Wong v Department of Natural Resources and Mines
[2005] QLC 15
•24 March 2005
LAND COURT OF QUEENSLAND
CITATION: Wong v Department of Natural Resources and Mines
[2005] QLC 0015PARTIES: Maria Su Ying Wong
(applicant)v.
Chief Executive, Department of Natural Resources andMines
(respondent)FILE NO.: AV2003/0401 DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under Valuation of Land
Act 1944DELIVERED ON: 24 March 2005 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Dr NG Divett ORDER:
The appeal is dismissed, and the unimproved value of Lot 3 on RP 85465 as determined by the Chief Executive in the sum of Two Hundred and Sixty Thousand Dollars ($260,000) is affirmed.
CATCHWORDS:
Practice and procedure – Appeal – Adequacy of grounds – Lack of specific detail – No disadvantage to the respondent – Jurisdiction found
1944 – Changes in value – Statistical analysis rejected.
Valuation – Statutory valuation – Valuation of Land Act considered.
APPEARANCES: Mr K Roethlisberger for the appellant.
Mr K Fisher, Crown Law, for the respondent.
Background:
[1] This matter relates to land at 11 Grove Street, Red Hill, and described as Lot 3 on RP 85465, Parish of Enoggera. The subject land has an area of 685 square metres, and is located about 3 kilometres radially north-west of the Brisbane GPO. Access is good to Grove Street, which is bitumen sealed with concrete kerbing and channelling. All normal urban facilities are available. The subject land is zoned Character Housing under the Brisbane City Plan 2000 of 30 October 2000, effective at the date of valuation of 1 October 2002. The key issues are the nature of the land, the impact of a sewer line, relativity and comparison of sales.
[2] On 24 February 2003, the Chief Executive issued a valuation for the subject land at $260,000. Following an objection the Chief Executive confirmed that figure on 10 June 2003. The appellant has now appealed, claiming the unimproved value should more properly be $231,533.
[3] Kurt Roethlisberger appeared and gave evidence for the appellant, his wife. Mr K Fisher, Counsel of Crown Law appeared for the respondent, calling evidence from Paul Leonard Mitchell, the departmental registered valuer now accepting responsibility for the valuation, which was originally prepared by another registered valuer who is no longer available to defend the valuation.
Jurisdiction -
[4] Before proceeding to hear the merits of the matter, Mr Fisher drew attention to his concern that the actual notice of appeal would appear to have been incomplete in explaining the facts upon which the appellant had appealed. Mr Fisher explains that although a decision that jurisdiction did exist had been made by the judicial registrar on 7 November 2003, that had dealt only with whether the appellant had provided a "reasonable excuse" for the late lodgement of the appeal. A subsequent examination of the stated grounds of appeal reveals that the attached letters only related to background for reasons for the late lodgement of the appeal.
[5] In explaining his concerns, Mr Roethlisberger had some apparent misunderstanding about the requirements of the Valuation of Land Act (the Act) in respect of responsibilities of an objector, and also later of an appellant, in meeting strict time constraints. He notes that while he had objected to the Chief Executive within the 42 days required under s.42 of the Act, the Chief Executive, in spite of correspondence suggesting that a reply to the objector would be made within 90 days (letter 13 March 2003), had in fact exceeded that period. Mr Roethlisberger argues that it is not fair, and asks that the matter be resolved in his favour.
[6] However it was explained to Mr Roethlisberger that the 90 day period suggested by the letter 01 13 March 2003, had in fact been an administrative decision, and such a time constraint is not enshrined in the Act, which merely directs in s.43 that a written decision of the Chief Executive would be provided "as soon as is reasonably practicable". There is a time constraint of 6 months required of the Chief Executive in respect of an objection under s.52 to a valuation other than an annual valuation (s.54(1)(A)), or one year in respect of a late objection lodged under s.52A (s.54(1)(B)). However neither of those time constraints relate to the current matter, and delays of the Chief Executive deciding on the objection have no relevance in this matter.
