Whalen v Chief Executive, Department of Natural Resources

[1997] QLC 78

[1997] QLC 78

 

  LAND COURT

BRISBANE

30 MAY 1997

Re:                 Determinations of Unimproved Value -
  Gold Coast City Council (Albert Division) -
  (V96-10, V96-11 and V96-12).

PR and BM Whalen
  v.
  Chief Executive, Department of Natural Resources
  (formerly Department of Lands)

D E C I S I O N

Three appeals have been filed by the abovementioned landholders against the determinations of unimproved value made by the respondent Chief Executive each as at a relevant date of 30 June 1993.  Details as to the real property description of the land, its area, the Chief Executive's valuation, and the appellants' valuation are:

Ref V96-10 -Lots 3 and 4 on RP 8054 and Lot 2 on RP 8056, Parish of Boyd - 20.472 ha - Chief Executive's valuation $165,000 - appellants' value as contained within the notice of appeal $100,000 for all three parcels under appeal.

Ref V96-11 -Lot 5 on RP 8054, Parish of Boyd - 4.831 ha - Chief Executive's valuation $65,000 - appellants' valuation as contained within the notice of appeal $100,000 for all three parcels under appeal.

Ref V96-12 -Lot 1 on RP 8056, Parish of Boyd - 2.833 ha - Chief Executive's valuation $75,000 - appellants' value as contained within the notice of appeal $100,000 for all three parcels under appeal.

The parcels adjoin, and are situated at 91-91A Station Road in the location of Bethania, approximately 7 km north-west of the Beenleigh Central Business District.  Each parcel is zoned "Rural C" under the Albert Shire Council Town Planning Scheme which was gazetted on 19 March 1988, and under the 1988 Albert Shire Council's Strategic Plan each parcel has been classified "Open Space" as preferred future dominant land use.
Before proceeding to outline the evidence presented by Peter Robert Whalen in support of the appeals, I should briefly outline the circumstances leading up to the issue of the valuations under appeal. In former times, all three of the subject land parcels had been valued by the Chief Executive as one parcel and under the provisions of s.17(1) of the Valuation of Land Act as land used for the purposes of farming. A review was made by the Department on the valuations of lands made under that section within the Local Authority area, and as a result the Department decided to withdraw the protective provisions of s.17(1) of the Act to the valuation of the subject land and to value it as a rural homesite. But when the property was inspected by a senior valuing officer within the Department (a Mr Woolard), it was noticed by him that there were three dwelling-houses on the property. The Chief Executive considered that each of the houses were adapted to separate occupation, and as a result, the valuations which are now under appeal issued in accordance with the provisions of s.34(2) of the Valuation of Land Act, so as to provide that there is one house on each of the three parcels, and each parcel is valued as a large rural residential homesite.
It may be helpful, especially for the appellants, if the relevant part of s.34 of the Act be inserted in this decision. It reads:

“34.(1)Unless the chief executive otherwise directs, there shall be included in 1 valuation -

(a)several parcels of land which adjoin, and are owned by the same person, and where either no part is leased or all the parcels are let to 1 person;

(b)several parcels of land in the same area which do not adjoin but are worked as 1 holding and used exclusively for the purposes of farming, and are owned by the same person and which, if let, are all let to 1 person.

(2)  However, any such parcels of land shall be valued separately if buildings are erected thereon which are obviously adapted to separate occupation and which may respectively be lawfully held under separate ownerships.”

