TONKIN and VALUER GENERAL
[2010] WASAT 21
•16 FEBRUARY 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: VALUATION OF LAND ACT 1978 (WA)
CITATION: TONKIN and VALUER GENERAL [2010] WASAT 21
MEMBER: MR P McNAB (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 16 FEBRUARY 2010
FILE NO/S: DR 333 of 2009
BETWEEN: ANGELA TONKIN
Applicant
AND
VALUER GENERAL
Respondent
Catchwords:
Valuation of land - Rural land - Unimproved value - Small farm holding - General challenges to methodology, assumptions and data used by the Valuer General - No expert evidence called in rebuttal - Alleged anomalous or unjustified increase in land values from previous years - Alleged 'discrimination' - Applicant raising extraneous matters of levels of expenditure in relation to the provision of government services to her - Direct comparison of comparable sales - 'Valuer's art' - Coordination of land values - Tribunal satisfied that law and practice of land valuation followed - Tribunal accepted expert evidence of valuers - Question of costs raised by Tribunal
Legislation:
Shire of Beverley Town Planning Scheme No 2
Valuation of Land Act 1978 (WA), s 32(3), s 33
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr J Clark (Representative)
Solicitors:
Applicant: Self-represented
Respondent: Valuer General's Office
Case(s) referred to in decision(s):
Hamilton and Valuer General [2010] WASAT 5
Julians Lodge PL v Commissioner of State Revenue [2001] VCAT 1945
Lake Karrinyup Country Club Inc v Valuer-General (unreported, WASC, Library No. 960515, 13 September 1996)
Robertson and Valuer General [2007] WASAT 213
Rowles and Valuer General [2005] WASAT 325
Spanjich and Valuer General [2009] WASAT 204
Weld Club Trustees and Valuer General [2007] WASAT 256
Wines and The Valuer General [2005] WASAT 263
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant, Ms Angela Tonkin, sought a review of a decision of the respondent, the Valuer General, to determine the unimproved value of a small farmholding that she owned in the Shire of Beverley, of some 24 hectares, as $182,000 on the relevant date fixed by law, namely 1 August 2007.
Ms Tonkin did not call any expert evidence in reply to that tendered by the Valuer General. Nor did she appear to take issue with the base data of comparative sales or coordinated values as to other properties in the vicinity, as was supplied by the Valuer General. She did take issue, in a general way, with some aspects of the methodology, assumptions and the interpretation of data used or undertaken by the Valuer General.
However, Ms Tonkin's real concern lay with the idea that she was being 'discriminated' against because of the increase in the value of land during the relevant period, particularly having regard to the allegedly poor level of services that she received from government. The Tribunal said that Ms Tonkin had focused on 'perceived injustices that she [thought] flow[ed] from the alleged overvaluing of her land as it relate[d] to the level of services that the State provide[d] to her and that she [was] obliged to contribute to, based upon that valuation'.
Such matters were, of course, outside either the jurisdiction or control of both the Valuer General and the Tribunal.
The Tribunal dismissed Ms Tonkin's application. The Tribunal found that there was 'an abundance of evidence to support a finding by the Tribunal that not only was a relevant, standard process of valuation followed, but that there existed sufficient valuation data upon which an expert opinion could be expressed'.
The Tribunal reserved for further consideration in a future case whether a costs order should be made in circumstances where an applicant, such as appeared to be the case here, persistently engaged 'in the agitation of issues patently outside of the control of either the agency or the Tribunal'. The Tribunal said:
As arguably occurred here, the cost to the taxpayer in such circumstances will be considerable, and seems both disproportionate and unjustified, having regard to the applicant's real concerns. Moreover, attention to other, perhaps more deserving cases, will be postponed unnecessarily while the review takes place.
The Valuer General's determination as to unimproved value was accordingly affirmed.
Introduction
These proceedings are a review under s 33 of the Valuation of Land Act 1978 (WA) (VL Act) of the Valuer General's determination of the 'unimproved value' (UV) as at 1 August 2007 of Lot 909 on deposited plan 247114 (subject land), being land owned by Angela Jane Tonkin (applicant).
