Tighe v Chief Executive, Department of Natural Resources

[1998] QLC 112

[1998] QLC 112

 

LAND COURT

BRISBANE

2 OCTOBER 1998

Re:     Appeal against Annual Valuation -
Valuation of Land Act 1944 -
  Valuation Roll No.:    13656
  Local Government:    BCC-Stephens
  (AV97-402)

Michael L and Margaret E Tighe

v.
Chief Executive, Department of Natural Resources

D E C I S I O N

BACKGROUND:

This matter relates to a property located at 122 Kadumba Street, Yeronga, and described as Lots 90 and 91 on RP 40172, Parish of Yeerongpilly.  The subject land (the subject) has an area of 809 m5, and is located on the southern side of Kadumba Street about 5 km radially south of the Brisbane Central District, and is handy to shops, schools and public transport.  Town water, power and sewerage are available, and Kadumba Street is bitumen sealed with concrete kerbing and channelling.  The subject is zoned as "Residential A" under the Town Planning Scheme of the City of Brisbane of 13 June 1987 and effective at the date of valuation of 1 October 1996.  The key issues are the nature of the land, relativity, comparison of sales, the impact of traffic and the method of valuation.  With agreement of the parties, an inspection of the subject, the locality and sales was undertaken.

The Chief Executive, Department of Natural Resources, issued a valuation of the subject at $86,000 on 17 March 1997.  Following an objection, the Chief Executive confirmed that figure on 9 September 1997.  The appellants have now appealed, claiming that the valuation should more properly be $83,000.

Mr ML Tighe appeared and gave evidence for the appellants.  Ms C Watt appeared for the respondent, calling evidence from Mr CB Edmonds, the departmental registered valuer responsible for determining the valuation.

THE EVIDENCE:
           (1)  The Nature of the Land
           The subject is a near rectangular parcel of width approximately 20 metres and depth 40 metres.  It is an elevated site, below road level and falls moderately (about 7 metres) from north-west to south-east.  The land has been partly excavated beneath the current dwelling, and partly filled towards the rear to provide for vehicle turning areas.  There are no views of the river to the south, which is obstructed by trees.  There is a retaining wall along the boundary with the adjoining property to the east (Breuer), and a recent rock wall has been constructed along the western boundary of the subject, which assists in diverting some surface water towards the rear boundary.
           The adjoining parcel to the east is small (Lot 92 - 505 m5) and lies in a natural watercourse.  It is agreed that it is one of the poorer parcels in the area.  The parcel to the west of the subject (Lot 786 on SL 5323) also has an area of 809 m5, but has lesser cross-fall (4.5 metres), as it is higher and near the top of the slope.  The appellants have spent about $2,500 in constructing the rock wall along the western boundary in an attempt to overcome some of the local flooding that occurs across the subject in heavy rains.  There is evidence of some erosion from the surface water discharge across the land.
           The gully south-east of the south-eastern corner of the subject is the location of a stormwater pipe which runs along the eastern side of the adjoining Lot 92.  A sewerage line also passes to the south of the subject, connecting into a sewer line passing southwards along the gully through Lot 2 on RP 68013 to the rear of the subject.
           (2)  The Impact of Traffic
           The parties agree that the subject is impacted by traffic noise and pollution, although there is some difference between the parties in respect of the severity of that pollution.  Mr Edmonds argues that most parcels in Brisbane have some form of air pollution, while Mr Tighe argues that pollution is excessive upon the subject.  Both agree that noise from the passing traffic, particularly the buses, impacts the site, and Mr Edmonds has allowed for that in his valuation.  Mr Tighe provides evidence of 134 buses passing the property each week, a matter not disputed by the respondent.
           Most of the noise intrusion relates to the revving of engines, usually related to the stopping at the nearby Zebra Crossing or bus stops.  There is a school and school chapel almost opposite the subject, which exacerbates the problems during mornings and afternoons when parents drop off and pick up children.  As Kadumba Street is a busy arterial road feeding the Yeronga district, there is considerable private car traffic also.  The irregular road alignment of Kadumba Street, with its poor line of sight for drivers and pedestrians, adds to the congestion and traffic impacts.  Additional charter buses for special events at the school add to the congestion.
           The area near the subject has been the scene of several traffic accidents over a period of years, possibly as a result of the inferior road alignment and the volume of traffic.  The appellants personally have suffered damage on five occasions to vehicles parked outside their property, and neighbours to the east have also had vehicles crash into their yards.  A "T" intersection almost opposite the subject causes problems, particularly in respect of headlights at night shining down into the subject.  A house two lots removed to the east (Lot 2 on RP 54012) was severely damaged by a vehicle colliding with the dwelling.  Based upon these occurrences, it would be fair to comment that the area suffers from more than normal traffic impacts.  Mr Edmonds acknowledges those impacts and advises that he has made allowance for that in his valuation of the subject and adjoining parcels. 
           Mr Tighe also advises that because of the school nearby there is an abnormal amount of litter left along the footpath, which requires regular effort to remove.  Mr Edmonds claims that the above matters have been previously discussed widely with the appellants at previous objections and appeals, and were well known to the respondent.  He was also well aware of the parking problems outside of the subject.
           (3)  Changes in the Valuation
           Mr Tighe has undertaken a comprehensive examination of departmental records provided to the Court under a subpoena of Mr Edmonds for the hearing.  In an attempt to expedite the hearing, the Court provided a limited number of copies of some records to assist the appellants document their case.  However, it was explained to Mr Tighe that it was not the responsibility of the Court to provide, or direct the respondent to provide, copies of departmental records.  Those are the responsibility of the separate parties, and are generally available on payment of an official government fee for service.
           In analysing the departmental records, Mr Tighe has provided a schedule of unimproved values at various dates of effect for Kadumba Street, Rome Street, Astrolat  Street, Grimes Street, Athol Street, Douglas Street, Violet Street, Lilly Avenue, Ellesmere Street, Dalton Street, Grounds Street and Instow Street, Yeronga.  Those streets provide access to all of the surrounding parcels in the locality of the subject.  (Exhibit 2/2).  Mr Tighe notes the unimproved values of all parcels in those streets for the valuations effective at June 1994, June 1995, June 1996 and June 1997.
           He argues that properties in Kadumba Street would appear to have been involved in a higher percentage of changes than those in the surrounding streets.  To demonstrate his concerns, he identifies certain properties which have changed during the current valuation (1 October 1996) as follows:

Street	Total Properties	Unchanged	Increased	Reduced	Changes
Kudumba	75	16	50	9	79%
Rome	46	36	3	7	22%
Astrolat	12	2	10	-	83%
Grimes	16	11	4	1	31%
Athol	11	3	8	-	73%
Douglas	13	-	13	-	100%
Violet	33	21	12	-	36%
Lilly	6	4	2	-	33%
Ellesmere	30	22	8	-	27%
Dalton	20	19	1	-	5%
Grounds	33	31	1	1	6%
Instow	21	8	11	2	62%

Now Mr Tighe does not argue that the changes in themselves represent any error in the valuations, but he concludes that such changes do, in fact, destroy the relativity between the parcels, and therefore amends the previous equity in respect of liability for contribution towards public costs.  He also concedes that there are other parcels in Kadumba Street which have increased by amounts in excess of the changes that occurred to the subject, which was increased from $82,000 (1 October 1995) to $86,000 (1 October 1996).  It was also noted that the subject had been reduced on objection in 1996 from $85,000 to $82,000 (1 October 1995), following an on-site inspection at that time.
           (4)  Relativity
           The key issue for the appellants is the matter of relativity and changes that have occurred to disturb the former relativities.  He argues that it is an important issue in exercising responsibilities under the Valuation of Land Act 1944 to maintain relativity, if possible. He draws support for his assertion that relativity is very important from previous decisions of the Courts and also from the intentions of the Queensland Parliament when the Bill for the current Act was introduced in 1944.
           Mr Tighe argues that equity in respect of liability for rates and land tax is at the heart of the purpose of the Act.  He concedes that he has not provided further alternative sales evidence to support his case, but relies upon an analysis of the relativities between the respondent's sales exchanged prior to the hearing.
           Ms Watt notes that it is departmental practice to value the subject by comparison with sales of vacant or lightly improved lands, in order to establish a value that is within 5% to 10% either side of the likely market price.  That tolerance is adopted in view of variations in the individual sale prices achieved, and the vagaries of the marketplace.  It is also departmental practice to seek to provide a conservative estimate of the unimproved value of all lands in line with directions to be found in Commissioner of Succession Duties (SA) v. Executor Trustee and Agency Co of SA Limited (1947) 74 CLR 358 at 374.
           The need for consistency in establishing unimproved values was argued by Mr Tighe who notes directions to be found in Barton and Elliot Pastoral Co v. Valuer-General (1957) 15 The Valuer 176.  In that matter Sheehy J, at the invitation of the parties, laid down principles to serve as a guide for future appeals.  While that decision was taken to appeal before the Full Court of Queensland, in The Valuer-General and Elliot 15 The Valuer 188, the principles outlined by Sheehy J were not disturbed.  The facts of that  matter were not relevant to the current matter, however, the need for an open and frank dialogue between the parties, and the benefits of an exchange of information, remain as important today as they were in 1955.
           Mr Tighe also draws support from the findings of Sheehy J at p.177:

"It is wrong that a blind general attack should be made on all valuations in a particular shire, but a general attack might clearly be justified, if it were felt for instance, that a wrong method of valuation has been applied over all the shire; or that the method applied in the shire resulted in non-conformity with valuation in other shires; or that the Valuer-General has applied valuations based upon general factors (e.g. prices for cattle) without examining the circumstances of each particular property; or that he has decided, in globo on a percentage increase on the last valuation; or that he had done something of a like nature indicating that he has not considered each property individually but has valued according to some general idea."

