Whackett v Chief Executive, Department of Natural Resources

[1997] QLC 164

[1997] QLC 164

 

  LAND COURT

BRISBANE

17 October, 1997

Re:     Appeal against Annual Valuation
Valuation of Land Act 1944
  Valuation Roll No 7993
  Local Government:  Gold Coast - Albert
  (AV96-61).

Kenneth Walter Whackett
  v.
  Chief Executive, Department of Natural Resources

AND

Valuation Roll No 8099
  (AV96-62).

Kenneth Walter and Margaret Rose Whackett
  v.
  Chief Executive, Department of Natural Resources

D E C I S I O N

Background:

These matters relate to two adjoining properties located at Shaws Pocket Road, Via Beenleigh, Parish of Darlington, and described as Lot 2 on RP 144905 (AV96-62) and Lot 2 on RP 47469 (AV96-61). By agreement with the parties, the two matters were heard concurrently.  The properties are located approximately 17.5 kms to 19.2 kms south of Beenleigh in the locality of Cedar Creek.  The properties are used as rural residential homesites and for the grazing of cattle.  The key issues relate to the comparison of comparable sales, the nature of the land, difficulties in access, the added value of improvements, and the impact of landslips in the area.
           From long association with the land, and for convenience, the parties agreed to refer to Lot 2 on RP 144905 as Lot 8V, and to Lot 2 on RP 47469 as Lot 5V.  Lot 5V is the eastern lot, and has an area of 54.796 hectares, and Lot 8V is the western lot and has an area of 51.03 hectares.  Both parcels are zoned as "Rural" under the Albert Shire Town Planning Scheme of 24 February 1995, and effective at the date of valuations of 1 January 1996.
           The Chief Executive, Department of Natural Resources, issued valuations at $175,000 (Lot 8V), and $160,000 (Lot 5V) on 19 February 1996.  The appellants objected to those valuations and the Chief Executive amended the unimproved values on 1 April 1996 to $155,000 (Lot 8V) and $135,000 (Lot 5V).  The appellants have subsequently appealed those decisions, claiming the valuations should more properly be $125,000 (Lot 8V) and $80,000 (Lot 5V).
           Mr FL Olsen, retired valuer, appeared on behalf of the appellants, calling evidence from Mr JH Frew, Registered Valuer, and Mrs Margaret R Whackett.
           Mr R Paterson, Barrister, appeared for the respondent, calling evidence from Mr DT Treston, Senior Registered Valuer responsible for determining the valuations.
           At the request of the appellants and with the agreement of the respondent, I inspected the subjects together with the parties.
The Nature of the Land:
           Lot 5V generally rises from the eastern boundary towards the western boundary which is in steep rugged hills, and which creates difficulties for access by other than 4WD vehicles.  Much of the land is heavily vegetated with wattle, softwood scrub, and some ironbark, grey gum and bloodwood, and noxious weeds.  The lot is divided into two parcels by Shaws Pocket Road, with the eastern parcel having an area of about 4 hectares, being mainly cleared stony undulating ridges.  Rocky Creek is a semi-permanent creek which floods regularly in heavy rain and which forms the eastern boundary of Lot 5V.  Much of 5V is subject to landslips, and there is evidence of major landslips across Shaws Pocket Road, reportedly during major flooding of the site in 1974.
           Lot 8V varies from undulating cleared forest ridges of about 5 hectares on the northern boundary near Buchback Road towards Shaws Pocket Road, to steep rugged mountainous country on the remainder.  The soil is predominantly red volcanic with granite outcrops, and is generally timbered with wattle and other softwood species.  The stony slopes are subject to landslips.  The subject is also heavily infested with lantana and partly infested with groundsel and fireweed noxious plants.  There are numerous dozed tracks which are used for the spraying of noxious plants and the movement of cattle.  Lot 8V is also divided into two parcels by an unformed dedicated road off the Beenleigh-Beaudesert Road.  The smaller western parcel is very steep and heavily timbered.  The parties agree that both 5V and 8V are generally very steep, stony and difficult to maintain.
           Because of the difficult nature of both Lots 5V and 8V, and in view of the minimum area of any new lot to be 20 hectares under the Gold Coast-Albert Town Plan, it was agreed by both parties that the highest and best use of both parcels was for rural homesites.  It would be very difficult and expensive to construct roadworks into either site, and each was accepted for valuation purposes as single rural homesites.  While the subjects are consistently used for the grazing of up to 70 head of cattle, the use for grazing purposes under s.17 of the Act, was a matter not approved by the Land Appeal Court in 1996, and is not a matter for consideration in these appeals.  There is currently no dwelling on either lot, and the owners live on another property nearby.  The Land Appeal Court also found that both sites are to be considered "without any subdivisional potential".
