Tindall v Chief Executive, Department of Lands
[1996] QLC 77
•31 May 1996
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BRISBANE
31 MAY 1996
Re: AV95-195
An appeal against an unimproved valuation -
Valuation of Land Act 1944
Local Authority: Warwick Shire Council
H.D. & B.M. Tindall
v.
Chief Executive, Department of Lands
(Hearing at Warwick)
D E C I S I O N
The land subject of the disputed valuation is located on the north-western fringe of the City of Warwick. It is described as Lot 12 RP 210022, Parish of Warwick, containing 27.595 ha. The land is bounded on the south by the bitumen sealed Victoria Street, on the west by the gravel formed Wentworth Street and on the north by the surveyed Doy Street which is gravel and earth formed for part of its length. The irregular eastern boundary is formed by the Condamine River.
About one-third of the land is flood plain, the balance area rising to an elevated ridge. Aspect is easterly with the slope of the land. Very good urban and rural views are available from the elevated section.
The Department of Lands, through Mr A.B. Cowley, registered valuer, has assessed the unimproved value of the land in the amount of $50,000, as at 1 January 1995. The appellants’ estimate of value is $22,678. That estimate is based on a valuation of about $822 per ha.
The grounds of appeal are set out as follows:“Obnoxious smell from waste water from meat works.
Obnoxious smell from sewerage.
No bitumen road.
No mail milk or paper delivery.
Noise from dog pound - Dumped dogs & cats.
Blowing papers from rubbish tip. Rats from same area.
Double water rates.
Dust from many trucks carting cattle & hay.
No fire protection.”
Mr Tindall attended the hearing. His evidence was that the appellants bought the land about 16 years ago. At that time he saw the land as having future potential for urban subdivision. Although it was then in close proximity to a Council rubbish dump, his inquiries had indicated to him that the dump would be closed after a relatively short period. Rather than in that short period, it eventually closed in February 1995. The problems associated with the dump, including wind-blown litter, have now ceased. The closure of the dump was at a time which was relevant to the date of valuation in this matter. The sewerage treatment plant was also in existence nearby at the time of purchase. However, about 12 years ago, odour became a problem as a result of the pumping technique employed. The most serious problem of all comes from the stench associated with the irrigation of the river flats, immediately to the north of the site of the residence in Doy Street, with effluent from the nearby meatworks. That management practice also commenced after the appellants had purchased their land. Mr Tindall regards the abattoir operation as an important local industry and one of the largest employers of labour. Apart from the irrigation stench there are various problems associated with movement and working of cattle nearby, straying cattle and dust generated from the many trucks using the unsealed roads. Nevertheless, Mr Tindall treats the abattoir management as a good neighbour. Co-operation is usually received when requests are made to temporarily cease effluent irrigation when the stench becomes unbearable. However even when the irrigation has been stopped, the stench remains, particularly on still nights. He had recorded by calendar entry, some 57 days during a six-month period when the stench permeated inside the dwelling. There is a tennis Court in the house grounds used by guests for social gatherings and Mr Tindall produced a statement signed by a representative group during April 1995 testifying that when the irrigation sprays have been working, the smell from them is “a putrid, obnoxious odour”.
In Mr Tindall’s opinion, not only has any previous subdivisional potential been destroyed, the subject land has fallen into a unique noxious location because of the development and use of the lands in the immediate locality. He fails to understand how the land can be considered to have any value as a separate rural homesite, the basis on which it has consistently been valued by the Department. On a previous appeal to the Land Court (against a valuation as at 31 March, 1986) that basis of valuation was upheld, to his disbelief.
He has become frustrated by the perceived need to continually put his case with apparently varying results to objections to the valuations over the years. He made reference to the other disadvantages of the location, such as the nearby dog pound, stray animals, the cost of water rates, lack of mail and normal urban delivery services all of which reinforce his opinion that the unimproved value of the land at the relevant date was $822 per ha which is the level of value applied by the Department to rural lands in the immediate locality which are used “for purposes of farming”. He does not suggest that his limited grazing activities on the land at the relevant date constituted a business. In fact he rejects the suggestion that even if it was possible to use the land for the purposes of farming he should not, as a retiree, be told by others what he needs to do to obtain a valuation based on rural use.
Mr Tindall is primarily concerned with the impression that he is unable to get his message across to the decision makers to the effect that his home is so badly affected by its noxious dominated location, that the land should not be regarded as representing a desirable homesite. He referred to the market unpopularity of a rural residential subdivision to the north of the Condamine River and in close proximity to another type of meatworks effluent disposal scheme.