And again Sheehy J noted at p.186:

"It is the requirements of the Act, that the real value should be ascertained and this entails the necessary and equitable consequences that all values in Queensland should bear the correct relationship one to another in view of the objects of the Act i.e. to discover the basis of taxation for rates, land tax and the like."

While the directions of Sheehy J in respect of the correct relationship of each parcel in Queensland is fundamentally correct, how the Chief Executive effects that objective is now made more complex by the requirement to achieve that purpose for each parcel in the State on an annual basis.  As part of his methodology, the Chief Executive has determined administrative boundaries which reflect common market differentiation, or Sub-Market Areas (SMAS).
           By analysis of relevant sales to those SMAS, and assuming that relativities between parcels in those SMAS have been established reliably, the Chief Executive now uses a computerised mass appraisal technique to generate likely unimproved values within initially each SMA, and then within the wider administrative areas, or districts of the city area.  However, the computer process is merely a highly sophisticated tool for each valuer to undertake the increasingly demanded task of assessing the ever-growing number of parcels.
           Should the Chief Executive become aware that certain unimproved values may be inaccurate, he is empowered by the Act (s.28(1)(g) and s.29) to seek to correct any error in the valuation.  Mr Tighe concedes such a responsibility, but argues that in amending the unimproved values, the Chief Executive must also ensure that correct relativities are ensured.
           Mr Edmonds advises that, as a consequence of public disquiet in the locality, and following a series of objections and appeals, the Chief Executive determined that a review of unimproved values in the locality should be undertaken.  In mid-1996 Mr Edmonds was directed to examine six SMAS in the western part of the Division of Stephens.  A second valuer (Mr Wier) was directed to examine the eastern part of the Division of Stephens.  As a consequence of an initial review, a total of 1,350 properties were identified to be revalued manually, of which 750 were manually corrected.
           The manual valuations were undertaken personally by Mr Edmonds, who visited each parcel and inspected the land from the road frontage to confirm opinions developed from existing contour mapping and departmental records of previous conferences.  He concedes that his inspection of the subject was only from the street, but adds that when he fully inspected the site as part of the appeal process, his observations merely confirmed his earlier conclusion.  Mr Edmonds' reason for only inspecting each property from the street was to ensure a fair and equitable process for all of the parcels being reviewed, within a reasonable time frame.
           To ensure a consistent approach to the sales analysis, both Mr Wier and Mr Edmonds examined the same sales in the general locality and agreed on the relevant sales and what they reflected in market variations, as standard parcels for comparison purposes.
           The ranges adopted varied for a basic figure of 500 m5 to 600 m5 at $70,000 to $80,000; 600 m5 to 700 m5 at $80,000 to $90,000; 700 m5 to 800 m5 at $90,000 to $95,000; and above that was treated individually.  The two valuers then independently conducted their manual reviews, ignoring any previous relativities, so as to ensure independent values for each parcel, and a supportable new relativity base.  There was no reference taken to the former relativities.  The new values were then manually entered into the computer data base, and statistical checks undertaken to ensure no data entry errors had occurred.
           Mr Tighe argues that the current relativity between 124 Kadumba Street ($94,000) to the west of the subject, the subject ($86,000), and 118 Kadumba Street ($53,300) to the east does not allow correctly for the disabilities of the subject.  His analyses of the unimproved values (Exhibit 2/2) shows that 124 Kadumba Street increased by $1,000 from $93,000, the subject increased by $4,000 from $82,000, and 118 Kadumba Street increased by $500 from $53,000.
           It was also noted that 118 Kadumba Street had previously been reduced From$58,000 to $53,000 on objection in 1996, and was initially determined by Mr Edmonds in the current review at $58,000, then reduced by the Chief Executive to $55,000, and subsequently reduced prior to the proposed Court hearing to $53,500 under s.68.  There were some negotiations between Mr Tighe and the respondent, but those were on a without prejudice basis and are not a matter for this Court.
           In respect of the powers of the Chief Executive to amend unimproved values under s.28(1)(g), Mr Tighe believes that the respondent should restrict his activities only to those which were the subject of objection processes, and he should not use those objections as an excuse to revalue the entire locality, as s.33 of the Act states that unimproved values are deemed to be correct otherwise.
           (5)  Comparison of Sales
           In support of his valuation Mr Edmonds provided four sales that he saw as most relevant to the subject, from the general sales he adopted for the area to be manually examined.  Mr Tighe initially provided no sales of his own, but relied upon comparisons of relativity of Mr Edmonds' sales.