Access to the subjects:
           The matter of access to the subjects provides some contention between the parties.  While both parties agree that internal access within both subjects is very difficult due to the very steep topography of the land, the quality of access to possible building sites on each lot invites some differing opinions. 
           In respect of access to Lot 5V, it is agreed that reasonable access by 2WD vehicle is available from the current bitumen sealed Shaws Pocket Road to possible housesites on the eastern part of Lot 5V.  It is also agreed that the last 700 metres of gravel road leading to Lot 5V was sealed in June 1996, six months after the relevant date of valuation of 1 January 1996.  It is also agreed that access along Shaws Pocket Road can be temporarily cut off during flooding at Rocky Creek crossings.
           In respect of access to Lot 8V, it is agreed that reasonable access can be obtained via Buchback Road, an unformed dedicated road off Shaws Pocket Road.  This consists of 200 metres of rough eroded gravel track and 225 metres of dirt track, which is severed by a creek crossing.
           The respondent also argues that access could also be obtained on the western boundary of Lot 8V via an unformed dedicated road, which follows a ridgeline along which an existing track has been dozed by an owner to the south of Lot 8V.  However, the respondent agrees that the current track passes through private property in places, and is not entirely within the dedicated road, and physical access could therefore be denied.  The current access track is closed to the public by locked gates.  The appellant argues that physical access is impracticable from this unformed road due to the very costly nature of any possible road construction.  It is unlikely that the Council will ever build a road in that locality due to the very limited number of people who might use it.
Location of Possible Housesites:
           Mr Treston argues that there are several reasonable housesites on the eastern part of Lot 5V, either side of Shaws Pocket Road.  The most appropriate sites he believes are either where there was a former house on the eastern side of Shaws Pocket Road, or where the current shed is located on the western side of Shaws Pocket Road.  Mr Olsen agrees that both sites are possible locations but, because of the potential nature of the land to be subject to slippage, he argues that those sites are really inferior in nature. 
           In respect of possible housesites on Lot 8V, both parties agree that there are two possible sites in the north-eastern corner of Lot 8V near Buchback Road, one near the existing stockyards, and the other higher on the ridgeline along an existing access track dozed by Mr Whackett.  Mr Treston argues that his preferred site was near the stockyards because of not having to build and maintain an upgraded access road to the alternate site on the ridgeline above the stockyards.  Mr Olsen argues that, because of the more extensive views from the ridgeline site, and as there is no evidence of slippage, which has occurred near the stockyards, then any prudent owner would prefer to build a house on the ridgeline.  Having inspected the subjects I would agree with Mr Olsen.
           Mr Treston also argues that there is some potential for a possible "pole house site" along the unformed road along the western side of Lot 8V.  However, after field inspection and in light of possible extensive road construction costs to gain access to that location, Mr Treston agrees the most likely housesite is near Buchback Road.
Availability of Services:
           A matter of contention between the parties is the impact of providing power to the sites.  Mr Treston argues that, on advice from the South-East Queensland Electricity Board (SEQEB), he understands that all powerlines and poles remain the property of SEQEB, in spite of owners having to pay for their installation in certain circumstances.  Mr Treston argues that when an owner pays SEQEB to have powerlines extended to a property boundary, all the owner buys is "a service", or probably more correctly the acceleration of the installation of the service.  Mr Olsen argues that such payments to bring power to a site are in effect an improvement to the site, and therefore an allowable deduction in order to ascertain the unimproved value.
Comparison of Sales:
           In respect of both Lots 8V and 5V, Mr Frew has relied upon the following sales of comparable properties:
           •          Sale 1 - Rowe to Howard - Lot 785 on RP 817753.