[7] Mr Fisher draws attention to the decision of this Court in AP and AS Moore v Valuer- General (1990) 13 QLCR 151, where the Member found that a lack of specificity in the grounds of appeal, and a failure to respond to a requisition from the Court registrar to clarify the grounds, resulted in that matter being struck out for lack of jurisdiction for the Court. However Mr Fisher agrees that perhaps the Court could exercise discretion in the circumstances of this matter, where jurisdiction had already been found to lie, by reference to the provisions of s.375(2) of the Uniform Civil Procedure Rules 1999, as conditioned by s.376. Mr Fisher also notes that approval to amend the grounds of appeal may be considered by the Court under guidance from the Land Appeal Court in Dawson v Chief Executive, Department of Natural Resources and Mines (LAC2002/0048), 31 March 2003, at paragraph [36]. In that matter it was found by the Land Appeal Court that power exists for "a party to amend a claim in the way and on the conditions the Court considers appropriate".
[8] In the current matter the key grounds of appeal relate to the impact of the sewer line, a fact known to the respondent well prior to the lodgement of the Notice of Appeal on 28 July 2003. In fact the appellant had written to the Chief Executive in his objection on 6 March 2003, explicitly detailing that issue (Exhibit 2, page 3). It was explained by Mr Roethlisberger that he had assumed that the respondent would have advised the Court of that letter, hence he had omitted it from the Notice of Appeal.
[9] Having now been informed of the separation of powers which distinguish the Court and the respondent department, Mr Roethlisberger now argues that the letter was intended to form part of the Notice of Appeal to the Court, and had been omitted as an oversight. As the respondent was not disadvantaged by that explanation, and as the letter explaining the basis of the appeal was noted on the Notice of Appeal Form 59, and was clearly intended to form the grounds of appeal, and as the letter of explanation of the sewer line impact was provided to the Court following the Court order of 27 October 2004, it is determined that jurisdiction does exist, and the merits of the matter are now examined.
History of the matter –
[10] Mr Fisher advises that there has been long ongoing discussions about the subject matter between Mr Roethlisberger and the respondent department since the previous valuation at 1 October 2001. At that valuation date there has been an agreement to reduce the original valuation objected against of $182,500 to $172,500. Mr Fisher suggests that reduction included, among other issues, a recognition of the impact of the sewer line. Mr Roethlisberger disagrees, arguing that $10,000 reduction was intended to provide only for the impact of the existing vegetation upon lots above the subject land, and also for retaining walls. He agrees that the sewer line had been discussed, but argues that it was not the main issue. Mr Fisher argues that the agreed reduction of $10,000 reflected 5% of the then unimproved value, and that reduction has now been included in the current unimproved value of $260,000.
[11] Mr Roethlisberger also advises that he had not seen Mr Mitchell's valuation report prior to the hearing. However he agrees that he had spoken to a departmental officer, who had contacted him by telephone to confirm his postal address, in order to arrange an exchange of documents. Because of a lack of specific details of the reasons for the departmental inquiry, and to maintain privacy issues, Mr Roethlisberger had declined to advise that departmental officer whether the appellant resided at the subject land. The official service address of the appellant had been at 50 Monte Carlo Street, Wishart, and had been so for some 8 years. Mr Roethlisberger confirms that a subsequent court order of 27 October 2004 had been delivered to 50 Monte Carlo Street, Wishart, and resulted in the appellant's response of the same date. The court notice of 6 July 2004 had also been sent to that service address.
[12] Due to an apparent breakdown in communication between the parties, the valuer's report had apparently been sent to an address at Red Hill. Mr Fisher could not confirm the actual address to which the report had been despatched, but it was noted that the documents had not been returned to the sender, so had apparently been received by some person unknown. In the circumstances of that confusion, the failure to exchange documents prior to the hearing, was not seen as a reason to exclude any evidence, and the hearing proceeded on the documents exchanged on the day of hearing. While that is something less than optimal in such matters, I believe it reflects the less than satisfactory communication between the parties.