·   Sale 1 - (163 Park Road, Yeerongpilly - Lot 55 on RP 37656).  This is a cleared vacant lot of area 405 m5, zoned "Residential BR3" and located about 1.2 km south-east of the subject.  The sale is slightly sloping with an easterly aspect and limited suburban views.  It is comparable to the subject in respect of locality, access and services, but inferior in size.

The sale sold in November 1995 for $84,000 which, after allowing for improvements, was analysed at$83,000, and applied at $80,000.

·   Sale 2 - (16 Luya Street, Fairfield - Lot 1 on RP 881201).  This is a vacant parcel of area 405 m5, and is zoned "Residential A".  The sale is located about 0.9 km north-west of the subject, and is a sloping parcel from Luya Street with a westerly aspect and limited residential views.  The sale is inferior to the subject, but is in a similar locality.

The sale sold in January 1995 for $67,500 which, after allowing for improvements, was analysed to $66,500, and applied at $62,000.

·   Sale 3 - (163 Park Road, Yeerongpilly - Lot 55 on RP 37656).  This is the same property as Sale 1, and resold in November 1996 for $92,500, analysed at $91,500, and applied at $80,000.

·   Sale 4 - (32 Oriel Road, Yeronga - Lot 229 on RP 37194).  This is a vacant parcel of area 478 m5 and zoned as "Residential A".  The sale is located about 1.8 km north-east of the subject, and is a sloping parcel with north-easterly/south-westerly aspect, and limited residential views.  It has frontage to both Oraia and Oriel Roads.  The sale is comparable, similarly located, but smaller in area.

The sale sold in April 1997 for $91,000 which, after allowing for improvements, was analysed at $89,000, and applied at $76,000.

While Mr Tighe did not agree that the selected sales were ideal, he concedes that they were comparable.  He was personally conversant with the three sales and had  compared them with the subject under 23 criteria, some of which have been discussed in (2) above.  Mr Edmonds agrees with the appellants' comparisons in respect of noise, litter, disturbance at night, privacy, parking congestion, safety, obstruction to the views of drivers and pedestrians, erosion, breezes, cold winds, river views, flooding, public transport and outdoor leisure areas.  Mr  Edmonds differed about air pollution, zoning impacts and access to shopping.

           Air pollution was discussed in (2) above, and access to shopping centres was seen by Mr Edmonds as being more related to driving time rather than walking distance, although Mr Tighe argues many elderly residents in the locality do not drive a motor vehicle.  However, they do have public transport (buses) very handy.  In the matter of zoning of Sale 1 as "Residential BR3", Mr Edmonds notes that, while that zoning provides a higher use of the sale, its limited size restricts it from being used for that purpose.  In his valuation Mr Edmonds has treated Sale 1 as "Residential A" and only as a home site.
           In respect of Sales 3 and 4, Mr Edmonds notes that those sales had occurred after the date of valuation (1 October 1997), and they were not relied upon, but provided merely for the information of the Court.
           Mr Edmonds also provided some details of a further 15 sales in the locality which he had considered in his exercise as also appropriate.  (Exhibit 3/4).  While one of those additional sales was of a similar sized parcel as the subject, it had problems with an easement and a triangular shape.  Its sale price at $105,000 would, in Mr Edmonds' opinion, have provided an unfair comparison with the subject, so he rejected its use.
           (6)  The Method of Valuation
           Another matter of considerable concern to Mr Tighe is the method by which the respondent undertakes the valuations.  Mr Tighe personally believes that the current computerised valuation system is not consistent with the intentions of the Act to ensure every parcel is accorded its appropriate value.  He argues that it was the intentions of Parliament that every parcel would be assessed using the "same formula, statutory formula, same device in the Act" (Transcript 119).  He argues that when introducing the Second Reading Speech for the new Bill, the Minister at the time emphasised that, "It is our intention to introduce a uniform system of assessing the unimproved value of land".  (Hansard 4 September 1944 p.307)
           In seeking to further clarify the matter of uniformity, a Member, Mr Wanstall (later Wanstall CJ) noted:

"I agree with the principle that there should be a Valuer-General in the State of Queensland whose functions it will be to achieve uniformity in land valuations throughout the State.  I do not think any member of the Opposition will disagree with that principle.  As I see the object and intentions of such a provision, it is to set up a system that will achieve relativity in the values of land throughout the State.  It is not strictly correct to speak of uniform values because land must vary.  The real point in which there is uniformity is in their relation one with another and that relativity is achieved by means of the application of a uniform set of principles for determining the value of land.  I see in it the necessity for establishing a formula that, when applied to the assessment of the value of land, will give a result as universal and uniform as the result obtained from applying the yardstick to the measurement of length."  (Hansard 19 September 1944, p.490).

