Wiggins v The Valuer-General

[1992] QLAC 46

[1992] QLAC 46

 

LAND APPEAL COURT,

BRISBANE

November, 1992.

Re:Appeal against determination of the Land Court - Valuation of Land Act 1944

AV91-1072.

Roy F and Edna A Wiggins v.

The Valuer-General

J U D G M E N T

Mr and Mrs Wiggins have appealed against the decision by the Land Court to dismiss their appeal against the determination by the Valuer-General of an unimproved value of $85,000 on the parcel of land situated at 34 Bayside Drive, Beachmere, which has erected upon it a dwelling house occupied by them. The relevant date for the annual valuation assessment is 31st March, 1990. The appellants contended before the Land Court that the unimproved value of their land should have been determined at "$78,000 or less."

The grounds of appeal in the notice of appeal to the Land Court are -

"Lots are being sold in Bayside Drive on a 1919 subdivision showing 1,012 square metres. Why so? Several of these lots (including mine) has been reduced in size by sea erosion to approx 800 square metres. It is necessary to put up barriers of rocks and build walls etc to stop further erosion, an extra expense to those affected by sea erosion (upkeep every 2 years). Yet other lots in the same street do not have this problem and have their 1,012 square metres as per contract and R.P. and yes have the same valuation. Recent sales show 1012 square metres on the contracts and recent buyers do not realise that the amount of sea erosion is 10m x 20m 1/5 of the original R.P. I am (paying rates) valued on land that does not exist, and is not reclaimable (Primary Industries Dept). An erection of rock wall to combat waves and erosion has cost me

$4,000 approx. Surely all these factors should be taken in consideration. 800 sq metres cannot have the same valuation as 1012 s.m. especially as the V.G. has inspected the properties in the same street. "

Under section 16J of the Valuation of Land Act 1944, an appeal to the Land Court is limited to the grounds stated in the notice of appeal and the burden of proving any and every such ground shall be upon the owner. In proceedings before this Court the owner is limited to the grounds stated in the original notice of appeal and cannot rely upon evidence relating to matters not referred to in the notice of appeal (Franklin v. The

Valuer-General (1978) 5 Q.L.C.R. 181 (L.A.C.); Pratt v. The Valuer-General (1981/82) 8

Q.L.C.R. 145 (L.A.C.)).

The subject allotment is one of a number of allotments created in a subdivision in 1919. Titles which have issued show the area of the subject land and a number of other allotments at 1012 square metres. With the passage of time erosion has reduced the area of the exposed land in the subject allotment and some other allotments fronting the sea to approximately 800 square metres. As appears in the record below and in the decision of the learned Member, Mr Wiggins constructed a rock wall to restrict the erosion and this requires additional rock fill about every two years. Mr Wiggins says that he has calculated his valuation of $78,000 on a square metre basis believing that his valuation should be less than the valuation on a block with an area of 1012 square metres.

Evidence for the Valuer-General in the Land Court was given by a valuer, Mr

C.J. Eaton. Mrs Cawley was the valuing officer of the Department responsible for this valuation. She is no longer with the Department but, in her absence, Mr Eaton has perused the record of the data used by her to arrive at this valuation and her notes on conversations she had with some of the parties involved in the sales. It was Mr Eaton's valuation report which was tendered in the Court below and his evidence on which the Valuer-General relied in these proceedings.

The appellants provided no sales evidence to support their contention that the subject land is overvalued. The Valuer-General relied on two sales of unimproved land to support his valuation. First, there is a sale of a parcel at Bayside Drive from Stock to Spalding of a 1012 square metre parcel for $92,500. The date of the contract of sale was 18th April, 1990 and the date of settlement of the transaction was 18th May, 1990. It is separated by one allotment from the subject land. In Mr Eaton's opinion, it shares with the subject land excellent views over Deception and Moreton Bays to Moreton Island and the peninsula area, with the rear of the site adjoining Deception Bay being subject to erosion. It was considered by Mr Eaton to be comparable to the subject land. It has been valued in the revaluation at $85,000.

The second sale, also in Bayside Drive, was from Briscoe to Seyfert of a 1012 square metre parcel on 5th March, 1990 (the date of the contract), with the date of settlement being 4th April, 1990, at $95,000. Unlike the subject land and the Spalding land, the sale land does not have an absolute water frontage but is separated from the Bay by the Esplanade. It is considered by Mr Eaton to be fairly comparable to the subject land, it has broken views through vegetation on the Esplanade over Deception and Moreton Bays to Moreton Island and the peninsula. The Valuer-General has applied a value of $85,000 to this allotment in the revaluation.

