Westfield & Goodwin v Chief Executive, Department of Natural Resources
[1997] QLC 98
•27 June 1997
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BRISBANE
27 JUNE 1997
Re: Appeal against an unimproved valuation -
Valuation of Land Act 1944 -
Shire of Boonah (AV96-300)
John Irvine Westfield and Pamela Wendy Goodwin
v.
Chief Executive, Department of Natural Resources
(Hearing at Beaudesert)
D E C I S I O N
JI Westfield and PW Goodwin are the owners of land described as Lot 140 on Plan WD1701, Parish of Alford, containing an area of 183.9 ha. Under the provisions of the Valuation of Land Act 1944 (the Act) as at 1 January 1996, the Chief Executive determined the unimproved value of that land at $88,000. The owners objected against that valuation and following advice that the Chief Executive had disallowed their objection, they appealed to the Land Court, advising that their estimate of the unimproved value was $70,000.
The property is situated off Head Road, Carneys Creek, about 25 km south-east of Boonah and about 13.5 km south of Lake Moogerah. Its north-west boundary is adjacent to the Main Ridge National Park.
Access is by the bitumen sealed Head Road to within 1.7 km of the subject land and then by Wickman Road, which is a gravel track and crosses three watercourses. Access is impassable after periods of heavy rain.
At the hearing, Mr JI Westfield appeared and gave evidence. The respondent was represented by Senior Valuer Mr DJ O’Connor, while valuation evidence was given by Mr DR Wall, a registered valuer employed by the Department of Natural Resources.
Mr Wall described the land as follows:
“The property has steep mountainous country in its south-eastern part with sheer rock face cliffs.
It is bisected by Oakey Creek which provides permanent waterholes at intervals throughout the property.
The northern part slopes moderately to the northern boundary from a hill in the property’s west.
The whole site has a high rock component with rock face close to or forming the earth’s surface.”
The land is zoned “Rural A” under the Town Planning Scheme for the Shire of Boonah and is designated “Rural” under the Shire Strategic Plan. Apart form the construction of a residence, most of the land remains in its natural state. Both parties have described it as a “rural retreat”.
There is no dispute that the land is unsuitable for agriculture or grazing. The owners are concerned about the environment and wish to preserve the land in its natural state. Their grounds of appeal express concern about the extent of the increase in the valuation since they purchased the property in 1981, the difficult access both to the property and internally, the lack of services and the rough terrain.
Mr Westfield said that they purchased the property for $35,000 in 1981 as a rural retreat, being attracted by its isolation and solitude. They also wanted to be as close as possible to the head waters of the creek in order to have a supply of unpolluted water. Oakey Creek, a tributary of Teviot Brook, runs through the property and at the time of purchase they thought it was permanent. However, they found that during the drought Oakey Creek ceased to run and became a series of waterholes, which tended to become stagnant. They have also discovered that there is a cattle dip on a property upstream of them.
Part of the attraction of the property to the owners is the wide diversity of plant life and the fact that the land is close to the National Park. Mr Westfield said that they are presently negotiating with the relevant Department to have the property declared a nature reserve.
Since purchase, they have constructed a house on the property, approximately 3 km from the bitumen sealed Head Road. Mr Westfield explained that after 4 to 5 inches of rain the gravel access road becomes impassable for some weeks. It is maintained by the Council on an irregular basis. After heavy rain Head Road itself is impassable.
No services are connected to the property except telephone. Mr Westfield said the connection of electricity would be far too expensive and they rely on solar power. There is no mail service to the property, but it is available at Head Road.
Mr Wall tendered a topographical contour map which graphically displays the rugged nature of the subject land. In his oral evidence, he described the steep mountainous country in the south-east rising to the 530 metre level, with its sheer rock face. From there, intersected by numerous gullies, the land falls to Oakey Creek. On the northern side of Oakey Creek, he said, the most significant feature is the hill on the western boundary, from where the land slopes more moderately to the north.
Mr Wall thought that the most dominant features of the land are the cliffs in the south-east and the Oakey Creek gorge, which cuts through the land from the south-west to the north-east, which he described as very attractive. The land adjoins the National Park to the north-west and has views of the mountains. He considered the area to be a very attractive part of the Shire.
Mr Wall was of the opinion that the land had no potential for subdivision, because of the access and because of its rugged nature being cut by Oakey Creek. He had valued it as one rural residential site.
Mr Wall was of the opinion that there is a ready market for such properties. To support his valuation, he relied upon four sales.
Sale No. 1 is situated in Reville Road, Moogerah, has an area of 203.56 ha and sold in November 1996 for $145,000, analysing to show an unimproved value of $122,000. As at 1 January 1996 (the date of valuation) an unimproved value of $105,000 was applied to that property.
Mr Wall described it as being mostly mountainous forest country (85%), with very difficult access in the eastern part, steeply sloping to light forest in the west (15%). He considered the sale and subject land to be similar in services, location, zoning and component of mountainous steep country. He thought that it was very comparable in size and type of country. It is rugged and steep and internal access is difficult, in the eastern part particularly. However, it had more accessible country in the western part. Overall, he considered it to be superior. He felt that the sale price of $145,000 was indicative of what purchasers were prepared to pay for that type of property.