Changes in value –
[13] A matter of concern to Mr Roethlisberger is the apparent inconsistent increase in the value of the subject land, which rose from $172,500 at the previous valuation to $260,000 (50%). He draws comparisons with the neighbouring parcel at 11 Grove Street, which he is advised by his neighbour only increased from $170,000 to $225,000 (32%). It is noted also that the unimproved value of 11 Grove Street (Lot 1086 on SL 5370) was $285,000 at that relevant date (Exhibit 3, page 16). Mr Mitchell advises that adjoining parcels at 9 Grove Street (Lot 2 on RP 85465) actually increase from $133,000 to $200,000 (50%) over the same period; while the next parcel at 7 Grove Street (Lot 1 on RP 85465) increased from $143,000 to $215,000 (50%). Mr Fisher notes that Lot 2 has an area of only 367 square metres, and Lot 1 has an area of 422 square metres, compared to the 685 square metres of the subject land. Mr Mitchell confirms that at the relevant date the previous relativities had been retained.
[14] Mr Roethlisberger also notes that advice to him from local real estate agents (Exhibit, page 5), indicates that average median prices for land in Red Hill had declined by about 4% between 1997 and 2000, while average median prices for land in the Brisbane area increased by 60%. He argues that those figures were based upon public data from the respondent department (DNR), the Australian Bureau of Statistics (ABS), and the Department of Fair Trading in New South Wales, and did not support Mr Mitchell's suggested 50% increase between 2001 and 2002. It is noted that the ABS data was probably obtained from the DNR data base, which has legal accountability to record all sales information in Queensland.
Nature of the land –
[15] The subject land is a regular shaped parcel falling overall from Grove Street, and has been cut and filled to accommodate the current substantial six bedroom dwelling with three car accommodation (Exhibit 4 and Transcript 42). The parcel has a frontage of 18.4 metres. There is no major difference between the parties on the nature of the land, except for the impact upon the use of the land as a result of a Council's sewer line along the northern boundary. This is really the key issue in this matter. It is agreed that there is no registered easement over the sewer line in favour of the Council, but that developments near the sewer line must not obstruct access by Council officers. Mr Roethlisberger sees that responsibility to provide access as a restriction upon the use of the land, and has sought to reduce the unimproved value of the land accordingly. Mr Roethlisberger agrees that the locality of the subject land is generally in an established single dwelling residential area, but notes that there is a multiple storey single residence opposite the subject land.
[16] The difference between the parties really rests upon the method adopted in making some allowance for the sewer line. It is agreed that the sewer line is located about 1 metre from the northern boundary. Mr Roethlisberger argues that allowing for a further 1 metre clearance to the south of the pipe line results in a width of 2 metres within which any developments are restricted. Adopting that 2 metre width for the depth of the parcel (37.38 metres), in Mr Roethlisberger's opinion, results in an area of 75 square metres of the subject land which has building restrictions upon it. At the pro rata rate of $379.55 per square metre for the unimproved value of $260,000, Mr Roethlisberger argues that indicates a reduction of $28,467, which should be deducted from the $260,000, or an unimproved value of $231,533, which is the amount now appealed for.
[17] While he has made some allowance for the restrictions of the sewer line, Mr Mitchell provides a different approach to that matter, and rejects the pro rata assessment. However to explain his approach, Mr Mitchell provides a sketch plan (Exhibit 6), upon which he argues that current Council building restrictions also condition the areas with which development can proceed on that parcel. Mr Mitchell advises that building setback clearances are required from the front alignment (6 metres), the side alignment (1.5 metres), and the rear alignment (1.5 metres). Allowing for those clearances, Mr Mitchell determines that the actual area of the parcel which has further restrictions as a consequence of the presence of the sewer line, would be a depth of 37.4 metres less 6 metres (front) and 1.5 metres (rear), or 29.9 metres. The effect of additional width of restrictions, beyond what is required by law for clearance to boundary purposes, would be 2 metres less 1.5 metres or 0.5 metres. On that basis he concludes an area of 29.9 metres by 0.5 metres, or about 15 square metres. Based upon the pro rata rate of $379.55 per square metre, he suggests that a reduction would be appropriate of about $5,620 on that basis.