It is in interpreting those words that Mr Tighe finds fault with the current process. 
DECISION:

(i)        The Comparison of Sales
           I turn first to the sales adopted by the respondent and note that he has sought comparisons with sales of vacant or lightly improved parcels in accordance with the principle for determining unimproved value favoured by the Courts.  (AC & AA Ussher v. The Valuer-General (1986-87) 11 QLCR 169 at 176; WM & TJ Fischer v. The Valuer-General (1983) 9 QLCR 44 at 46; PH Clough v. The Valuer-General (1981-82) 8 QLCR 70 at 76; and NR and PG Tow v. The Valuer-General (1978) 5 QLCR 378).
           I note that Mr Tighe has not seriously discredited the respondent's comparisons, although I do note that each of the sales chosen was considerably smaller in area than the subject.  However, on the basis that Mr Edmonds analysed a wider range of comparable sales before establishing his basic sales of standard parcels, I find no reason not to accept his comparison of the subject.  Based upon those sales, there is nothing to challenge his assessment of the subject of $86,000.
           In respect of Mr Edmonds' comparison of his Sale 1 on the premise that it is to be treated as for "Residential A" purposes, I note that that sale has an area less than the minimum area of 800 m5 described for "Residential BR3" purposes (Brisbane Town Plan Section 7.3.1).  For the purposes of this matter, I accept his comparison of Sale 1 as a "Residential A" parcel.
           In the matter of the dates of his Sales 3 and 4, I note that both of those sales occurred after the date of valuation (1 October 1996), but Sale 3 occurred prior to the date of issue of the valuation on 17 March 1997.  (KP and RD Weisenberger v. The Valuer-General (1978) 5 QLCR 125; and also RG McMurray v. The Valuer-General (1983) 9 QLCR 35 at 36). On that basis, Mr Edmonds would be consistent with the Act in relying upon the later resale at $92,500. That he has not done so supports his contention that his valuation is conservative.

(ii)       The Nature of the Land
           There is no real difference between the parties on this matter, except perhaps Mr Edmonds does not place the same impact on erosion from surface water as the appellants.  There is no doubt that the new rock wall along the western boundary has directed some surface water towards the rear.  Also there is about a 2 metre fall from the retaining wall to the gully near the south-eastern corner of the subject.  On balance, I note that there could be some further consideration in the final assessment of the value for those matters.

(iii)      The Impact of Traffic
           I would agree with both parties that there is a considerable impact of various types from passing traffic, particularly the buses.  Mr Edmonds has noted that, and made allowance in the valuation.  He notes, for instance, that the location of the subject near the bend in Kadumba Street makes entering and exiting the property more hazardous than further to the west along Kadumba Street.
           For  instance, 142 Kadumba Street is a parcel of area 809 m5 but has an unimproved value of $105,000.  To balance those impacts is the excellent bus service that stops almost right outside the subject (134 buses each week).  On balance I see no reason to amend the value for that purpose.

(iv)      Changes in the Valuation
           I am aware that Mr Tighe provides a tireless monitoring of movements in the unimproved values in his near locality.  I understand that he feels that Kadumba Street has been subjected to considerably greater variations than surrounding areas.  However, the statistics he provides gave no real support for that conclusion, or to his perception that the subject land was being specifically focussed upon.  If there has been a greater number of changes to the unimproved value of the subject, and the adjoining parcel at 118 Kadumba Street, then that may well be because of the level of objections and appeals generated by the appellants themselves.
           Based upon the history of the subject, I conclude that the respondent has sought to discuss and negotiate with the appellants over a period of time.  That such an interaction process finally has to come to this Court is unfortunate, but rests squarely upon different understandings of the situation.