Sale No. 2 is situated off Croftby Church Road, has an area of 49.215 ha and sold in December 1994 for $67,500, analysing to show an unimproved value of $65,700. As at 1 January 1996, the respondent applied an unimproved value of $58,000 to that property. Mr Wall described it as a steep rough sandstone forest rocky knoll, the gazetted access to which had not been formed. It had difficult 4-wheel drive access through private land.
Mr Wall regarded that property as inferior to the subject land because it is smaller and access is a problem. Although it is rough, the purchasers were prepared to pay $67,500.
Sale No. 3 is situated in Carney’s Creek Road, Croftby, has an area of 107.34 ha and sold in October 1996 for $140,000, analysing to show an unimproved value of $138,000. As at 1 January 1996 the respondent applied an unimproved value of $67,000 to that property.
Mr Wall described that land as comprising steep forest ridges, heavily timbered with ironbark, stringy bark, etc. He regarded it as superior to the subject, land acre for acre. Although it has steep rough terrain, it has more usable land and has superior access.
Sale No. 4 contains an area of 64.75 ha and sold in April 1995 for $130,000, analysing to show an unimproved value of $87,500. As at 1 January 1996 the respondent applied an unimproved value of $83,000 to that property.
Mr Wall described that land as easy to moderate sandstone softwood scrub and stony forest ridges. It is used with other land for grazing purposes and is smaller and superior in land type. Although it is not strictly comparable, Mr Wall considered it to indicate the price people were prepared to pay for a property nearly one-third the size of the subject land.
Mr Wall agreed with Mr Westfield about the access problems of the subject land. However, he made the point that similar problems were suffered by many properties in the area.
Mr Westfield took issue with Mr Wall’s opinion that purchasers of rural retreats paid more for larger properties. He felt that the market for rural retreats was limited and that there was a price barrier of $50,000. He felt there would be few buyers for rural retreats priced over $50,000.
As to size, Mr Westfield felt that 50 acres was more attractive than larger properties which were more of a burden to manage. They required more fencing and more resources to control noxious weeds, feral animals and particularly fires, which he considered to be very important. He felt that a purchaser could obtain isolation and privacy on a 50-acre property as easily on one many times that size. However, Mr Westfield admitted that he could not produce sales evidence to back his opinion.
In this case, the appellants’ main concern was with the increase in the valuation which they considered to be not sustainable. They purchased the land as a rural retreat because of its many intrinsic features. In order to enjoy its attributes, they were prepared to put up with many inconveniences. They want to keep it in its natural state and contribute to the biodiversity of Australia. They consider it to be their own private national park. It has no economic capacity, nor do they intend that it should have.
Mr Westfield concedes that there is a market for such rural retreats in the area. Indeed, he said that a number of properties on their eastern and southern boundaries had been bought by people for just that purpose. However, he felt that the market for such property was limited.
On the other hand, Mr Wall was of the opinion that purchasers were prepared to pay substantially more than $50,000 for properties with appropriate attributes. He readily admitted that different attributes appealed to different purchasers and what appealed to one may not appeal to another. He produced four sales to support his opinion of the unimproved value, although he conceded that Sale No. 4 was not really comparable.
The provisions of the Act require the respondent to determine the unimproved value of the subject land as at the date of valuation. Unimproved value is defined as the price which 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 the improvements on the land had not been made. It has been well established that the most appropriate basis for determining unimproved value is by reference to sales of unimproved or lightly improved land: Grahn v. The Valuer-General (1992)14 QLCR 327 and the cases cited therein.
Mr Wall valued the subject land in accordance with the approved method. He has referred to four sales, three of which are comparable to the subject land in various ways. After considering the evidence in relation to those sales, I have come to the conclusion that there is no artificial barrier of $50,000 for rural retreats or any limit by area. The evidence clearly shows that purchasers who are attracted by the attributes of rough, rugged and no doubt beautiful country, are prepared to pay substantial amounts for such properties.
Under the provisions of the Act, the appellants have the burden of proving their grounds of appeal. After considering all of the evidence in this case, I cannot find that they have discharged that burden.
In addition, s.33 of the Act provides that a valuation made by the respondent shall be deemed to be correct until proven otherwise. The effect of that provision (then s.13(7)) was considered by the High Court in Brisbane City Council v. The Valuer-General (1978) 140 CLR 41. In that case, Gibbs J (as he then was) said at pp.56-57, that once it is shown that in making the valuation the Valuer-General acted upon a wrong principle, or made a serious error of fact, or that the valuation was made by a method fundamentally erroneous, the presumption created by Section 13(7) is rebutted.
In this case I cannot find that the respondent acted upon a wrong principle, or made a serious error of fact, or that the valuation was made by a method fundamentally erroneous. Therefore, the presumption is not rebutted and the appeal must fail.
Accordingly, the appeal is dismissed and the valuation of the subject land determined by the respondent at Eighty-eight Thousand Dollars ($88,000) is affirmed.
JJ TRICKETT
PRESIDENT OF THE LAND COURT
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