[18] Mr Mitchell argues that is less than the 5% ($13,000) that he has allowed in his determination. Mr Mitchell further advises that a reduction of about 5% is consistently allowed across Brisbane, for properties with similar impacts. Mr Mitchell advises that his understanding of the Council Building Ordinances, is that clearance of 1.5 metres is to the wall of any building, and he has adopted that approach in this matter. He also agrees that there are eaves along that side of the building (Exhibit 5, page 1), which would also impact clearance requirements.
[19] Mr Fisher argues that as there is no registered easement over that sewer line, the owner can effectively use that area, but not restrict access by Council officers, should maintenance or repairs be needed. As such he points out that the appellant is not totally restricted over that area. He also notes that while there is no evidence of any relaxation by Council of its clearance requirements, that is an option available to the owner, subject to Council consent. Mr Fisher further seeks support for the approach by Mr Mitchell in the decision of this Court in McKone v Department of Natural Resources and Mines (AV2002/0195), 11 December 2002, unreported. In that matter an allowance of $14,000 had been allowed for the effects of both a sewer line and an existing manhole (paragraph [29]), but had rejected the use of a pro rata basis as suggested by Mr Roethlisberger (paragraph [25]).
Comparison of sales –
[20] The appellant supplies no sales of her own to support her estimate of the unimproved value, and relies upon the statistics explained in paragraph [14]. Mr Mitchell supplies the following sales of vacant or lightly improved residential lands:
•
Sale 1 – (6 Arabella Street, Bardon – Lot 5 on SP 147615). This is a 498 square metre Low Density residential parcel located about 1.4 km south-west of the subject land. The sale is an irregular corner parcel also fronting Warburton Street, and is near to Boundary Street which is a major feeder road from the Western Freeway. The land falls gently towards the rear boundary. The sale is seen overall as inferior to the subject land. The sale sold in September 2002 for $212,500, was analysed at $205,000, and applied at $172,500.
[21]
•
Sale 2 – (15 Ozanne Street, Paddington – Lot 2 on SP 121609). This is a 734 square metre Low Medium Density residential parcel located about 1 km south- west of the subject land. The sale is a hatchet shape parcel with access to Ozanne Street, which is a split dual lane bitumen carriageway. The sale falls steeply along the access driveway to a moderate gully, then rises gently to the rear boundary. Concrete pipe culverts have been placed under the driveway to provide drainage for any overland flows along the gully during heavy rains. Although larger in area, overall the sale is seen as inferior to the subject land. The sale sold in September 2002 for $225,000, was analysed at $215,000, and applied at $215,000.
[22]
•
Sale 3 – (63 Gould Street, Herston – Lot 23 on RP 466). This is a 486 square metre Character residential parcel located about 2.9 km north-east of the subject land. Access is via an easement across adjoining Lot 3 (Exhibit 3, page 18). The sale has superior location, and superior local views, but because of its much smaller size is seen overall as slightly superior to the subject land. The sale sold in August 2002 for $292,500, was analysed at $290,000, and applied at $270,000. The sale sold previously in August 2001 for $220,000.
[23]
•
Sale 4 – (1 Creek Avenue, Ashgrove – Lot 1 on RP 92507). This is a 672 square metre Low Density residential parcel located about 2 km north of the subject land, at the corner of Creek Avenue and Nicholson Lane, and near Enoggera Creek. The sale is an easy building site, and is near to a park, but further removed from the CBD. Overall the sale is slightly superior to the subject land. The sale sold in April 2002 for $282,000, was analysed at $279,500, and applied at $275,000. The sale previously sold in June 2001 for $190,000, and was applied at 1 October 2001 at $182,500.