(v)       Relativity
           At the heart of this matter is really the matter of relativities between all parcels in the locality, and indeed, throughout Queensland.  The principles established by Sheehy J in Barton and Elliot Pastoral Co. (supra) are sound and relevant within the context of the modern era.  However, the processes of annual valuation now places constraints upon the system not envisaged in 1955.
           In seeking guidance upon the weighting to be placed upon the maintenance of former relativities, I am aware that the appellants are familiar with the general directions to be found in R and MM Barnwell v. The Valuer-General (1989) 13 QLCR13 at 16; WM and TJ Fischer v. The Valuer-General (1983) 9 QLCR 44 at 46; and H and E Grahn v. The Valuer-General (1992-93) 14 QLCR 327. These were all further reported in BG and AK Wilson v. Chief Executive, Department of Lands [1994-95] 15 QLCR 63 at 72; and LR and MM Bignell v. Chief Executive, Department of Lands (AV92-65), 4 March 1996, unreported. That decision of the Land Appeal Court followed an application for a re-hearing by the Land Appeal Court [1994-95] 15 QLCR 528.

In the Bignell matter both parties had argued that relativity should be used to determine the unimproved value of the subject land in that matter.  However, the problem was which other blocks should be considered for comparisons.  The appellants argued that as s.33 of the Act stipulates that the unimproved values are to be deemed correct, then only the relativity between them need be considered.

The appellants chose three nearby lots, while the respondent chose the adjacent parcel to the south, the adjacent parcel to the north, and the parcel one removed further to the north, all of which had recently been established by the Land Court or the Land Appeal Court.  By adopting those two strategies, the parties ended up with values for the subject at $130,000 (respondent) and $95,000 (appellants).

Counsel for the appellants argued that the decision of the Court in Gibson v. Chief Executive, Department of Lands (V92-64), 9 June 1995, unreported; Coote v. The Valuer-General (AV91-859), 26 June 1992, unreported; and Perlowski and Gregan v. The Valuer-General (V91-1073), 4 September 1992, unreported, should be disregarded as the evidence in those matters was different to the Bignell case.  In the end, the Land Appeal Court found at p.11:

"The question before this Court is 'the correct valuation of the subject land, not the correct valuation of the area'."

The inference I draw from that dilemma confronting the Land Appeal Court is that there was no consistency in the unimproved values of the selected parcels for each matter before the respective Courts.  The Land Appeal Court concluded at p.20:

"          This is a case which can be described as one in which the use of the principle of the relativity of similar neighbouring blocks should not be preferred to the exclusion of relevant (if not ideal) sales evidence.  It is the case in which it is preferable to correct an inaccuracy with respect to the subject land rather than to make an inaccurate assessment in order to secure uniform error.  (R and MM Barnwell v. The Valuer-General (1989) 13 QLCR 13 at 16-17, H and E Grahn v. The Valuer-General (1992) 14 QLCR 327 at 328-9). The consequences, if any, of this judgment for the owners of neighbouring blocks is a matter for the respondent to address."

The evidence of Mr Edmonds in the current matter is that, probably as a result of the comment from the Land Appeal Court and other public disquiet, that the respondent chose to make a fresh evaluation of certain parcels, with consequential amendments to former relativities.  In the light of that history, I see little support for Mr Tighe's claim that former relativities should be maintained.  That it took the respondent some years to correct the anomalies is unfortunate.

Certainly there is some substance in Mr Tighe's observations of the evidence given to the Land Appeal Court in DE Gibson v. Chief Executive, Department of Lands (V92-64) supra, where original records of the Chief Executive had been inadvertently destroyed.  Certainly that could have contributed to delays in amending the valuations over a wider area.  However, in the current matter there is no evidence of any lack of original records, and the respondent has indeed now sought to rectify the values by a fresh manual determination.

In respect of being able to rely upon surrounding relativities, I note the findings in TF and SA Shepherdson v. The Valuer-General (1992-93) 14 QLCR 83, where the learned Member said at p. 87:

"          Applying to this case the principles of law summarised above, it is desirable that valuations of comparable lands should bear proper relativity.  The appellants are entitled to rely on the valuations of properties in the vicinity of the subject land as being correct.  … Although the comparable sales support a valuation in the order of that assigned to the subject land, it is appropriate that attention be given to obtaining some relativity to blocks in the same category of land. "

In that matter the presumption of correctness of the valuations, in the ordinary course of events, was seen to be a reasonable entitlement of the appellants under s.123(7) (now s.33) of the Act.  However, in that matter the Member noted at p.85:

" In the present case there was no evidence that the Valuer-General has taken steps to alter the valuation of the subject land or other blocks in its vicinity (other than Scott's land), although there was a suggestion that relativity may be altered at the next revaluation of the Area."