The relevant, formal date of valuation under review is 1 August 2007. The Valuer General (respondent) determined the UV of the subject land at that date as $182,000. The effective or practical date of valuation is 30 June 2008 which forms the basis of the rating (or financial) year 20082009.
On 26 September 2008, the applicant formally objected to the assessed UV of the subject land. On 20 July 2009, a delegate of the Valuer General disallowed that objection. The applicant requested a review in this Tribunal by letter dated 13 August 2009.
Assessment history
In the respondent's records, the subject land's UV on 1 July 2006 is shown as $85,000; on 1 July 2007 it is shown as $99,000; and its UV, a year later, is shown as $182,000 (that is, the rating year under review).
Consequently, the applicant has had, speaking generally, a proportionate, and relatively steep, increase in her rates. This result appears to be a large part of the motivation of the applicant in seeking a review (see further below).
Subject land
The subject land is Lot 909 on deposited plan 247114, which is located on the YorkWilliams Road, in the Shire of Beverley, and is all of the land comprised in Certificate of Title Volume 2210 Folio 766.
Lot 909 is just under 24 hectares in size, and is located east of, but fairly close to the YorkWilliams Road (approximately 0.5 to 1 kilometres away). The subject land is 14 kilometres southwest of the Beverley townsite.
The respondent's internal records describe the land as 'farming land' with 'easement access' (that is, indirect access from a road reserve secured by a registered Right of Carriageway) and with 'river frontage' (that is, to the Talbot Brook). The respondent submits that:
The property could best be described as triangular in shape, with the hypotenuse defined by an irregular shaped line which is the boundary of the Talbot Brook reserve. The other two boundaries are straight lines at right angles to each other.
The land slopes gently in a north westerly direction from its south western corner towards Talbot Brook - there is a relatively steeper dropoff close to the Brook.
The land is fully cleared and developed except for some remnant native vegetation along the boundary with Talbot [B]rook. There is an erosion gully in the [N]orth [W]est part of the lot running from the western boundary into Talbot [B]rook which is considered a soil management issue which is within the capacity of the owner to address.
Power is generated on site, [a] Telstra service [not, apparently, a mobile service] is connected, [and] scheme water is not available.
The zoning of the land is 'Farming' under the Shire of Beverley Town Planning Scheme No 2. The respondent submits that:
The primary land use permitted under this zoning is 'rural pursuit' and … the current use is fully complying. It is also within the District Rural Strategy Policy Area Be2 and similarly [that current use] is fully complying[.]
The property was last sold in May 2005 for $110,000.
None of these matters, apart from the affect of the 'soil management issue' and the extent of the 'rural pursuit', appear to be disputed by the applicant; they are discussed further below.
The statutory framework
Section 32(3) of the VL Act provides that:
(3)An objection to a valuation of land may be made on the ground that the valuation is not fair or is unjust, inequitable or incorrect, whether by itself or in comparison with other valuations in force under this Act.
In Robertson and Valuer General [2007] WASAT 213 (Robertson), at [22], it was noted that:
Section 33 of the VL Act provides that any person who is dissatisfied with the decision of the Valuer General on an objection may, by notice, require the Valuer General to 'refer the valuation to the State Administrative Tribunal for a review'. Section 36A(1) states that, upon a review by the Tribunal on a referral under s 33, the Tribunal may consider grounds in addition to those stated in the notice of objection and reasons in addition to those previously given by the Valuer General. Section 27(1) of the State Administrative Tribunal Act 2004 (WA) states as follows:
'The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decisionmaker but may involve the consideration of new material whether or not it existed at the time the decision was made.'
The general statutory context of reviews of this nature is set out in cases such as Robertson at [10] [15] (there dealing with rural land in the Perth Metropolitan area), and Wines and The Valuer General [2005] WASAT 263 (Wines) at [15] [19] (also dealing with rural land, but in a 'townsite'). It is therefore unnecessary to reproduce all of that background material here, except to set out some key definitions found in the VL Act, relevant to this review, which are as follows:
'Unimproved value' means 'the capital amount that an estate in fee simple in the land not including improvements might reasonably be expected to realize upon sale';
'Improvements' in relation to land 'means the value of all works actually effected to land, whether above or below the surface, and includes fixtures, but does not include ... machinery, whether fixed to the land or not'; and
'Land' means 'lands, tenements and hereditaments, and any improvements to land, and includes any interest in land'.