[24]
• Sale 5 – (40 Arthur Terrace, Red Hill – Lot 2 on SP 127676). This is a 723 square metre hatchet shaped Character residential parcel located about 0.3 km east of the subject land. Arthur Terrace is a feeder road to the City. While larger in size, because of its hatchet shape, and a registered easement restricting the access driveway, the sale is seen as slightly inferior to the subject land. The sale sold in January 2002 for $250,000, was analysed at $247,500, and applied as an older sale in a rising market at $250,000. The sale has since resold in July 2004 for $355,000.
[25] Mr Mitchell explains further that access to Sale 5 is restricted in height by part of the existing dwelling upon the adjoining Lot 1 on SP 127676. That dwelling had existed on the original parcel which was then subdivided to form the new Sale 5. The height restriction limits access to Sale 5 by high vehicles, and was likely to be an issue in the further development of Sale 5. Beyond the access strip, Sale 5 slopes gently to the rear, then falls moderately to the rear boundary. There are no significant views from Sale 5.
[26] In explaining his analyses of his sales, Mr Mitchell advises that residential properties in that locality are purchased upon a "site" basis, and not on a pro rata area basis per square metre. He further advises that the registered easements upon his Sales 2 and 5 are greater restrictions than the presence of the sewer line on the subject land.
| Decision: | |
[27] | I note first the appellant's concerns that the sales evidence relied upon by Mr Mitchell would appear to be in conflict with the market changes indicated by statistical analyses supplied by real estate agents, and based upon figures supplied by, among others, analyses by the Australian Bureau of Statistics and the New South Wales Department of Fair Trading. Because of those inconsistencies, the appellant questions the reliability of the respondent's evidence of sales information. |
[28] | If I look then at the source of the respondent's information, I find that under the Valuation of Land Act 1944 it is the responsibility of any person disposing of land to provide notice in writing of that transaction within 30 days after the execution of the instrument of transfer. (Section 81(1)). The maximum penalty for failing to provide such a notice is five penalty points. The information required by the Act is in an "an approved form", which is defined to mean in a form approved by the Chief Executive (s.2). That was introduced into the Valuation of Land Act by the Lands Legislation Amendment Bill No. 67, s.5(1), and as amended in 1994. The power to approve a form is exercised by the Chief Executive under s.47, and is taken to be in a form as approved by Government Gazettal notice. |
[29] | The current approved form requires, among others, the names of the vendor and purchaser, the date of execution of the sale, and the details of the sale, including sale price. Penalties exist within the Act for refusing to supply information (s.88), failure to furnish a return (s.89), failure to notify a change of address (s.90), and failure to attend and give evidence if required by the Chief Executive (s.91). Each of those provisions may involve the maximum penalty of five penalty points. The definition of a penalty point is defined under s.15 of the Penalty and Sentences Act 1992, as amended from time to time, and reflected $75 for each penalty point at 1992, as amended by the State Penalties Enforcement Act 1999. |
[30] | In summarising those legislative requirements, it is not surprising that the very great majority of vendors register the details of the sale of their property as required, and the respondent department's data base could reasonably be accepted as the most reliable source of sales market information in Queensland. The fact that it is used under franchise by local governments, other government agencies and the real estate market, support the reliability of Mr Mitchell's sales evidence. |
[31] | I turn then to what would appear to be an inconsistency between Mr Mitchell's adopted increase of 50% for lands in that Sub Market Area (SMA), and the real estate advice of a decrease of 4% for land values in Red Hill. Now Mr Roethlisberger agrees that statistical averaging can be misleading under certain circumstances. Indeed the risk of relying upon some averaging process has been identified by the Courts. The risk in averaging properties or land is that there can be such a wide disparity between many of the sales. |
[32] | In the matter then of averaging rates based upon dissimilar properties, I note that process has been rejected by the Courts. The matter of averaging of sales was addressed in Daandine Pastoral Company Pty Ltd v Commissioner of Land Tax (1943) 7 The Valuer 299, at 305, where Williams J said in the High Court of Australia on 26 August 1943: |
"This method of averaging to my mind is unsound. The prices obtained at comparable sales should not be aggregated and averaged, especially when the prices obtained on sales of small areas are dealt with in this way in order to obtain the value per acre of a large area. The only safe course is to compare each sale with the subject land separately."
