Weber v Department of Natural Resources, Mines and Energy
[2004] QLC 65
•29 July 2004
LAND COURT OF QUEENSLAND
CITATION: Weber & Anor v Department of Natural Resources, Mines and Energy [2004] QLC 0065 PARTIES: Fritz and Willy Weber and The Proprietors
(applicants)v. Chief Executive, Department of Natural Resources, Mines and Energy
(respondent)FILE NO: AV2003/0209 DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under Valuation of Land Act 1944 DELIVERED ON: 29 July 2004 DELIVERED AT: Brisbane HEARD AT: Innisfail MEMBER Mr RP Scott ORDER: I allow the appeal and determine the value of the subject land at 1 October 2002 to be Forty-Seven Thousand Five Hundred Dollars ($47,500). CATCHWORDS: Statutory valuation – Valuation of Land Act 1944 – s.26A(1) – Access allowance – Appeal allowed. APPEARANCES: The appellant in person
Mr K Fisher, Barrister counsel for the Chief Executive
Pursuant to the provisions of the Valuation of Land Act 1944 the Chief Executive valued what I will call the subject land as at a relevant date of 1 October 2002. The initial valuation was in the amount of $68,000 however following objection that was reduced to $40,000. That figure has been appealed against; however, as part of its case in the appeal, the Chief Executive has through its appointed expert led evidence to a valuation figure of $50,000. That figure might be contrasted with the suggested valuation of $24,000 put forward by the appellant.
Fritz Weber appeared on behalf of the appellant and gave evidence in support of the valuation contended for. Michael Lawrence Donnelly, a registered valuer provided valuation evidence in support of the valuation determined by the Chief Executive.
The subject land comprises Lots 1 to 5 on Group Title Plan 70423 in the Parish of Hull together with Lot 0 which is the common property in the Plan. Pursuant to the provisions of s.26A(1) of the Act the Chief Executive elected to value the land in the Group Title Plan “… as an undivided whole and as if it were owned by a single owner.”
The subject land has a total area of 10.24 hectares of which 9.2646 hectares comprises the common property. Each of Lots 2 to 5 inclusive has an area of 1,943 square metres, whilst Lot 1 has an area of 1,946 square metres. Drains have been constructed along the boundaries of Lots 1, 3 and 5.
The subject property is situated approximately 9.7 kilometres north-westerly of the Mission Beach Post Office and gains access via Mountain View Close. That road is formed earth and gravel and according to Mr Donnelly’s report provides “fair access” to the subject property. Mr Weber disagreed with that description – a point to which I return below.
Electricity and telephone are available and connected to the subject property though there is no reticulated water supply available. Mr Weber said that the electricity connection was at the cost of the appellant providing a guaranteed annual expenditure on electricity.
The subject land is a large irregular shaped parcel of predominantly broken tropical rainforest country which falls to the west where the common property has extensive frontage to South Maria Creek. Closer to the Lots 1 to 5 the common property is severed by Jurs Creek.
The parties agree that the optimum home site location would be on Lot 1 given its proximity to Mountain View Close and its more elevated flood free status.
The parties agree that a large percentage of the subject land experiences severe flooding after extended periods of heavy rain. Mr Weber said that after such rain flooding occurs up to a depth of 2 to 3 metres, that depth being indicated on fence posts. The common property is heavily vegetated with plants including Singapore Daisy and Sensitive Weed which, if not controlled and maintained, make access through the common property difficult.
The subject land is zoned “Rural Conservation” under the Planning Scheme for the Council of the Shire of Johnston gazetted on 14 November 1997. The land is improved with a habitable shed, there being no restrictions on the land being developed for a residential use. Indeed Mr Donnelly valued the land as such.
Mr Weber employed the Chief Executive’s $40,000 valuation figure as the basis for the appellant’s estimate of value at $24,000. He said that only Lots 1, 2 and 3 were suitable for habitation and that three-fifths of $40,000 calculated to his $24,000 figure.