Respondent's methodology
In Spanjich and Valuer General [2009] WASAT 204 (Spanjich), the respondent's witnesses stated the general valuation principles to be applied in such matters, as follows (at [35]):
Within [the] statutory definitions [under the VL Act], Market Value is determined in accordance with the Australian Property Institute and the International Assets Valuation Standards Committee as:
'... the estimated amount for which an asset should exchange on the date of valuation between a willing buyer and a willing seller in an arms' length transactions after proper marketing wherein the parties had each acted knowledgeably, prudently, and without compulsion.'
It was said by the Tribunal in Spanjich, at [36]:
This statement of principle is common ground in this review. It is generally consistent with the passages from the authorities reproduced in Wines at [21] to [25]. Those authorities also set out the general approach to valuation methodology.
Recently, in Hamilton and Valuer General [2010] WASAT 5, Member Hawkins said (at [17] [18]):
In coming to the valuation, the Valuer General [in the case before Member Hawkins] has referred to comparable sales information of properties at the date of valuation.
The principles of valuation that apply in such circumstances were discussed in the decision of Duffy v The Minister for Planning [2003] WASCA 294 by McLure J and can be summarised as follows:
•market value is what a willing purchaser would pay a willing but not anxious vendor;
•one method of assessing market value is the comparable sales method which must be relevant and sufficient in volume;
•when using comparable sales, although a matter of degree, a valuer should consider whether there are sufficient similarities with the subject land. Adjustments should be made for topography, location, size, shape, land use, scope for, or difficulties in, development;
•in relation to the transaction of sale, the valuer must weigh the character, business and relationship of the parties, their motives, the terms and conditions of the sale, any special considerations that induced them to sell and the date of the sale; and
•in respect to valuation expert evidence, the facts on which the opinion is based must be proven or the assumptions as to fact on which the opinion is based must be stated. In addition, the inferences that lead to opinion must be stated or revealed. However, these principles have to be applied in the context of the valuer's 'art', which essentially takes account of the valuer's skill and experience.
Here, unsurprisingly, this approach (described as determining 'market support') was used by the Valuer General's expert witnesses (Messrs Dodd and Winzar) to form their opinion as to UV by the application of a methodology described as the '[d]irect [c]omparison of comparable sales'.
Before discussing this data, I should refer to the failure of the applicant to relevantly rebut both the experts' material and their opinion in relation to that data.
Applicant's failure to adduce expert evidence
In any review concerning matters of valuation, and as, I understand, was pointed out to the applicant by the Tribunal (indeed the applicant acknowledges, following a directions hearing, that she 'was asked to give more evidence to SAT'), and as appears from the authorities discussed above, much will turn upon the material collected by, and the application of the expert valuer's opinion upon that material. Thus, it is ordinarily necessary to put forward expert opinion on the topic. This, the respondent has done, but the applicant has declined the invitation to do so. There are likely to be obvious consequences resulting from the applicant's choice.
In Julians Lodge PL v Commissioner of State Revenue [2001] VCAT 1945 the Victorian Civil and Administrative Tribunal (constituted by a panel including the then President, Kellam J) said (at [23] [24] emphasis added):
We are satisfied that the method adopted by Mr Burkitt [the expert valuer called by the respondent in that case] to value site value in each case was an appropriate method … We are unable to suggest any superior method of valuation to that adopted by Mr Burkitt. It is appropriate to say that we accept that Mr Burkitt has substantial expertise … and that he had a clear and detailed knowledge of the particular issues relevant to the valuation of such sites. We are comforted in this regard by the failure of the Applicant to call any expert evidence whatsoever or to challenge, in any meaningful way, the method of valuation adopted by Mr Burkitt.