That principle has been upheld by lesser courts on many occasions subsequently.
[33] However the use of averaging was seen as a useful check by Chamberlin J in Robson and Jarvis v The Minister of Education (SA) (1964) 18 The Valuer 486, where he said at 490:
"I recognise that the unscientific use of averages is a fruitful source of fallacy, but where there are a number of sales at about the same time of more or less identical blocks at somewhat different prices, an average may provide a useful check."
[34] The possible use of averaging in appropriate circumstances was also accepted in Fenton Nominees Pty Ltd v The Valuer-General (1981-82) 47 LGRA 71, where Wells J said at 80:
"There is no doubt that an average was struck, but, on the evidence before me I am satisfied that the averaging was proper; Mr Quintrell was dealing, not with the number of purchasers, that were, in all respects, separate transactions, but with a series of purchases, each of which was viewed and treated by the purchaser as an integral part of one operation of assembling a commercial site."
[35] The principle of aggregating prices was rejected on appeal in that matter to the Full Court (1981-82) 47 LGRA 83, per King CJ at p.87. However, that was reversed by the High Court in 47 LGRA 95, where the Full Court said at 99:
"We do not accept the argument that the manner in which the sites were 'assembled' by purchasers of separate parcels so as to make up the totality of the relevant commercial sites led to the developer paying a special price. The primary judge was right in rejecting this argument. In this respect it is of paramount importance that the evidence assists in establishing what commercial developers were prepared to pay for the vacant land comprised in the overall sites which they assembled." (See also (1981-82) 150 CLR 160, 167).
[36] However Fenton Nominees Pty Ltd can be distinguished in the current matter as the averaging of sales for purposes of determining an appropriate rate of change for the subject land involved separate disparate parcels with differing attributes and features. That distinction was also apparent in Robson and Jarvis (supra). It is also noted that in the current matter it involves a very small sample size of only 7 sales.
| Relativity – | |
| [37] | In seeking relativity with adjoining parcels, at 7, 9 and 11 Grove Street, I note that Mr Mitchell has retained the previous relativities with those parcels, and has also increased those parcels by a factor of 50% at the relevant date. Mr Mitchell's advice is those continued relativities included a special allowance of 5% for the sewer line upon the subject land. On that basis there is nothing to suggest that Mr Mitchell has made an error in those valuations. |
Impact of the sewer line –
[38] If I look then at the appellant's approach to considering the subject land on a per square metre basis, I find that is in conflict with directions of the courts over many years. Indeed the Land Appeal Court found in DF and M Ward v Valuer-General (1983) 9 QLCR 48, at 50:
"Sites are valued overall and not on a rate per hectare basis. The
experience of the market place reflects the former not the latter practice."
[39] That was later supported in Hans and Else Grahn v Valuer-General (1992-93) 14 QLCR 327, where the Land Appeal Court at 330:
"The appellants fail on this point because the appropriate basis for the valuation of a residential lot is not the application of a rate per square metre but an assessment of the unimproved value of each lot as land used for single unit residential purposes. As the Land Appeal Court said in its decision on the appellants' previous appeal (H and E Grahn v. The Valuer- General, AV89-246 and 247, 13 December 1990):
'for the purpose of valuing residential sites, the preferable method of comparison is on a site to site basis and not on the basis of a unit area valued comparison. Site for site comparison should take into comparison such matters as the size of the lots, the situation of and access to the lots, the shape and topography of the lots etc. and comparisons on a unit area basis do not necessarily reflect valuation considerations for the above features.'"
[40] However, if I assume that there is some disability associated with the existence of the sewer line, I would agree with Mr Mitchell that the need to preserve at least the setback of 1.5 metres from the dwelling to the boundary fence, is a matter common to all property owners in that area. The existing town planning provisions of the Council referred to building clearances in accordance with the Standard Building Regulations 1993. Section 38 of those regulations directs:
"38. Side and rear boundary clearances generally
If the maximum height of the outer most projection above the natural ground surface is –
(a)
4.5 m or less, the side and rear boundary clearances must be not less than 1.5 m; or
(b)
greater than 4.5 m but not exceeding 7.5 m, the side and rear boundary clearances must not be less than 2 m; or
(c)
greater than 7.5 m, the side and rear boundary clearances must be not less than 2 m plus 0.5 m for every 3 m or part of 3 m by which the height exceeds 7.5 m."