In the current matter I believe Shepherdson can be distinguished as the Chief Executive has now moved to alter the relativities after a major review of the locality under s.28(1)(g) of the Act which states:

"28.(1)  No alteration shall be made in the valuation of any parcel of land during the period during which any general valuation or annual valuation relating to the area in question is in force or, in the case of a general valuation or any annual valuation which has not come into force, during the period between the issuing of notice of valuation to the owner pursuant to Part 6 or as the case may be, the making available of particulars of the annual valuation pursuant to Part 4 and the date of the valuation coming into force - (subsequently amended 1997)

(g)unless, in the opinion of the chief executive, circumstances affecting the valuation of the land are such as to render an alteration necessary or desirable for preserving or attaining uniformity in values between that valuation and subsisting valuations of other comparable parcels of land;"

The intentions of the Act are for the Chief Executive to "preserve" or "attain uniformity" in values.  Because of the known inconsistencies in values in the locality, the Chief Executive set out to "attain" fresh uniformity in the values, and the normal course of events would appear to have been disturbed.
           There has been no suggestion that the Chief Executive has acted in this manner on a wrong principle, made a serious error of fact, or adopted an erroneous method of valuation, and the value of the subject, as determined, has not been challenged on that basis.  (Brisbane City Council v. The Valuer-General (1978) 140 CLR 41, at 56-57).
           I understand Mr Tighe feels that previous appeals to this Court by himself and on behalf of others, failed principally because of the application of the principle followed in Barnwell v. The Valuer-General 13 QLCR 13. However, it must be accepted that a key issue in this matter also follows the principles established in Barnwell where the Land Appeal Court said at p.16:

"          We are conscious that it is desirable that valuations made for the purposes of the Valuation of Land Act of comparable lands should bear proper relativity, one to the other, if the valuations are soundly based.  It is, however, untenable to adopt a value for one parcel on relativity with another which has no sound basis."

The history of this matter is that the former unimproved values were seen to have lacked true relativity, and the Chief Executive has now sought to rectify that situation.

(vi)      The Method of Valuation
           Finally I move to another concern of Mr Tighe which is the current method of valuing the lands of Queensland.  It is Mr Tighe's contention that the current electronic-assisted method of determining the annual valuations ignores the intentions of Parliament in several respects.  In seeking guidance on the principle of using extrinsic material to clarify the intentions of the legislation, Mr Tighe has relied upon the Acts Interpretation Act 1954, and particularly s.14B of that Act which states:

"14B(1)  Subject to subsection (2), in the interpretation of a provision of an Act, consideration must be given to extrinsic material capable of assisting in the interpretation -

(a) if the provision is ambiguous or obscure - to provide an interpretation of it; or

(b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result; or

(c) in any other case - to confirm the interpretation conveyed by the ordinary meaning of the provision."

The regard to be given to extrinsic material is covered in s.14B(2), and the types of extrinsic material is defined in s.14B(3).  A comprehensive discussion on the use of extrinsic material was covered in RW Mathers and RG Gibson v. The Valuer-General [1992-93] 14 QLCR 225 at 249. In that matter the learned Member considered the impact of heritage listings upon the valuation of a parcel of land under the Valuation of Land Act, and whether retrospectivity did apply in respect of its heritage listing, and those findings bear no relationship to the current matter. 

The use of extrinsic material was also examined by the Land Appeal Court in DRV Cox v. The Commissioner of Water Resources [1992-93] 14 QLCR 304, at 314, where the powers of the Land Appeal Court and the Land Court were examined in respect of the discovery of documents; and also in JR and DM Stubberfield v. The Valuer-General [1992-93] 14 QLCR 490, at 501; and further at 69 LGRA 133 [1989], where the Full Court of Queensland held that the Valuer-General should not ignore the effect upon a valuation of an advertised new planning proposal.

While it is recognised that the Court has to be guided in its procedures by equity, good conscience and substantial merits of the case (Land Act 1962 s.41(5)(a)), it has also been established that the Court does not have the powers of an investigatory tribunal.  (JL and I Qualischefski and Others v. The Valuer-General (1979) 6 QLCR 167 at 172; G Franklin and Others v. The Valuer-General (1978) 5 QLCR 181 at 185; and BT Dillon v. The Valuer-General (1986-87) 11 QLCR 231, where the Land Appeal Court said at p.233:

"          The Legislation has not given this Court any investigatory powers under the Valuation of Land Act.  If the appellant's case is not strong enough in its own right to establish the values contended for or to disprove the Valuer-General's value, the Court is not empowered of its own volition to probe the fairness or correctness of the Valuer-General's values and by this means arrive at its own estimate of value."