This is a 20 hectare vacant property in Rowes Lane, Cedar Creek, located 3 kms south of the subject, and which has extensive views of the Cedar Creek Valley.  The sale has a large east to west fall, and is heavily timbered.  Current access is via unformed Rowes Lane, thence by a rough dozed track to an area upon a shelf suitable for building on a partly-cleared flatter area (3 hectares) towards the centre of the lot.  The land is zoned as "Rural" and is seen as far superior to either of the subjects because of the better potential building sites, and extensive views.  Cedar Creek is also seen as a superior area to Shaws Pocket area.

The sale sold in July 1994 for $160,000 which, after allowing for improvements, was agreed as having an unimproved value of $135,000.

•Sale 2 - (Hogan to Turner - Lot 2 on RP 170961)

This is a 23.08 hectare improved property located in Shaws Pocket Road, about 1.5 kms north of the subjects. The sale has a 1.1 km shared access easement, 600 metres of which is within the sale area.  The sale sold for $132,000 on 25 October 1996, and the added value of improvements was estimated to be:

Dwelling  $ 40,000
  Power  $  8,000
  Road Works  $  8,000
  Clearing  $  2,000
  Fencing  $  4,000

TOTAL  $ 62,000

After allowing for these improvements, the unimproved value of the sale was seen as $70,000 which was seen as inferior to Sale 1, comparable to Lot 8V, and superior to Lot 5V.
           In support of his valuations, Mr Treston provided the following sales of comparable properties:
           •          Sale 1 - (Rowe to Howard - Lot 785 on RP 817753)

This is the same sale as Mr Frew's Sale 1.  Electricity and telephone are available to the sale, and a power pole is located in Rowes Lane near the south-western corner of the sale.  The sale was valued as a single rural residential site without power available at an analysed value of $155,000, and as a powered site it is valued at $152,000.  The purchaser advised that the vendor had paid $17,000 to bring power externally to the new pole near the south-west corner of the sale.  However, Mr Treston does not allow that cost as it is external to the sale.

There is some evidence of landslips on the property and in Rowes Lane to the east of the current dozed access track to the building area.  The sale, as an unpowered site, is seen as comparable to Lot 5V and inferior to Lot 8V.

•Sale 2 - (Ireland to Lejo Holdings - Lot 92 on WD704).

This is a 54.51 hectare vacant site in Shaws Pocket Road, located about 0.3 kms east of Lot 5V.  The sale is zoned "Rural Hinterland".  The sale is an elevated very steeply sloping ridge falling steeply to Rocky Creek in the west.  Extensive views to Stradbroke Island are available from the ridge line, but the sale is heavily timbered, with rocky clay soils and granite boulders which are subject to slippage.

Access is poor and the sale adjoins the Boral Upper Ormeau quarry area.  Electricity would be available at a considerable cost.

The sale sold to Lejo Holdings who was the adjoining owner for $100,000 in January 1993, which was then applied at an unimproved value of $90,000.  The sale is seen as inferior overall to both Lots 5V and 8V.

•Sale 3 - (MHH Pty Ltd to Yarker - Lot 11 on RP 880022)

This is a rectangular shaped vacant site of area 2.282 hectares, located in Cedar Creek Road about 2.8 kms south-west of Lot 8V.  The sale is zoned "Rural".  There is a gentle fall from the west from the road.  Good access is available from Cedar Creek Road which is bitumen sealed.  Services available include electricity and telephone.  The sale is smaller in area but has superior access and topography to either of the subjects.  The sale sold in September 1995, for $89,500 which, after allowing for improvements, provided an unimproved value of $78,000.  Overall the sale is seen as inferior to the subjects.