Now although each Notice of Appeal contains a ground that if the appeal for reinstatement of the concessional valuation is unsuccessful, then the appellants contend that the valuations under appeal are too high based on an independent valuation they obtained from Mr ID Clarkson who was a registered valuer with the firm RS Melloy Pty Ltd. More about the valuation soon. But it should be said here that in these cases, the appellants have withdrawn their contention that the subject lands should have been concessionally valued under s.17(1) of the Valuation of Land Act as land used for the purposes of farming consequent upon a decision of this Court (V95-17) which disallowed an appeal by them against the decision by the Chief Executive to remove the concessional valuation as at the same relevant date for valuation purposes in this case - viz 30 June 1993.
           Mr Whalen told us that the subject parcels have been in the ownership of his family for many years.  He produced in evidence a map of the land showing in some detail the boundaries of the various lots, the location of the improvements (dwelling-houses, sheds, cattle yards), an irrigation dam, and the extent of inundation in the 1977 flood from the Logan River to which the subject aggregation has a frontage.
           Now Mr Whalen submitted in evidence that the old original house on the property is  constructed on Lot 1 on RP 8054, about 100 years ago, the house in which the appellants reside is constructed on Lot 5 on RP 8056, and the house in which his son resides was constructed, at his son’s cost, on Lot 2 on RP 8056 during 1994.  Mr Whalen tendered in evidence a copy of a document titled “Approval Conditions for Single Dwellings, Additions and Outbuildings” from the Albert Shire Council which confirms the 1994 construction of the appellants’ son’s house, indicating that the footings were laid on 15 June 1994, gives subsequent dates for the laying of the slab, the erection of the frame, with the final date of construction of the building being 4 August 1994.  Mr Whalen told us that his son has occupied the house on Lot 2 since September 1994.
           The valuation of the subject property as made by Mr Clarkson is in evidence.  It is dated 5 March 1992 and it was made to assess the then market value of the property for mortgage security purposes.  Mr Clarkson has valued the land (presumably including the improvement of clearing) to a stage where it is now virtually stump free, in comparison with heavy standing original scrub, as follows:
           Lot 5  $50,000
           Lots 1 and 2  $125,000
           Lots 3 and 4    $50,000