Having conducted his analysis of comparable sales Mr Burkitt then gave evidence of his opinion of the site value of the relevant site in consequence of such analysis. … We accept the expert opinion of Mr Burkitt in this regard and as noted above observe that his valuation was not challenged by any contrary expert evidence.
A similar conclusion or result was reached by this Tribunal in Rowles and Valuer General [2005] WASAT 325 (Rowles) (at [46]).
Applicant's submissions
I turn to the material filed with the Tribunal which sets out the applicant's case.
First, there are some handwritten annotations on a Landgate pamphlet. These notes are a series of questions or concerns (most often complaints) stated generally. Some relate to the inadequate provision of State or local services particularly as regards local roads that have flowed, or may flow, from an assessment and its consequences (for example, the payment of an emergency services levy). But, there also are miscellaneous references to problems of access in winter, erosion and salt water damage to the applicant's land. The LV Act itself is also said to be out of date, having regard to matters such as climate change.
Two Shire rates notices are produced, one for the subject land and the other for an unspecified lot off York Road, Beverley owned by a Mr and Mrs Blanch (Lot 780 on deposited plan 224680). The claim appears to be made that this second property of 100 acres (approximately 40 hectares) must be considered as undervalued having regard to the assessment made for the subject land. Alternatively, the applicant's property is overvalued.
Next, there is submitted a Shire President's report, apparently for the 20082009 financial year. On this and other of the Shire's written information, in handwritten annotations, various complaints are made or questions raised about the expenditure of the Shire's moneys, and their alleged lack of value or relevance to the applicant.
Some undated advertising material from Ray White real estate agents at York shows 10 properties around Beverley marked as 'reduced' in respect of their advertised for sale price. No information is provided as to the circumstances of such reductions or how, in a valuation sense, these properties relate to the subject land.
Next, there were submitted some photographs, apparently of the subject land. These are undated and purport to show inundation during the winter. One undated photograph is supplied of parachutists in motorised buggies, presumably landing near to the subject land. These activities apparently cause noise and odour amenity concerns.
Similar themes emerge from Ms Tonkin's correspondence with the respondent in letters from her of 23 June 2009; one received on 1 September 2008; one on 18 September 2008, and in her further submission to the Tribunal of 15 October 2009.
Thus, the applicant's case can be roughly divided into three areas:
i)questions of 'value' in respect of taxes, levies and charges derived from the assessed UV;
ii)comparative sales figures, in terms of allegedly similar rural properties; and
iii)specific issues of amenity and access, which it is submitted diminish the UV of the subject land.
The respondent's own careful, if not to say exhaustive, analysis of this material noted that not all of the matters identified by the applicant could be considered as 'valuation matters'. The Tribunal entirely agrees. The consequences of any UV assessment (in terms of rates payable and what those revenues are spent on) are beyond the jurisdiction of both the Valuer General and this Tribunal.
In terms of matters raised by the applicant which might be considered as relevant, the respondent identified the following 'valuation issues' which are summarised by the respondent as follows:
1.The assessed unimproved value is incorrect because [the respondent has] not taken appropriate consideration of:
a.Issues relating to the frontage to Talbot Brook
b.Negative aspects of the Right of Carriageway access to the block
c.The proportion of the block which could be considered arable
d.Noise pollution from a neighbour's flying activity
2.There is potentially a coordination problem with the value assessed for a nearby property identified as lot 780 on Plan 224680. This lot is 40.4686 hectares in area and has an assessed unimproved value of $184,000[.]
I pause here to explain the respondent's approach to 'coordination' issues. In Spanjich, at [23] [24], the following passages occur:
The reference … to 'coordinated with values in the vicinity', is explained by the [Valuer General's senior] representative Mr Palandri, as follows …:
'[The Valuer General's representative]: Coordination arises from the sales of properties within a revaluation at the [relevant] date. So as an example, there are five sales in an area. The five sales are looked at and an unimproved value decided upon for those five properties, directly analysed from the sale.
[The Tribunal]: Not averaged?