Decision:

I turn first to the matter of the nature of the land.  Following the site inspection I would agree with the parties that the land is steep and very difficult to access in many places.  The subjects have little capacity for anything other than use as two rural homesites.  The very difficult country, the heavy timber and noxious weed infestations in effect limit the current grazing activities to their present level which, as noted by the Land Appeal Court in Chief Executive, Department of Lands v. KW Whackett (AV93-163/64), 3 March 1995, to be reported, noted at page 17:

"It is apparent that, despite the genuine efforts made over a long period in grazing cattle upon difficult country, the evidence points to only a limited financial return being possible, even in reasonable seasons.  On Mr Whackett's own evidence, the land is stocked to capacity and will `never make a big profit'.  "

Considering the topography of the subjects I agree with the parties that the only feasible areas for use as homesites are near Shaws Pocket Road to the east of Lot 5V, and to the north-east corner of Lot 8V, near Buchback Road.
           In considering the most likely house sites on Lot 5V, I accept that the location of the old demolished house is one potential site, but feel that the land to the west of Shaws Pocket Road near the shed would provide a better location.  Consideration would need to be provided for in case of slippage from the steepest slopes behind the building area.  Views from either of those two sites would be towards the vegetation to the east of Rocky Creek.
           In respect of a possible house site on Lot 8V, I would lean towards Mr Olsen's view that the ridge line above the stockyards is the better location.  That site provides excellent views of the surrounding valley.  The selection of a house site will, of course, as noted by Mr Treston, be really a matter of "personal preference", but the evidence of past slippage near the stockyards should cause some concern for an owner.  In any event the cost of further roadworks within Lot 8V is really a matter for future development, and is not a matter for current consideration in determining the unimproved value.  But for the purpose of comparing Lot 8V to both Mr Frew's and Mr Treston's sales, I will consider the house site on the ridge line above the stockyards as the likely location.
           In considering the matter of access to the likely house sites on Lots 5V and 8V, I note that there is little extra cost involved on Lot 5V and some upgrading of the dirt track in Buchback Road to Lot 8V. In considering the difference in impact upon the subject and the sales, I note that access to both subjects is considerably easier than to either the "Rowe to Howard" sale, the "Hogan to Turner" sale, or the "Ireland to Lejo" sale.
           I turn now to the comparison of sales.  Both parties agree that the key sale is really the "Rowe to Howard" property.  Mr Frew sees the sale as superior to either Lots 5V or 8V, while Mr Treston sees the sale as comparable to Lot 5V and inferior to Lot 8V.  In considering the major features of the "Rowe to Howard" sale I note that the possible building site has excellent views, and is relatively gently sloping over the building area.  During the site inspection it became clear that Mr Treston had not fully investigated the sale, and was not fully aware of the extent of the higher land on the shelf in the centre of Lot 785, nor of the existing sheds erected by Mr Howard.  This shelf area is about 3 hectares in area, and there is a possible building site lower down the slope, but without the commanding views from the higher site.  In comparing the actual possible higher building site with those on Lots 8V and 5V, I find the sale is considerably superior to both.
           However, in gaining access to the better building site on the sale it would be necessary for the owner to spend considerably more in road construction than for Lot 8V, and certainly much more than on Lot 5V.  It is likely that the new owner considered such road costs when making his decision to buy the sale at $160,000.  In the end I believe a prudent purchaser would have paid that price realising he would have certain road costs to reach the better house site.
           I note that Mr Treston has concluded that Mr Turner will only use the sale as a "weekender" to get away from his home in Brisbane.  That may or may not necessarily prove to be true, for as Mr Treston noted "I haven't asked him this, but if he has bought it for a weekender, I don't think he intends to build a mansion there".  To assume the intentions of owners may often be unwise, and it is wiser to consider that in spending money to acquire property, purchasers tend to exercise reasonable prudence in making their decision.  Without evidence to the contrary, I must assume that Mr Howard was aware of the potential and limitations of the sale.  In this regard he may have considered the costs of road construction in his purchase, when he decided to pay $160,000 for the property.
           In respect of any new road to the better building site, I note that Mr Treston has located areas of slippage within Rowes Lane.  Any increase cost to overcome slippage in the road construction, is really a matter for the added value for the development of the sale, and not for consideration as part of the determination of unimproved value this time.
           Before comparing the "Rowe to Howard" sale on an unimproved basis, I turn to the matter of the provision of power to the sale.
Mr Olsen argues that in paying $17,000 for the cost of bringing power to the Rowe to Howard sale, the value of that "power" service should be an allowable deduction as an improvement to the sale. Mr Paterson argues that the provision of power services external to the sale is not an improvement to the sale in terms of the definitions of the Valuation of Land Act. Mr Paterson seeks support for his contention in the findings of the Land Appeal Court in PH Clough v. The Valuer-General (1981-82)(LAC) 8 QLCR 70, at page 73:

"A road, or service (sewerage, water or electricity) are not in the strict legal sense appurtenant to a parcel of land.  They do not belong to it as a property right.  They do not pass with it as an appendage to its ownership.  In point of fact the land in the road is owned by the Crown.  Similarly the wires, pipes or drains exterior to the parcel (and in some cases within the boundaries of the parcel) are owned by the relevant service authority.

No improvement which is not on the subject parcel or strictly appurtenant thereto can be considered an improvement for the purposes of section 12 of the Valuation of Land Act. "

That decision is also supported by the evidence of Mr Treston who found, on advice from SEQEB, that the poles and powerlines external to the sale remain the property of SEQEB.
           In seeking to further understand this matter I note that the meaning of "improvements" is defined in s.6(1) of the Act:

"6.(1) `Improvements' means, in relation to land, improvements thereon or appertaining thereto, whether visible or invisible, and made or acquired by the owner or the owner's predecessor in title ---".

In the matter of whether the external power services could be defined as "appertaining" to the land, I note the words of Gibbs J. in the High Court decision of Brisbane City Council v. The Valuer-General for the State of Queensland (1977-78) 140 CLR 41 at pages 50-51:

"These provisions --- indicate what tests should be applied in deciding what is an improvement for the purposes of the valuation.  In the first place an improvement in relation to land must be "thereon or appertaining thereto".  This means that the improvements, if not on the land, must be "such as are in the strict legal sense" "appurtenant to the property and incidental to its ownership" (McDonald v. Deputy Federal Commissioner of Land Tax (NSW) (1915) 20 CLR 231 at p.234). "

Gibbs J also followed the findings in Morrison v. Federal Commissioner of Land Tax (1914) 17 CLR 498, where Griffith C.J. said at p.503:

"Any operation of man on land which has the effect of enhancing its value comes within the definition `improvements'."

The matter upon which Mr Olsen would appear to rely is in the application of the word "appurtenant" to the sale.  There is no doubt that a site, where power is readily available, is likely to have a higher value to a purchaser than one where there is no power available.  That principle is clearly understood when considering the matter of the provision of "headworks" charges to future subdividable land.  In such matters, the cost of providing the headworks charges is added to the unimproved value of the bare land.  Where in globo land is acquired by developers, without the "headworks" charges being paid by the vendor, a lesser amount changes hands for the property as the developer understands that he will later have to pay the "headworks" charges to the local government.
           In understanding the legal meaning of the word "appurtenant" I note that Strauds Judicial Dictionary Fourth Edition, reports that "appurtenant" cannot relate land to land, but may include incorporeal, heredity hereditaments such as rights of way.  (Lister v. Pickford 34 LJ Ch 582). In that sense the word has the meaning of "usually enjoyed with". The meaning is also defined in Butterworths Words and Phrases Legally Defined, Third Edition, as it relates to corporeal hereditaments, "to extend only to land or buildings within the curtilage of the principal subject matter.  (Methuen-Campbell v. Walters (1979) 1 All.ER 606 at 620, CA per Buckley LJ.
           In applying those principles to the matter of whether the external "power" services are improvements to the Rowe to Howard sale, I believe the finding of the Land Appeal Court in Clough v. The Valuer-General supra at p.75 clarifies the matter.