The main thrust of the argument before us from Mr Wiggins is that, because this sale to Seyfert was not completed until 4th April, 1990, the Valuer-General would have had no knowledge of this sale at the date of valuation on 31st March, 1990. He has sought opinions from a solicitor and from the Real Estate Institute of Queensland which, he says, confirms his opinion.

The answer to the appellants' argument is found in the relevant statutory provision and in departmental practice.

Section 16B of the Valuation of Land Act 1944 provides for the Valuer-General to

make annually a valuation of all lands in the Area. Subsection (3) states:

"An annual valuation shall be made as at a date fixed by the Valuer-General in respect of that annual valuation, which date may but need not be within any particular period." (see also section 22(2)).

For present purposes, the date fixed for the annual valuation was 31st March, 1990. The valuation was not to be made "at" (or on) that date but "as at" that date. In other words, the Valuer-General was not obliged to make the valuation on that date, but was obliged to determine what the unimproved value of each block of land was at that date. In making the valuation he could have regard to sales of comparable blocks of land at or about that date. The Act does not oblige the Valuer-General to consider only sales prior to or on that date and ignore proximate but after date sales which help to provide a basis for assessing the value of a particular block at that date.

In evidence before us, Mr Eaton explained that the procedure in a revaluation is to establish values looking into the market evidence some three to six months prior to the date of valuation and to continue to review any market evidence that comes in following that date of valuation. The actual production of the valuation for the Caboolture Shire took place through May to September and October of 1990. Valuers take into account all sales before the date of valuation and also try to review as many as possible of the sales which occur on or about, or just after, the date of valuation to obtain a full grasp of market trends.

It is really the submission of Mr Wiggins that the Valuer-General has erred in using this sales evidence because the Valuer-General was not aware of those sales until after the date of valuation of 31st March, 1990. The sales were not settled until after that date and should not be used.

The effective date of any sale is the date upon which the contract is signed. That is the date when the vendor and purchaser reach agreement. It is of no moment whether settlement of the transaction is deferred for some period. In the case of the sale from Briscoe to Seyfert, agreement was reached on 5th March, 1990, which is just prior to the date of valuation and it provides cogent evidence to support the valuation

applied. The sale from Stock to Spalding occurred on 18th April, 1990, which is only 18 days after the relevant date. In McCathie v. The Federal Commissioner of Taxation (1944) 69 C.L.R. 1, Williams J. at page 16 said -

"      Values must be calculated in the light of circumstances which existed on the material date, ...

but subsequent events can be taken into account in order to determine the proper weight to attach to such circumstances. Subsequent sales are just as admissible in evidence as prior sales, provided that in all the circumstances they are comparable. If between the material date and the date of the subsequent sale supervening events occur which alter the condition previously existing, the subsequent sales would not be comparable and would be useless. "

Here there is no evidence of any change in the market place in the short period of time involved and we find that the sale is a proper basis of valuation.

In the Court below Mr Eaton read from some notes Mrs Cawley had made of a conversation she had with Mr A. R. Spalding, one of the purchasers of a basic sale. Mr Wiggins produced in this Court a letter from Mr Spalding to the effect that he had no recollection of being contacted by a Departmental valuer and that he was not aware of any erosion problems at the time of purchase. Neither Mrs Cawley nor Mr Spalding have given evidence or been subject to cross-examination and it is impossible for this Court to reconcile the conflict between them. But leaving this sale aside there is cogent evidence before us in the sale from Briscoe to Seyfert for $95,000 which supports the valuation applied by the Valuer-General to the subject land.

Mr Eaton says that, when preparing the valuation of the Esplanade properties, Mrs Cawley and he were both aware of the extent of erosion along the frontage of these allotments and that the sales evidence on a site-to-site basis supports the valuation.

We are in agreement with the decision of the learned Member in the initial hearing that there is no valid basis for the estimate of $78,000 or less provided by the appellants. Because the appellants have not proved to us on the grounds of appeal that the Valuer-General has erred in the valuation, the appeal must fail.

Accordingly, the appeal is dismissed and the determination of the Land Court is affirmed.

J.

Judge of the Supreme Court

President of the Land Court

Member of the Land Court