[The representative]: No, not averaged. The coordination aspect is for all of the lots that don't have sales on them, you must adjust up and down, coordinate up and down, from the evidence of those lots, from their size, other detriments like inundation in this area, anything else that might be a detriment to property has to be allowed off that evidence that's demonstrated by the sales. That's coordination. So it's how you apply the values to all of the other lots from the evidence and the unimproved values we would put on those lots that have sold.'
The issue of the [Valuer General's] efforts to 'coordinate' nearby properties has been the subject of the following observations made in another valuation matter in this Tribunal (Weld Club Trustees and Valuer General [2007] WASAT 256 at [88]):
'As explained at some length in the reasons for decision in AMP Life Ltd and Valuer General [[2007] WASAT 257], the Tribunal shares this concern [about aspects of 'coordination']. While the Tribunal appreciates the need for coordination of unimproved values of other nearby properties with the subject land that the Valuer General habitually undertakes, especially for the purpose of 'bulk valuations' in helping to set rates annually in the metropolitan area and beyond, it is obvious that if the exercise in coordination is not correctly carried out, it may perpetuate an error in the method of determining market value from one property to another, while still demonstrating a properly coordinated outcome. In other words, the [particular methodology adopted by the Valuer General] may be useful in the CBD valuation context [there under review], but only if the sales evidence that underpins it is disclosed and supports that rate.'
The Valuer General's response to relevant matters affecting the valuation of land in this case is as follows (emphasis added):
The Unimproved Values are reviewed annually with 1 August 2007 being the date of valuation applicable to the current Unimproved Values under consideration. Analysis of market sales leading up to and around that date disclosed the value of smaller rural blocks had increased at a disproportionate rate. Small lots show large increases in value while there was virtually no increase in value being reflected in 'broad area' land. This created a concertina effect with values in the small to medium sized blocks in the 20-120 hectare range. Examination of the Sales Evidence [discussed in these reasons below] illustrates this situation it shows lots ranging from around 11 hectares to around 46 hectares with a selling price differential range of only $75,000[.]
This is part of normal market cycles and the pattern can change from year to year. There is some limited evidence to date that suggest that for the next revaluation we may see a stabilisation or slowing in the rate of growth of values for smaller blocks and [an] increase in the value of 'broad area' farms.
Subject land: The issues addressed here are primarily individual characteristics recorded against Ms Tonkin's property and in particular the issues we identified as being the key elements of her objection.
A detailed inspection of the property was carried on the afternoon of 25th November 2008 by valuers Russell Dodd and John Winzar accompanied, for part of the time, by Ms Tonkin's representative. We have also researched office records and the [sic] examined several generations of aerial photography which show patterns of agricultural use of the land. Adjoining properties were also inspected and neighbouring owners interviewed. As a result of this action we have determined:
1.The positive attribute for river frontage is appropriate. While there may be intermittent natural events which cause a temporary negative focus on the frontage to Talbot Brook overall this is seen as a positive element. It provides an aesthetically appealing outlook and because of the link to Christopher Brook there is an almost year round flow of low salinity water which maintains fresh growth on the riverine flats and provides, to some extent, the possibility of year round grazing and stock watering. The allowance allocated to Ms Tonkin's property is in keeping with other properties in similar situations in the vicinity.
2.The negative aspects of the Right of Carriageway access are acknowledge[d] and appropriate allowance made in the calculation of the unimproved value. The allowance allocated to Ms Tonkin's property is in keeping with other properties in similar situations in the vicinity.
3.While Ms To[n]kin considers only 35% to 40% of her land is arable our investigations have concluded that the arable proportion is around 85%. As it is normal rural practice for 15% to 20% of a property to have vegetation remaining in the form of shade and shelter breaks, corners which are difficult to work and vegetation along watercourses this property is considered fully developed.
4.Noise pollution is only a valuation issue if there is a consistent long term problem or there are regulatory restraints placed on the use of the property because of noise. Sales evidence which demonstrates an impact on the values of nearby properties is required. The type of noise referred to by Ms Tonkin probably comes under the provisions of the Environmental Protection (Noise) Regulations and is the responsibility of the local authority.