"We think it beyond doubt that what has to be valued is the subject parcel of land viewed as if the improvements thereon, visible or invisible, never existed but that otherwise the parcel was situated in the community (and environment) with the amenities and facilities that had grown up around it as at date of valuation.  "

When Mr Howard purchased the land at a price of $160,000, as a prudent buyer, he should have recognised that the sale was then in effect a property with power available.  Had that not occurred he is likely to have sought a further reduction in the price to allow for his having to pay to bring power to the site.  On that basis I agree with Mr Treston that the $17,000 paid by Rowe would not constitute an improvement to the sale in terms of the Act in respect of the price of $160,000 paid by Howard.
           In seeking some analogy to support Mr Olsen's claim that the external power service should be treated as improvements appurtenant to the sale, I note also the findings of the Land Court in Capricornia Coal Management Pty Ltd v. Chief Executive, Department of Lands (SL12/44687 and others), 30 June 1993, unreported.  In that matter the external costs incurred by the appellant in providing infrastructure for the town of Middlemount, were not allowed by the learned Member, now President, as legitimate costs of improvements to the leases.  The appellant argued that, but for the company building the infrastructure, the services would not be available to the leases being determined.  There is an analogy with the provision of power to the sale in the current matter.
           In the Capricornia Coal case, the learned Member drew analogy with Tetzner v. Colonial Sugar Refining Company Limited (1958) AC 50, where the sugar company sought to deduct from the valuation the costs of surrounding developments for which they had paid. The Privy Council concluded at page 443 that the land "must be valued in the community in which they are situated, with the amenities and facilities which have grown up around them".
           In the end the Capricornia case provides no support for Mr Olsen and I am persuaded by Mr Treston's argument in respect of the provision of power to the sale.  On balance I believe the Rowe to Howard sale is a superior lot to either Lots 8V or 5V.
           I turn then to the comparison with Mr Treston's Sale 2, and note that was purchased by an adjoining owner (Lejo Holdings) who has plans for the development of that adjoining land together with Sale 2.  The developer has ridgeland running for about 8 kms from Sale 2 to Tamborine Mountain and apparently, in Mr Olsen's opinion, Sale 2 was acquired in order to provide some bargaining capacity to negotiate with the Council for ridgeline for a fauna corridor in exchange for development approval of land in the valleys for rural residential purposes.  There would appear to be some evidence that public statements to that effect have recently appeared in the local press.  On balance I find that to be a reasonable statement of reasons for the sale, and would exercise some caution in respect of the weight to apply to Sale 2 for that reason.  The very steep and heavily timbered nature of Sale 2 supports such a conclusion.
           In the comparison with Mr Treston's Sale 3 I note that the property has only an area of 2 hectares.  I agree with Mr Olsen that it does not help me much in respect of the subjects, as Sale 3 is likely to attract a very different type of market to the subject.
           That then leads to the comparison of Mr Frew's Sale 2 (Hogan to Turner).  I note that he has sought to compare the "improved" Sale 2 with the "unimproved" subjects.  In so doing Mr Frew has sought to determine the added value of certain improvements, some of which are challenged by Mr Treston.  A comparison of their analyses of improvements reveals:
           Mr Frew   Mr Treston                  

Dwelling  $ 40,000  Dwelling            $10,000
           Power  $  8,000  Tanks                $ 3,000
           Access road                $  8,000  Access track        $ 4,250
           Clearing  $  2,000  Fencing & clearing $ 4,000
           Fencing  $  4,000  $21,250
  $ 62,000

In seeking reasons for the difference between the valuers, I note that Mr Frew has depended almost entirely upon the experienced advice of Mr Whackett and Mr Olsen in arriving at the added value of the improvements.  Under examination he was unable to supply details of his method of determining the quantum of costs for fencing, clearing, power supply and roadworks, but felt that the experience of Mr Olsen in those matters was most reliable.  Mr Treston by contrast had sought to scale the extent of fencing from a map, and, while unsure of the actual extent and nature of the fencing, had allowed $4,000 "to be fair to the analyses".  His estimate was on the basis of a half share of fencing for about three-quarters of the boundary.