The approach employed by him suffers in a number of respects. First the valuation now contended for by the Chief Executive is $50,000 not $40,000. Apart from that the approach employed by Mr Weber disregards the fact that the Chief Executive has valued the subject land as a single Lot and has not placed individual values on each of the Lots in the Group Title Plan. Most importantly however: the approach employed by Mr Weber is not a recognised method of valuation and is certainly not one in which I could place any confidence.
Mr Donnelly employed the conventional valuation methodology of comparing the subject property with sales transactions that had taken place in reasonable proximity to the subject land and close to the relevant date for valuation. It was his Sales 4, 5 and 6 which first prompted him to review the $40,000 valuation figure. These sales comprise two properties in Merryburn Drive which is located 7 to 8 kilometres by road north-easterly of the Tully Post Office in a subdivision of a 31 Lot estate primarily comprising lots of 6,000 square metres to 8,000 square metres. The sale lots enjoy a pleasant rural outlook and are located 17 kilometres or so from the Wongaling Beach commercial precinct. Mission Beach Post Office is located a further 5 kilometres by road north-easterly of Wongaling Beach.
Sale 4 comprised Lot 6 on RP 814219 having an area of 0.8601 hectares and a zoning of Residential (Rural). The sale took place on 13 August 2001 for sale price of $42,000 which was analysed to an unimproved figure of $38,500 by Mr Donnelly. The applied figure was $36,500.
Sale 5 is Lot 24 on SP 110735 and has an area of 0.6001 hectares and a zoning of Residential (Rural). The sale price was $45,000 on 12 December 2001. Mr Donnelly analysed the price to an unimproved figure of $41,500 and again applied an unimproved value of $36,500.
The Sale 6 transaction comprised a resale of the property the subject of Sale 4. The resale took place on 18 December 2002 at a price of $40,000. Its analysed price was $36,500.
Mr Donnelly said that the sales properties were generally inferior to the subject land because of the smaller area, featureless landscape and greater distance to the Mission Beach locale. The sale properties generally had a better building contour than the subject and no drainage problems. The Sale 5 property has a rural view. He acknowledged that the sale properties were well located to Tully. Each of the sales had a highest and best use similar to the subject.
Mr Weber was aware of the sales and he noted that they had the advantage of made roads and channelling. He described them as being part of a “massive development” although I would doubt that the 31 Lot subdivision merits such a description.
It seems to me that Sales 4, 5 and 6 effectively provide a “floor” level to the valuation of the subject property. On the other hand Sales 1 and 2 in Mr Donnelly’s valuation might be said to provide the “ceiling”.
Sale 1 is on Hill 60 Road being described as Lot 2 on RP 732707 with an area of 8.662 hectares and a rural zoning. The sale took place on 30 May 2002 for a sale price of $92,000 which Mr Donnelly analysed to an unimproved figure of $76,275. The applied unimproved value for that property by the Chief Executive was $63,000.
The Sale 1 property is located approximately 3.2 kilometres north-west of the El Arish Post Office and was considered by Mr Donnelly to be superior to the subject property in that the sale has better quality flood free country and good quality rural views over cane fields back to distant mountains and islands. These advantages more than offset the subject properties larger size and proximity to Mission Beach in his opinion.
Sale 2 is on Mission Beach Road about 2.3 kilometres by road south-westerly of Mission Beach Post Office. The sale is described as Lot 2 on RP 894601 having an area of 4.555 hectares and a zoning of Conservation. The sale property also has a conservation covenant registered on the title though enjoys a similar highest and best use to the subject that being for rural residential purposes. In Mr Donnelly’s opinion the sale property is superior to the subject land by virtue of its superior location to Mission Beach, better building contour though smaller size. The sale land does not suffer the severe flooding problem apparent on the subject property. At the date of sale the prospect of a sewerage system being provided to Mission Beach, including the area of the Sale 2 land, had been mooted by the Local Authority, however the purchaser would have viewed that advantage as being one in prospect rather than in reality at the date of sale.