On the second issue to do with coordination with respect to Lot 780, the respondent submits (emphasis added):
Valuers Russell Dodd and John Winzar interviewed Mr and Mrs Blanch [the owners of Lot 780] and inspected the property on 18th May 2008. Other nearby properties with similar characteristics were also inspected.
That there is a relatively small differential between the two properties is not, in itself, particularly surprising in the light of the market behaviour around the date of valuation which [is referred to above].
However after consideration of evidence gathered during interviews and inspections and examining office records we [have] concluded that we may not have appropriately allowed for the double river frontage that the property enjoys. When corrected, this will result in an increase in the assessed unimproved value for this property. This issue will be addressed in the next revaluation period so as not to impact on a third party to this objection.
The respondent's case: comparative sales evidence
The respondent produces the following comparative data, for seven properties in a radius of about, on the Tribunal's estimate, 10 15 kilometres from the subject land (see also the respondent's accompanying Landgate marked up aerial photograph J116636, undated):
| Sale | Land ID (Date of Sale) | Price (Resale Activity) | Disclosed Summation UV | Area (hectares) | Comments/ Comparability |
| 1 | 153P52648 (September 2007) | $230,000 (July 08 $253,000) | $196,000 | 11.0522 | Smaller, triangular block with Dale River as one boundary, unsealed road frontage, no water, power at boundary. Inferior in size. |
| 2 | 139P116102 (December 2007) | $220,000 | $163,434 | 15.2000 | Smaller, poorer access, flat uninteresting. Very Inferior on many attributes. |
| 3 | 845P224680 (October 2007) | $259,000 (August 06 $173,000) | $207,148 | 16.2000 | Smaller, difficult ROC access & burdened by neighbours' ROC but Dale River frontage. Closely resembles subject [land]. Inferior on size. |
| Sale | Land ID (Date of Sale) | Price (Resale Activity) | Disclosed Summation UV | Area (hectares) | Comments/ Comparability |
| 4 | 133P111182 (April 2007) | $270,000 | $181,700 | 20.2000 | Flat uninteresting, no power, somewhat isolated. Inferior on many attributes. |
| 5 | 86P38372 (May 2007) | $250,000 | $226,452 | 21.2997 | Steep. Large area of granite, services not connected, excellent views. Quite different attributes from subject [land] but attributes have considerable market appeal. Similar. |
| Subject [land] | 909[P]247114 | $182,000 (Assessed) | 23.9000 | Fully developed, suitable for cropping and grazing. ROC access, external services other than telephone not connected. Talbot Brook frontage. | |
| 6 | 800P29517 (July 2007) | $275,000 | $215,095 | 33.6716 | Larger, good access, fully developed, light soils, setting not as attractive. Slightly superior on size only. |
| 7 | 17357P225588 (January 2007) | $270,000 | $216,624 | 38.8000 | Low lying, flat cropping and grazing land. Adjoins subject [land], services not connected, setting not as attractive. Superior on size only. |
| 8 | 102P42824 (June 2007) | $305,000 (June 08 $330,000) | $296,760 | 46.2155 | Gently sloping cropping land at frontage, rising to very steep rocky grazing land at rear which constitutes approximately 50% of area. Good views from elevated part although access difficult. Superior on size. |
Importantly, the respondent's experts' opinion as to this data is as follows:
While the sales evidence and associated disclosed summation value of a range properties were considered[,] particular weight was given to three of the recorded sales. Sale 3, although smaller [in area relative to the subject land at 16.2 hectares], provides compelling evidence because of its proximity to the subject [land] and [has] very similar characteristics. Sale 5 is a slightly smaller block without external services connected but [with] a physical attribute (in this case views) which adds value. Sale 6 [sic, should be 'Sale 7'] is the adjoining, larger, block which is flat and cleared and has no special attributes although [a] slightly dated sale it could be considered as the determinant of an upper limit of the value of subject [land].