On the basis of his conclusion that powerlines remain the property of SEQEB, Mr Treston has not allowed any improvements for power to the housesite.  However, when comparing an improved site I believe it would be appropriate to deduct the cost of extending power from the boundary of the sale to the housesite, and I will adopt Mr Frew's estimate of $8,000 for the comparison.  In respect of the access road to the housesite on the sale, I believe Mr Treston's estimate, which allows a half share of costs and maintenance over the first 600 metres in the easement, is probably the more reliable.
           This then leads to the matter of the added value of the dwelling upon the sale.  While I note Mr Olsen's unsubstantiated claim that a finance organisation had previously extended credit to the previous owners for the purchase and later improvements to the dwelling, in my opinion that does not necessarily mean that the added value of the old dwelling at the time of sale to Turner was greater than the $10,000 supplied by Mr Turner to Mr Treston. Under cross-examination, Mr Frew agreed that when he inspected the dwelling certain further improvements had been undertaken by Turner, and Mr Frew agreed that he could not discredit Mr Treston's estimate.  On the evidence I will accept $10,000 as the added value of the house at the date of sale to Turner.
           In summary, I believe the improvements applicable to the Turner sale are:

Dwelling  $ 10,000
           Power  $  8,000
           Access Road               $  4,250
           Clearing and
             Fencing  $  4,000
           Tanks  $  3,000

TOTAL          $ 29,250

Giving an analysed unimproved value of the sale at $132,000 less $29,250 = $102,750.
           However, in coming to this figure for the sale, I note Mr Treston's concern that the use of improved sales, where unimproved sales are available, is not the preferred method of comparison.  I note also in PH Clough v. The Valuer-General supra, that the Land Appeal Court found at page 76:

"It has been judicially laid down many times and in many jurisdictions that in ascertaining unimproved value, sales of unimproved land of comparable quality, situation, etc., to the subject parcel, if they are available, are to be preferred as the best guide for arriving at unimproved value.  The reason is obvious.  In applying such sales there is no room for error in analyzing the value of improvements.  "

Because there is less room for difference of opinion as to value of the various items of improvement and comparison is thus simpler, it has been held that highly improved sales should be avoided in preference to sales comprising a lesser degree of improvement.  "

That approach was also followed in AC and AA Ussher v. The Valuer-General (1986-87) 11 QLCR 169. In that matter the appellant had argued that the appropriate method should be to determine an improved value and then deduct the value of improvements to arrive at an unimproved value. The President said at page 176:

"I am unable to accept this submission.  Courts of the highest authority in many cases have approved the method of valuation whereby analysed sales of comparable lands are used as a basis for comparison with the subject land, in order to determine an unimproved value.  Valuation textbooks support this approach.  "

Summary:

In comparing Lot 8V to the Rowe to Howard sale I believe the sale is superior, inspite of the additional costs of roadworks to the preferred building site on the sale.  The parties agree that the sale has an unimproved value of $135,000, although Mr Treston in hindsight, believes that is a generous allocation.  He had valued it as a "powered" site at $152,000.
           In seeking to establish relativity between the Rowe to Howard sale and Lot 8V, I note the analysed unimproved value of the Hogan to Turner sale at $103,000.  From the field inspection I believe the building sites on Lots 8V and the Turner sale are comparable but roadworks internally to Lot 8V would be less expensive to construct and maintain.  I believe Lot 8V is superior to the sale.  On balance I believe a figure of $125,000 would be appropriate for Lot 8V.  That the figure is the same value as determined by the Land Appeal Court previously is entirely coincidental.
           In seeking to determining the value of Lot 5V, I note that the parties, and the Land Appeal Court have all agreed that Lot 8V is the superior lot.  The Chief Executive has set the relativity of Lot 5V to Lot 8V at 81% of Lot 8V.  Mr Olsen argues the relationship should be 64%.  From the field inspection I believe Lot 8V is considerably superior as a rural homesite to Lot 5V, and will accept Mr Olsen's comparison.

Conclusion:
           After having considered the whole of the evidence I am persuaded that the appellants have proved their cases, and the relative values are out of line with the sales evidence.  My decisions are as follows:

Appeal AV96-61 -The appeal is upheld, the Chief Executive's valuation is set aside, and the unimproved value of Lot 2 on RP 47469 is determined at $80,000.             

Appeal AV96-62 -The appeal is upheld, the Chief Executive's valuation is set aside, and the unimproved value of Lot 2 on RP 144905 is determined at $125,000.

(NG Divett)       
  Member of the Land Court