I have no doubt that the problems associated with the existing house site were made known to Mr Cowley during his valuation considerations. His approach was to consider the highest and best use of the total site as providing an acceptable location for a residence near Victoria Street. That had been the approach adopted by the Land Court in the decision handed down by Mr D.M. White on 26 August, 1988 (V87-869).
Mr Cowley agreed with Mr Tindall that the subject land could be considered as unique, at least in his opinion to the degree that it was difficult to make comparisons with other sites and in establishing evidence of value. His valuation which had been reduced from $56,000 on objection had been seen to be supported by two sales. One was of a 1 ha site adjoining the settlement ponds and gravity fed effluent irrigation system adjacent to the rural residential estate referred to by Mr Tindall. That site also suffered odour problems from a large piggery in the path of prevailing winds. It sold in July 1994 for an analysed unimproved value of $34,000 and was considered overall to be inferior to the subject land. The second sale was of a 25.73 ha parcel near the wool scour “further from town, with much inferior access, water and mail service not available, westerly aspect ordinary rural views, less problems with smell” and overall “slightly inferior to subject”. That site sold for $55,000, showing an analysed unimproved value of $46,300 in May 1994.
From a relativity perspective, Mr Cowley informed the Court that a 9.6 ha lot directly opposite the preferred homesite area on the subject land, and bounded by Victoria Street to the north, Wentworth Street to the west and the river to the east, had been valued in the amount of $63,000. That land had some sewerage odour but no effluent irrigation disability. A 2 ha site in Wentworth Street, directly to the south of the abovementioned block, had been valued in the amount of $51,000.
The dwelling on the subject land has existed, it seems, for many years and certainly well before the appellants’ purchase of the property, in its Doy Street location. The problems associated with that location have developed over time. The chief executive is required to find the unimproved value of the land under the provisions of the Valuation of Land Act. Section 3(1)(b) of the Act provides the meaning of unimproved value, in relation to improved land as -“The capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require, assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist.” (Underlining added).
In Toohey’s Ltd v. The Valuer-General (1925) AC 439 at p.443, Lord Dunedin said of similar legislation:
“... What the Act requires is really quite simple. Here is a plot of land; assume that there is nothing on it in the way of improvement; what would it fetch in the market? It will be observed that the value is not what has been sometimes designated by the expression ‘prairie value” the land must be taken as it exists at the date of valuation.”
Mr and Mrs Tindall live in the residence and suffer the unfortunate consequences. They are not particularly interested in the provisions of the Valuation of Land Act. They do not see it as being simple to assume that the improvements do not exist. Nevertheless, the legislature requires the notional unimproved assumption to be made. Regardless of Mr Tindall’s protestations as to the impracticality of the legislature, I accept that if the land was unimproved, its use could quite reasonably be seen as incorporating a dominant residential component, not at the now unsuitable location of the existing residence, but on a site fronting Victoria Street. Such a location would not necessarily be free from some of the sewerage odour, but would be sufficiently distant from the irrigation by effluent, for that not to be a problem. Access would be considerably superior to Doy Street and mail and delivery services could be provided. Extension of an internal water line from Wentworth Street would still be necessary. Fire protection, another problem at Doy Street, might be marginally improved because of the better access. A similar rate levy for a similar internal water service connection might be expected.
In terms of the legislature, the land is not used for the purposes of farming and it is not open for that concession, in terms of level of value, to be provided to the appellants. It would be clearly wrong to find that the land had no potential for acceptable residential use, even though the existing homesite is not now suitable. By way of corollary, if there had been no offensive smell considerations, but the house, for example, and for whatever reason, had been subject to inundation from the flooding of the Condamine River, it would not be correct for the unimproved value to be made on the basis that the whole of the land was unsuitable for residential use when the elevated area was capable of providing flood-free sites.
The sales evidence used by Mr Cowley may not be directly comparable, but if the subject land was vacant and unimproved, providing an acceptable Victoria Street homesite, then an unimproved valuation of $50,000 is seen to be both fair and reasonable and if anything, conservative on a relativity comparison with lands to the south of Victoria Street.
I see no answer under the Valuation of Land Act, to the appellants dilemma regarding the nature of the existing homesite. It seems that Mr Tindall has unsuccessfully explored the possibility of at least some rate relief through differential rating. It also seems that the appellants do not wish to explore the possibility of permanently restraining the effluent irrigation activities on adjoining land.
For the reasons given I am unable to find that the unimproved value of the land as assessed by the chief executive is wrong in principle or should be lowered. The appeal is dismissed accordingly.
RE WENCK
MEMBER OF THE LAND COURT
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