The applicant's response to the respondent's comparative sales evidence
The applicant's response, such as it was, to the respondent's data was as follows (omitting some superfluous material):
Sale number 1
a)I don't have a road frontage
b)Mine are all dirt [roads?]
c)I don't have power or water at boundary
d)[T]hey don't have ROC [Right of Carriageway]
e)Inferior on size
f)Not like my block
Sale number 2
a)This property was [r]educed
b)Very inferior on many attributes and size
c)Not like my block
Sale number 3
a)Reduced in price from $259,000 sold for $170,000
b)Higher land[,] no flooding in [w]inter
c)Inferior on size
d)Not like my block
Sale number 4
a)This sale isn't in my area
b)Inferior on many attributes and size
c)[N]ot like my block
d)Reduced in price
Sales number 5
a)[M]y block has no services either
b)[T]his property has no ROC
c)I don't have elevated excellent views
d)I don't have [r]oad [f]rontage[,] this property does
e)Quite different attributes from subjects as written [sic]
f)Attributes have considerable market appeal
g)Russell Dodd [the respondent's expert] says that this block is similar to my block
h)This is the only sale that Russell Dodd said that is similar
i)[N]ot like my block
Sales number 6
a)[B]igger than my block
b)[G]ood access, [m]ine is very bad
c)Fully developed
d)[L]ight soil. Mine is clay
e)Setting not as attractive. Says who? Someone did find it attractive as it [was] sold
f)[Y]ou can get Mobile Service at this block. I can[']t at mine
g)[N]ot like my block
Sale number 7
This block was on sale for as long as mine, we know the people that bought this block and it was sold in 2006 for [$]99,000
Sale number 8
a)This block was [r]educed
b)Huge block[,] 46.2155[.] Mine 23.9000
c)[G]reat views
d)Not like my block.
Importantly, the applicant does not appear to challenge any of the respondent's sales data or information. Then follows some general observations by the applicant on methodology, as follows:
What aspects does [c]onsiderable market appeal say to you[?] Everyone is different. What you say is a good attributes may not be for that person [sic].
What book of attributes have you got to subject this evidence on [sic] [.] Attributes = $? That's so wrong.
I have been around to all of the [s]ales [e]vidence blocks in question, and you can get [m]obile service at every one.
All [of] the elevated blocks do not get flooded in the [w]inter. Like mine [sic].
Most of the blocks in mention [sic] have no easement [ROC]. Like mine [sic]. Majority have road frontages.
In her conclusion, the applicant again raises matters that have little, if anything, to do with the issue at hand, saying (emphasis added):
I know that I won't get any satisfaction out of this objection.
I have been told by so many people.
I just think that it is so unfair that you can charge people to pay more rates but yet have no changes in the area not even a sealed road or an easement [access] upgrade[.] Yet we all still pay, pay, and pay.
Of course, as has already been mentioned, neither the respondent nor this Tribunal actually 'charge people to pay more rates'.
The Valuer General's response to the applicant's material, so far as it was considered to be relevant, was as follows:
To further address issues indirectly raised concerning the coordination of unimproved values please find attached two maps - The first map focuses on the area surrounding the applicant's Lot 909 … with the respective unimproved values provided for the following rating years:
2007 (Year prior to year of objection)
2008 (Unimproved value $182,000 - subject of appeal [review])
2009 ([S]ubsequent year)
The second map shows the same content but relating to the comparable sales already used as evidence.
The respondent supplies this information:
Firstly, to emphasize that the adjoining lots of similar size within the vicinity experienced similar increases in unimproved values between the 2007/08 and the 2008/09 shire rating year.
[This is in] response to the applicant's comment [in a submission to the Tribunal dated 30 September 2009, and received on 15 October 2009] - ' I[']m yet to see [e]vidence of any other Rate Payer that has paid an increase of [$800,000] in my area.'; and
Secondly, to highlight the fact that the coordination issues raised concerning Lot 780 have been addressed [as previously explained and as is set above in these reasons].
The Valuer General goes on briefly to respond to an issue regarding 'unsubstantiated rates payable on an unestablished lot in Roleystone'. I agree that this issue is irrelevant to this review.
