereof being leased or let or all the parcels or being leased or let to 1 person; or
(ii)in the case of 2 or more parcels of land - those parcels could, if a valuation of all lands in the area was then taking place, be included pursuant to section 34 in 1 valuation.”
The intention of section 28(1)(k)(ii) is to provide a mechanism for the Chief Executive to allow a single valuation, where he is of the opinion that relevant factors dictate accordingly. That has no bearing upon the Chief Executive’s responsibility to exercise his discretion under section 34(2).
(iv) The comparison of sales -
That then brings me to the comparisons made of the unimproved values. Before moving to the sales evidence, I note that both Mr Theologidis and Mr Smith have considered the matter of relativity. On the evidence before me, I find nothing to discredit Mr Smith’s conclusions that the current unimproved values are in reasonable relativity with surrounding parcels.
If I then consider Mr Smith’s comparison with sales of vacant or near vacant lands, I find he has adopted the method generally preferred by the Courts when determining unimproved values. That was found in R and MM Barnwell v. Valuer General (1990-91) 13 QLCR 13 at 17; WM and TJ Fischer v. Valuer General (1983) 9 QLCR 44 at 46; and upheld by the Land Appeal Court in Hans and Else Grahn v. Valuer General [1992-93] 14 QLCR 327 at 330; and PH Clough v. Valuer General (1981-82) 8 QLCR 70 at 76.
In comparing his sales I find that Mr Smith has found all of his sales at applied unimproved values between $38,000 and $40,500, to be superior to the subject land. Mr Theologidis by comparison arrives at his separate estimate of approximately $21,500 by a simple mathematical deduction of 50% of the former single valuation. Mr Theologidis was unable to discredit Mr Smith’s comparisons, and supplies no other sales for comparison, basing his only comparison on an assumption that a sale sign related to specific parcels in Deception Bay Road. On that basis I accept Mr Smith’s determinations of Lot 55 ($32,000) and Lot 56 ($34,000).
If I then consider whether I should make any further adjustment to those unimproved values to accommodate any impact of the suggested encroachments, I note that an amount has been allowed for encroachments by this Court. Mr O’Rourke referred me to the decision of Elaine Hickox v. Chief Executive, Department of Lands (AV93-393), 8 April 1994, unreported. In that matter, the learned member (now President) allowed for an amount of $30,000 for the disability suffered by the land, including an amount of $7,500 for a minor encroachment by an adjoining building. The valuers for both parties advised that they would allow something for that encroachment, and in fact the disabilities had been recognised in a former objection on 31 March 1990.
However in the current matter there is no conclusive evidence that any encroachment actually exists, beyond Mr Theologidis’ claim that he chose to so arrange them, presumably for the convenience of the current occupants. There is also no evidence about the actual extent of impact of each supposed encroachment upon the two parcels.
For example the reciprocal nature of the supposed encroachments may well mean that they balance each other out, and the restriction placed upon Lot 55 by the presence of the workshop appurtenant to Lot 56, may be balanced in value by the additional access afforded to Lot 55 to Deception Bay Road. Likewise the restriction upon Lot 56 by the presence of the access path to Deception Bay Road, and the carports appurtenant to Lot 55, may be balanced out by the value of use of the shed on Lot 55. Without the benefit of being able to examine the easement documents, and not therefore being able to assess the effect upon the restricted titles, I am left to wonder at these outcomes. In the end it is the responsibility of the appellant to prove his case under section 45(4) of the Act, and in this issue he has not done so.
Summary:
Under section 33 of the Act it is established that any valuation determined by the Chief Executive is correct unless proven that there has been a significant error of fact, or a wrong principle applied. (Brisbane City Council v. Valuer General (1977-78) 140 CLR 41 at 56) In this matter that responsibility has not been discharged.
Conclusion:
Having considered the whole of the evidence I am not persuaded that the appellants have proved their case. The appeals are dismissed, and the unimproved values in respect of V98-930 in the sum of $34,000 and V98-931 in the sum of $32,000 are affirmed.
N G DIVETT
MEMBER
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