Total Land Value  $225,000

The Court cannot be influenced by this valuation.  Firstly, it relates to a point in time well prior to the relevant date for valuation in these appeals, and secondly, and perhaps more importantly, Mr Clarkson was not called in evidence to support his valuation, and accordingly no opportunity was given for the respondent Chief Executive, or for that matter the Court, to examine the basis for his valuation.
Mr Whalen claimed in evidence that the valuation of the appellants’ property was excessive, when taken as an aggregation, when compared with the Chief Executive’s valuation of a neighbouring property for $135,000. But it transpired later in the Chief Executive’s evidence that this property, described as Lot 1 on RP 855427 containing an area of 33.59 ha, was valued under the provisions of s.17(1) of the Valuation of Land Act as land used for the purposes of farming since it was used for pig farming.
Called in evidence by the respondent Chief Executive was Arend Boudewyn Van Hees who is a registered valuer in his employ. Mr Van Hees explained that he was not the valuer originally responsible for the valuation assessments. However, following an inspection of the property, he was responsible for the decision to create the three parcels in accordance with s.34(2) of the Valuation of Land Act 1944 as there were three dwelling-houses on the appellants’ property. Mr Van Hees tendered valuation documents with his description of the nature of the land, its use, and details as to the improvements. I do not propose to include these details here as this information is in the hands of the parties for reference, and no challenge was made to it by the appellants.
           Mr Van Hees supports the valuations under appeal with reference to four sales of rural homesites.  Again, this information is in the hands of the litigants, and I again do not propose to refer to it in this decision.  Suffice it to say that Mr Van Hees’ sales evidence is the only relevant sales evidence before the Court and prima facie it supports the valuations under appeal made as large rural homesites.  I say relevant because Mr Clarkson did tabulate in his valuation document two sales of vacant rural homesites in Weaber Road, Waterford, which appear to have no river frontage, and which took place respectively on 15 April 1991 and 1 August 1991 and accordingly well prior to the relevant date for valuation in these cases.
The valuations under appeal issued on 9 December 1994, and the date of effect of the valuations was 30 June 1994. Now it is clear that the appellants’ son’s house was not erected as at the relevant date of valuation (30 June 1993), and as aforementioned, was not completed until August 1994, and not occupied by the appellants’ son until September 1994. Now the Court expressed some doubt as to whether the respondent Chief Executive was entitled to value Lots 3 and 4 on RP 8054 and Lot 2 on RP 8056 (upon which the appellants’ son’s dwelling-house was subsequently erected) by creating a separate parcel. Counsel for the Chief Executive thought there was authority for him to consider the use of the land between the relevant date of the valuation (30 June 1993) and the date of issue of the valuation (9 December 1994) when a decision is to be taken as to whether the provisions of s.34(2) of the Valuation of Land Act are applicable to a valuation.  It was accordingly left open for Counsel to make a submission in writing to the Court on the point, and to provide the appellants with a copy of that submission.  It has been received, and the appellants have also made a written submission.
Mr Whalen’s response to the written submission by Counsel for the Chief Executive largely reiterates evidence already before the Court. It is understandable that the appellants are not in a position to reply to the legal submission in respect to the application of s.34(2) of the Valuation of Land Act 1944.
           The Chief Executive submits that the normal sequence in which valuation dates occur for annual or general valuations is the date of valuation, the date of issue of the valuation, and the date upon which the valuation takes effect.  But since the subject valuations are interim valuations, the date of effect (30 June 1994) is well before the date of issue of the valuation (9 December 1994).  It is accordingly submitted by the Chief Executive that this appears unfair and anomalous as the circumstances leading to the more onerous classification (the creation of the parcels) consequent upon the discovery by the valuer of the three occupied dwelling-houses, did not occur until after the nominated date of effect for the valuation.  It is further submitted by the Chief Executive that a land owner should not be rated at a higher figure for any period when the circumstances justifying the higher valuation did not yet apply.
           As a result, the Chief Executive has reconsidered the appropriate date of effect for the current valuations, and has decided that the new correct effective date is the date upon which the occupied houses were discovered to exist by the Departmental valuer (23 November 1994).
           The next step, in the Chief Executive’s submission, is to decide whether it is appropriate to consider the existence of the son’s dwelling-house (occupied from September 1994) in making the valuations under appeal.  He says it is appropriate, and quotes the judgment of the Land Appeal Court in Re: Walker v. The Valuer-General (1978) 5 QLCR 347 at p.349 to support the view that the appropriate period during which it is competent to consider the use of land for Valuation of Land Act purposes begins on the date of valuation (30 June 1993) and ends on the date of issue of the valuations (9 December 1994). 
           Now the judgment of the Land Appeal Court in Re: Walker did not involve a decision by the Chief Executive to create a parcel under s.34 of the Valuation of Land Act. That Court was concerned with the application of s.11(1)(vii) of the now repealed Valuation of Land Act insofar as the use of land for the business of primary production.  Nonetheless, I adopt the Chief Executive’s submission that Walker is an authority empowering the Chief Executive to have regard to the use of land as between the relevant date for a valuation and the date of issue of a valuation for the purposes of the application of s.34(2) of the Act. It follows then, that the valuations under appeal as separate parcels are not ultra vires s.34(2) of the Act.
Now it is contended by the Chief Executive that the appellants will be assisted rather than prejudiced by the suggested change in the date of effect of the valuations. Be that as it may, the Court’s function is only to determine unimproved value as at the appropriate relevant date. Upon my consideration of the evidence, I cannot but conclude that the subject valuations as rural homesites are supported by the relevant evidence, and that the onus resting upon the appellants under the provision of s.56(2) of the Valuation of Land Act has not been discharged.
           In the result then the following determinations are made:

V96-10 - The appeal is dismissed, and the unimproved value of Lots 3 and 4 on RP 8054 and Lot 2 on RP 8056, Parish of Boyd, as determined by the respondent Chief Executive in the sum of One Hundred and Sixty-five Thousand Dollars ($165,000) is affirmed.  Date of effect of valuation 23 November 1994.

V96-11 - The appeal is dismissed, and the unimproved value of Lot 5 on RP 8054, Parish of Boyd, as determined by the respondent Chief Executive in the sum of Sixty-five Thousand Dollars ($65,000) is affirmed.  Date of effect of valuation 23 November 1994.

V96-12 - The appeal is dismissed, and the unimproved value of Lot 1 on RP 8056, Parish of Boyd, as determined by the respondent Chief Executive in the sum of Seventy-five Thousand Dollars ($75,000) is affirmed.  Date of effect of valuation 23 November 1994.

CH CARTER
  MEMBER OF THE LAND COURT