[41] Section 36 of those Regulations directs:
"36 Road boundary clearance
All building and structures to which this part applies must have at least a 6 m road boundary clearance."
It is also noted that some concession can be allowed for an open carport under s.37, to allow for an open carport to be located within the 6 metre clearance from the road, so long as the supports of the carport do not exceed 10% of the total perimeter length of the open carport.
[42] The important criteria in those clearance distances, is that they relate to the "outermost projection", which in its practical application is often taken to the face of the facia board of the edge of the eaves of the dwelling. In the current matter it is noted that there is an eave along the northern side of the dwelling (Exhibit 5, page 1). While there is no evidence of distance to the walls of the dwelling, the existing dwelling would appear from the photograph to have at least maximised its location from that boundary. If I was to adopt that principle of assessing any disability as a consequence of an area of the parcel so impacted, I believe Mr Mitchell's assessment of about 15 square metres would be generous.
[43] However I have Mr Mitchell's evidence that he has allowed for 5% or $13,000 for the sewer line, which is more than on a per square metre basis, and I will adopt that approach, as it is apparently widely adopted by the respondent in certain circumstances. Indeed in the matter of McKone (supra), a $14,000 allowance was made for a sewer line across a much larger parcel of 1,260 square metres, but where overflow problems occurred regularly from a manhole along that sewer line. The $14,000 reduction in that case represented 7% of the original value of $199,000.
Comparison of sales –
[44] In adopting comparisons with sales of vacant or lightly improved lands, Mr Mitchell has followed a principle long upheld by the courts. It was followed in GR and M Maguire v Chief Executive, Department of Natural Resources (1997-98) 17 QLCR 123, where the Member noted guidance from the Land Appeal Court in WM and TJ Fischer v Valuer- General (1983) 9 QLCR 44, at 46; and also by the Land Appeal Court in PH Clough v Valuer-General (1981-82) 8 QLCR 70, at 76. That principle was also followed in R and MM Barnwell v Valuer-General (1990-91) 13 QLCR 13 at 17; and also by the High Court in Commonwealth v Arklay (1952) 87 CLR 159, at 170.
[45] If I then check the comparisons, I find the following:
Sale Area Applied Value Comparison 1 498 square metres $172,500 Inferior 2 734 square metres $215,000 Inferior 3 486 square metres $270,000 Slightly superior 4 672 square metres $275,000 Slightly superior 5 723 square metres $250,000 Slightly inferior Subject land 685 square metres $260,000 - On those comparisons Mr Mitchell does not appear to have made a serious error of fact.
Summary –
[46] In considering the requirements of the Valuation of Land Act, I note in respect of a Notice of Appeal that s.45(4) states:
"45.(4) Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner."
[47] Clearly the burden of proof in this case rests upon the appellant, who, on the evidence supplied, has sought to establish that the Chief Executive has made an error of fact or was wrong in principle. In this matter I note the findings of the High Court of Australia in Brisbane City Council v The Valuer-General (1977-78) 140 CLR 41, where Gibbs J found at 56:
"In my opinion once it is shown that in making the valuation the Valuer- General acted upon a wrong principle or made a serious error of fact, the presumption created by section 13(7) is rebutted."
[48] I also note that s.33 of the Act (formerly 13(7) directs:
"33. Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the chief executive shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered."
Conclusion:
[49] Having considered the whole of the evidence I am not persuaded that the appellant has proved her case. The appeal is dismissed, and the unimproved value of Lot 3 on RP 85465 as determined by the Chief Executive in the sum of Two Hundred and Sixty Thousand Dollars ($260,000) is affirmed.
NG DIVETT
MEMBER OF THE LAND COURT
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