While Mr Tighe may believe that the current system may need the benefit of an independent review of the process, that is not a matter for this Court to consider.  While previous decisions of this Court have identified defects in the Valuation of Land Act (Indooroopilly Land Owners v. The Valuer-General (1952-53) 24 CLLR 70 at 72), it is not the role of this Court to seek to direct the Government of the day.  That the desirability of seeking to consult land owners in respect of a valuation was proposed by the Court at that time, was a matter that flowed from the evidence supplied.  In the current matter there was no evidence to suggest that due processes did not proceed, or that the current system is not working, even though the appellants may not agree with the outcomes.
           While Mr Tighe notes that comments in a letter from the Minister of 12 March 1992 in respect of relativities in the areas of Balmoral and Norman Park were misleading and not representative of the facts, his reference to a decision in Caskey v. Chief Executive, Department of Lands (AV910853), 26 June 1992, unreported, was not quantified.  In seeking to challenge the current method of valuation by the Chief Executive, Mr Tighe draws comfort from the findings of Fenton Nominees Pty Ltd v. The Valuer-General (1981-82) 47 LGRA 71, where Wells J said at p.76:

"          In my opinion, it is wrong, in the light of the foregoing analysis, to regard the valuation by the Valuer-General of a parcel of land as an act in law that affects only the owner and those directly interested in the land; each valuation forms part of a closely integrated and interdependent series, or group, of valuations of all parcels of land within the local government area in which the subject land is situated.  It would be impossible exhaustively to tabulate all the implications of varying material (to follow the language of the draftsman) the value assigned to a given parcel of land separately valued under the Act.  It may safely be affirmed that every valuation represents, not just a valuation in which alone the owner has an interest (because an impost may be exacted upon him that is calculated by reference to its value), but an important act in law and act of government that, rather like the entries in the Doomsday Book compiled in the reign of William the Conqueror, contributes to an authoritative census and review of land, land ownership, and land values, throughout those areas of the State that have the benefit of local government, and contents of which is continuously relied on by Government, at State and local government levels, when imposing and assessing taxes and other imposts.  A variation of even one valuation is likely, therefore, to affect many people."

That matter was taken on appeal to the Full Court of South Australia (47 LGRA 83), and finally to the High Court of Australia (47 LGRA 95). An analysis of those decisions was examined in some detail by the President of this Court in Liat Nominees Pty Ltd v. Chief Executive, Department of Lands, 17 December 1996, unreported at p.8.  The facts of that matter bear no relationship to the current matter.  However, the statements of Wells J in respect of the impinging nature of all parcels in a locality, and the statutory responsibility of the Chief Executive to ensure his duties are discharged "with a keen awareness of the weight of his responsibilities and of the implications of every determination of value under the Act" (Fenton p.76), continue to have substance.
           While Mr Tighe has a deep concern that the Chief Executive has discharged his responsibilities in a manner something less than what Mr Tighe would expect, there is no evidence to justify such claim.  For Mr Tighe to draw unsubstantiated inferences of such behaviour from the "Report of a Commission of Inquiry pursuant to Orders in Council" (1987-89, p.6), does little for the credibility of his argument in this matter.  I have nothing before me to conclude otherwise than that Mr Edmonds undertook his responsibilities in a frank and independent manner, and that the unimproved value that he has determined for the subject is entirely the result of his professional opinion.

SUMMARY:
           In summarising the facts of this matter, I believe that the determination of the Chief Executive has not been seriously challenged.  The unimproved value adopted by the respondent represents a true reflection of its relative unimproved value.  I accept Ms Watt's comment that, because of the possible tolerance that may be expected in the reliability of the valuations, the valuation of the "land at $86,000 then might be because the sale value of the land might be $88,000 or $84,000 or something like that, that is a margin to allow for variations in the sales evidence"  (Transcript p.34).
           From the evidence of Mr Edmonds, the respondent had some negotiations with Mr Tighe in a without prejudice conference, presumably in an attempt to settle the matter.  That they were unable to finalise the matter apparently was a reflection of the entrenched nature of the parties.  I note that Mrs Breuer (118 Kadumba Street) was able to negotiate a reduction to $53,500.
           If I compare the subject with 124 Kadumba Street to the west ($94,000), and 118 Kadumba Street to the east ($53,500), I believe the current valuation at $86,000 would appear correct.  Perhaps in exercising his decision, Mr Edmonds may have been inclined to reduce the figure slightly to allow for the impact of erosion and surface water.  However, it is not for this Court to usurp the role of the respondent.  It is also the responsibility of the appellant to prove his case fully under s.33, and s.45(4) of the Act. 
CONCLUSION:
           Having considered the evidence, I am not persuaded that the appellants have proved their case.  The appeal is dismissed and the unimproved value of Lots 90 and 91 on RP 40172 at $86,000 as determined by the Chief Executive, Department of Natural Resources, is affirmed.

NG DIVETT
MEMBER OF THE LAND COURT