It is in the submission received on 15 October 2009, referred to immediately above, that the applicant claims that she is being 'discriminated' against because, as she says:
It seems that I have to pay more money for rates due to [the] sales of land in my area. I am being penalized for the sale of land in my area.
The applicant did not seek leave to make any further submissions in response to this responsive material from the Valuer General. In any event, the new material supplied tends to support the respondent's case concerning the coordination of unimproved values of properties (including neighbouring properties) in the vicinity of the subject land. Therefore, far from being discriminated against, the applicant is clearly not alone as regards an increase at the relevant time of unimproved values in the locality.
Discussion of the case and conclusions
Notwithstanding the applicant's own informal survey or analysis and her related comments in response, it is clear that the respondent's valuers conducted a careful comparative survey noting material factors that might explain both the sales evidence and the relationship of that data to the subject land. They are engaged upon the task laid down by law, namely that of forming an expert opinion on the 'postulated … hypothetical prudent purchaser on the date for valuation': Lake Karrinyup Country Club Inc v Valuer-General (unreported, WASC, Library No. 960515, 13 September 1996), cited in Rowles at [21].
The applicant does not, it seems, dispute any of the basic data, only the interpretation or relevance of it. (Indeed, at one point, she appears to acknowledge that land values have indeed gone up.) However, her interpretations are, with respect, largely subjective, anecdotal, unstructured and informal and do not seriously engage, even as a nonexpert, with the clear pattern that emerges from the data concerning the value of land in her vicinity influenced by market forces (that is, actual or imputed sales evidence).
It is possible that this is because the applicant is largely focused instead, it seems, upon the perceived injustices that she thinks flow from the alleged overvaluing of her land as it relates to the level of services that the State provides to her and that she is obliged to contribute to, based upon that valuation. These matters are, as has been mentioned, essentially irrelevant to the issue before the Tribunal.
At any rate, it is clear that she does not appreciate or understand the 'valuer's art', nor does she ultimately accept what is, with respect, plainly obvious from the data itself (even to a reasonably intelligent, as the applicant is, nonexpert): taken as a discrete issue, an unimproved value of not less than $182,000, at the relevant time, seems reasonably justified.
When there is added to this 'raw' data (which material is, as I have emphasised, not disputed) the unrebutted professional expert opinion of the respondent's expert witnesses, the result of the review is inevitable: the applicant's review must be dismissed.
The comments that I made in Rowles, at [46] [47], are equally applicable here:
… The applicant declined to call any expert evidence to rebut the valuer's opinion. The Tribunal has carefully reviewed and considered [the applicant's] arguments, but it is not persuaded by them. There is an abundance of evidence to support a finding by the Tribunal that not only was a relevant, standard process of valuation followed, but that there existed sufficient valuation data upon which an expert opinion could be expressed.
The Tribunal finds that the applicant has not made out any case to impugn either the process of valuation or assumptions and data underlying it. Consequently, the expert evidence stands in support of the respondent's case. The decision under review … is therefore affirmed.
Costs
Speaking generally, an unsuccessful applicant in this Tribunal appearing as a citizen seeking an independent review in good faith of a decision of a government agency affecting them will be immune from a costs order made against them. However, costs still remain a matter of discretion for the Tribunal.
This review illustrates the difficulty where an applicant, even after both 'advice' and a full explanation of the decision, persists in refusing to engage in a meaningful way (including furnishing expert advice or its equivalent) with respect to the precise issue at hand (here, the hypothetical value of land in a certain assumed state at a fixed date), and engages instead largely in the agitation of issues patently outside of the control of either the agency or the Tribunal. It is these secondary matters which particularly tend to distinguish Ms Tonkin from, say, the unsuccessful applicants in Wines and Rowles.
As arguably occurred here, the cost to the taxpayer in such circumstances will be considerable, and seems both disproportionate and unjustified, having regard to the applicant's real concerns. Moreover, attention to other, perhaps more deserving cases, will be postponed unnecessarily while the review takes place.
I would thus wish to reserve for future cases whether the question of costs in such circumstances ought to be visited upon such an applicant.
Conclusion and orders
For the reasons given above, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision under review is affirmed.
I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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