Wickham Industries Pty Ltd v Department of Natural Resources and Water
[2006] QLC 70
•27 October 2006
LAND COURT OF QUEENSLAND
CITATION: Wickham Industries Pty Ltd v Department of Natural Resources and Water [2006] QLC 70 PARTIES: Wickham Industries Pty Ltd
(appellant)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NO: AV2005/0848 DIVISION: Land Court of Queensland PROCEEDING: An appeal against an annual valuation of land under the Valuation of Land Act1944. DELIVERED ON: 27 October 2006 DELIVERED AT: Brisbane HEARD AT: Toowoomba MEMBER: Mr RS Jones ORDER: The appeal is dismissed. CATCHWORDS: Unimproved value of land – Valuation of Land Act 1944 – presumption of correctness – onus of proof – reliable sales evidence – vegetation management issues. APPEARANCES: Mr D Eather, for the appellant
Mr M Heather, Senior Legal Officer employed by the respondent
Wickham Industries Pty Ltd, the appellant, has appealed against the unimproved value applied to its land by the Chief Executive Department of Natural Resources and Water, the respondent to the appeal. The valuation appealed against is $167,500. The estimate of the unimproved value contended for by the appellant is $90,000. The relevant date for the valuation is 1 October 2004, effective 30 June 2005.
The appellant was represented by Mr Eather, a Director of the appellant company. Mr Eather was also the only witness called on behalf of the appellant. The respondent was legally represented by Mr Heather, a senior legal officer employed by the respondent and relied on the evidence of Mr B Taylor, a registered real estate valuer employed by the valuation firm JD Dodds.
The subject land adjoins a parcel of land owned by Mr Eather and his wife and that land is also the subject of an appeal against the unimproved value applied to it.[1] The grounds of appeal are identical in both appeals and Mr Eather represented himself and his wife in their appeal and was the only witness called. In such circumstances, it is not surprising that the issues and findings in both appeals are materially the same.
[1] Eather v Department of Natural Resources and Water (2006) QLC 0071
Issues in the appeal
The subject land is situated on the corner of Mardon Road and Bracker Road, about 4 kilometres southwest of the Warwick Post Office and is more properly described as Lot 2 on Registered Plan 146443 Parish of Rosenthal, County of Merivale. The land is 23.04 ha in area and is designated "Residential" under the town plan for the Warwick Shire. As at the date of valuation the land was being used as a large rural residential house site.
It had been the intention of Wickham Industries and Mr and Mrs Eather to, consistent with the zoning of their land, jointly develop both lots for smaller lot residential purposes. However, the evidence of Mr Eather was that any subdivision of the land was effectively prevented because of restrictions on clearing imposed over both blocks. According to Mr Eather, both are recorded by the respondent and/or the Environmental Protection Agency as containing areas classified "Remnant Endangered Regional Ecosystem". This evidence was not seriously challenged by the respondent.
The respondent, through Mr Taylor, responded to the case put forward on behalf of the appellant by pointing out that the subject land was valued in accordance with the provisions of s.17 of the Valuation of Land Act 1944 (VLA). Relevantly, s.17 effectively requires the respondent to value the land on the basis of its highest and best use being for one large home site. This requires the respondent to ignore any added value the land might have because of any potential for a higher order of use such as small lot subdivision. As I understand the evidence of Mr Taylor about this, because of the requirements of s.17 of the VLA he only had regard to sales of larger parcels of land which, according to him, were purchased for rural residential type uses regardless of their zoning. Most of his sales were zoned Rural however some were also zoned Residential.
Mr Eather contended that even on the approach adopted by Mr Taylor the subject land was still overvalued because the limitations on clearing and associated maintenance costs were not sufficiently taken into account. In this context the appellant primarily relied on the first two grounds of its notice of appeal which provide:
(i) (The valuation) is unfair and unreasonable.
(ii)The valuation does not take account of appropriate comparison (sic) sales and has been based on inappropriate sales.
Consistent with s.3(1)(b) of the VLA, the land was valued by the respondent on the basis that the improvements on it did not exist. Importantly, pursuant to s.33 of the VLA, the valuation appealed against is deemed to be correct and therefore the appellant bears the burden of proving that it is wrong. Generally speaking, the presumption in favour of the correctness of the statutory valuation may be rebutted where it can be shown that it was based on the application of a wrong principle and/or involved a significant error of fact and/or was arrived at by a fundamentally erroneous method.[2] Also of relevance in appeals such as this is that pursuant to s.45(4) of the VLA the appellant is limited to the grounds stated in its notice of appeal and bears the burden of proving each ground of appeal relied on.
[2]Brisbane City Council v Valuer General (1978) 140 CLR 41 at 56-57: see also G Cominos & Co Pty Ltd v Chief Executive, Department of Lands (1996-97) 16 QLCR 331 at 311-332 (LAC).
The sales evidence relied on by Mr Taylor consists of five sales which occurred prior to 1 October 2004 and three which occurred after that date. Overall, I am of the opinion that the after date sales are of limited assistance in the circumstances of this appeal. I have reached this conclusion for the following reasons. First, no reliable evidence was given as to how (if at all) the market had changed between October 2004 and the date of these sales. Second, no explanation was given for the wide discrepancy between the "applied" and "analysed" unimproved values attributed to the land in Newby Street. In any event, as I understand the evidence of Mr Taylor these after date sales did not really add much to the evidence of value established by his first five sales.
The evidence of Mr Taylor was that none of the sales relied on by him were affected by vegetation management and clearing issues. However, in this context it was Mr Taylor's evidence that he knew about the vegetation management issues affecting the subject land when he valued it and that the restrictions raised by the appellant did not affect or alter his comparison of the subject with his sales evidence. It was also his opinion that there was no market evidence to suggest that the market value of rural residential blocks was materially affected by those restrictions.
I must say that I had some reservations concerning Mr Taylor's evidence about this issue when I first heard it. My initial reaction being that if all things were otherwise equal in respect of two parcels of land the one with vegetation management issues might be expected to attract a lower price. However, at the end of the day, there was no serious challenge to the expert evidence of Mr Taylor about this and the appellant did not refer me to any sales evidence which supported the level of value contended for by it or which tended to undermine the level of value contended for by the respondent.
In the circumstances of this appeal, I have reached the conclusion and so find that the appellant has failed to prove that the valuation appealed against is wrong and ought be varied. Accordingly, the appeal must be dismissed.
Order
The appeal is dismissed.
RS JONES
MEMBER OF THE LAND COURT
2
0