Mr Donnelly said that his Sale 3 property comprised the best basis for valuing the subject land. This sale is located on Garners Beach Road. Garners Beach is described as Lot 6 on SP 110631, has an area of 0.4593 hectares and is zoned Rural Conservation. The sale took place on 19 November 2001 for a sale price of $55,000 which is its unimproved value.
Mr Weber understood that he had inspected the sale, though his description of the extensive views from the sale property over Bingil Bay, the sea and islands reveal that he must have been mistaken as to the property inspected. The sale property in Mr Donnelly’s evidence has no views but enjoys a pleasant tropical rainforest outlook. The Gardners Beach area is reasonably undeveloped with surrounding uses being rural, rural residential and some straight residential uses. The sale land according to Mr Donnelly is marginally superior to the subject property by virtue of its superior beach location and better building contour. The subject land has the advantage of a larger area though both the sale and the subject property are severed by creeks. The severance on the sale property sale isolates only a small area of the land in comparison to the creek severance on the subject land. The sale does not suffer the severe flooding problems which one encounters on the subject. Both properties have a rural conservation zoning whilst the sale property also has a conservation covenant registered on the title. Notwithstanding that each property has a highest and best use as a rural residential site. In Mr Donnelly’s opinion the features of the sale property are considered to be more than offset by the subject land’s larger area.
Mountain View Close which provides access to the subject land is constructed along a ridge, however has a low point near its point of commencement. Mr Weber said that a culvert was intended for that low point, however had not yet been installed. As a result, water crosses the road at that point following heavy rain and, when the water drains away, it leaves behind boggy and unsafe conditions. The local Council has been called out on a number of occasions to repair the boggy area, though according to Mr Weber, with no success in addressing the problem and on occasions actually making the problem worse.
Mr Donnelly was aware of the low area, but not aware of the extent of difficulty described by Mr Weber. Mr Donnelly gave no reason as to why Mr Weber’s evidence should not be accepted on this point. On the basis that I would accept that evidence, Mr Donnelly expressed the view that the value of the subject property might reasonably be reduced by 5%, that is to a figure of $47,500.
Whilst Mr Weber demonstrated a tendency to overstate the disabilities of the subject land and failed to mention that it had any advantages, I accept that access difficulties of the general nature described by him existed at the relevant date for valuation. I also accept the level of discount for that disability suggested by Mr Donnelly. Mr Donnelly is an expert valuer with substantial experience and gave witness in an objective and dispassionate manner.
Mr Weber said also with respect to access to the subject land that a round-about had been designed but was not yet constructed. I understand that he was referring to a cul-de-sac designed for the point of termination of Mountain View Place. The absence of the cul-de-sac does not appear to me to constitute a disability which invites any further discount.
Mr Weber introduced evidence of sales which took place on 19 June 2004 of Lots 3, 4 and 5 in the subject Group Title Plan at prices of $16,000, $19,000 and $18,500 respectively.
These sales took place well after the relevant date and in the absence of evidence pointing to their reliability as at 1 October 2000 ought not to be relied upon. The sales do indicate however that Lots 3, 4 and 5 are apparently considered by the Local Council to be sufficiently elevated to accommodate building sites notwithstanding Mr Donnelly’s evidence that these Lots exhibited dampness during his inspection of the land in June 2003 and had questionable potential for habitation.
Given that Lots 1 and 2 are clearly the best of the five Lots (other than the common area) in the Group Title Plan, the sales neither support Mr Weber’s suggested $8,000 per Lot figure nor undermine Mr Donnelly’s valuation of the aggregation under s.26A(1) of the Act.
In the result I allow the appeal and determine the value of the subject land at 1 October 2002 to be Forty-Seven Thousand Five Hundred Dollars ($47,500).
RP SCOTT
MEMBER OF THE LAND COURT
0
0
0