Burke & Anor v Valuer-General [2021] QLAC 3

LAND APPEAL COURT OF QUEENSLAND CITATION: Burke & Anor v Valuer-General [2021] QLAC 3 PARTIES: Peter Thomas Burke (appellant) Menora Developments Pty Ltd ABN 20 123 406 520 (appellant) v Valuer-General (respondent) FILE NOs: LAC No LAC007-21 Land Court No LVA048-21 DIVISION: PROCEEDING: Land Appeal Court of Queensland Appeal from the Land Court of Queensland ORIGINATING COURT: DELIVERED ON: Land Court of Queensland 25 November 2021 DELIVERED AT: Brisbane HEARD ON: 8 October 2021 HEARD AT: Brisbane THE COURT: Boddice J WA Isdale, Member of the Land Court JR McNamara, Member of the Land Court ORDER: The appeal is dismissed. CATCHWORDS: REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – where the valuation objection excluded any consideration of site improvement deductions – where the appellants had undertaken site improvements – whether the appellants could have site improvement deductions freshly considered in the Land Court on appeal – where it was held that the Land Valuation Act 2010 did not allow for adding new objection grounds on -- 1 of 12 -- 2 appeal Land Court Act 2000 s 7, s 55, s 56, s 57A Land Valuation Act 2010 s 7, s 8, s 19, s 23, s 38, s 41, s 42, s 43, s 80, s 105, s 113, s 143, s 145, s 151, s 155, s 157, s 169, s 172 Uniform Civil Procedure Rules 1999 r 375 Allesch v Maunz (2003) 203 CLR 172; [2000] HCA 40, distinguished Burke & Anor v Valuer-General [2021] QLC 24, cited Ivan v Valuer-General [2013] QLC 24, distinguished Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267; [1990] HCA 36, applied Townsville City Council & Anor v Department of Main Roads [2006] 1 Qd R 77; [2005] QCA 226, applied Wakefield & Ors v Commissioner of State Revenue [2019] 3 Qd R 414; [2019] QSC 85, distinguished YFG Shopping Centres Pty Ltd as Tte & Anor v Valuer- General; Shayher Alliance Pty Ltd as Tte v Valuer-General; Leda Commercial Properties Pty Ltd as Tte v Valuer- General; Lipoma Pty Ltd as Tte v Valuer-General; RG Property Three Pty Ltd as Tte v Valuer-General [2020] QLC 10, cited APPEARANCES: PT Burke (agent, Menora Developments Pty Ltd) for the appellants DA Quayle (instructed by In-house Legal, Valuer-General) for the respondent THE COURT: Background [1] The appellants own Lot 910 on plan number SP226193, located at Blackstump Ct, Gilston, City of Gold Coast, QLD, 4211, which has an area of 33.94 ha (“the Land”). [2] The Valuer-General issued an annual valuation of the Land as at 1 October 2019 of $3,400,000. The previous valuation made on 1 October 2017, was $580,000. The valuation notice was in the form required by s 80 of the Land Valuation Act 2010 (“the Act”). [3] The appellants objected to the new valuation pursuant to s 105(1) of the Act. Consequently, on 3 March 2021, the Valuer-General altered the valuation to $2,650,000. -- 2 of 12 -- 3 [4] The Valuer-General’s decision on objection, given under s 151, stated: “The reason for my decision is: • After further consideration of adverse characteristics associated with the land, a greater allowance has been made resulting in a change in the valuation of the property.” The appeal to the Land Court [5] The appellants appealed to the Land Court against the objection decision. The appellants claimed there should be a deduction for site improvements of $770,400. This would result in the site valuation being $1,879,600.1 [6] The grounds of appeal to the Land Court were stated to be: “THE NEW SITE VALUATION FAILS TO TAKE INTO ACCOUNT THE VALUE OF THE WORKS THAT HAVE BEEN UNDERTAKEN ON THE SITE SINCE ITS ACQUISTION AND WHILE IT HAS REMAINED IN CONTINOUS PART OWNERSHIP OF THE REGISTERED OWNERS IN COMMON. THE SITE IMPROVEMENT VALUE CLAIMED ONLY RELATES TO THE PORTION OWNED BY MENORA DEVELOPMENTS PTY LTD AND DOES NOT EXCEED THE ACTUAL COSTS INCURRED IN INCREASING THE SITES [sic] VALUE AND IS FULLY SUPPORTED BY THE PAID INVOICES ASSOCIATED WITH THE IMPROVEMENTS MADE TO THE SITE TO INCREASE ITS VALUE EVEN THOUGH THE ACTUAL VALUE OF THE IMPROVEMENTS EXCEEDS THE COSTS OF THOSE IMPROVEMENTS. ONLY THE ACTUAL COST OF THE APPLICABLE IMPROVEMENT WORKS HAVE BEEN CLAIMED.”2 [7] On 23 July 2021, the Land Court allowed an application by the Valuer-General, the present respondent, to have the appeal struck out on the basis the Land Court had no jurisdiction to deal with it.3 [8] The respondent’s successful argument before the Land Court was that no decision had been made in relation to site improvements so there could be no appeal on that matter. In reaching that conclusion, the Court considered the provisions in sub-div 1 of div 5 of the Act, which provide for making a site improvement deduction, and the provisions which allow for an appeal. [9] The Land Court concluded: “[19] The language of all sections dealing with deduction applications is mandatory, not permissive. If a person does not comply with 1 Appeal record book filed 22 September 2021, page 27, T 1-10, lines 18 to 28. 2 Appeal record book filed 22 September 2021, page 42. 3 Burke & Anor v Valuer-General [2021] QLC 24. -- 3 of 12 -- 4 the framework, the Valuer-General cannot make a decision. A person cannot appeal if the Valuer-General has not made a decision. It may be tempting to interpret “decision” in its widest sense – any decision on the objection – but the specific requirements of the LVA about deduction applications call for a narrower view.”4 The appeal to this Court [10] On 3 September 2021, the appellants appealed to this Court, seeking to have the decision of the Land Court set aside and the matter remitted to that Court for rehearing. [11] The Notice of Appeal to this Court records that the appellants were not legally represented. While the grounds of appeal appear to be in the form of written submissions, the substance of the appeal can be found within the 37 paragraphs in the Notice of Appeal. [12] In essence, the appellants contend they were free to appeal to the Land Court on other evidence to what they might have chosen to put forward at the objection stage.5 [13] The appellants submit that, after the appeal to the Land Court was filed, they provided the respondent, and the Court, with the information which s 41(2) of the Act requires for a deduction for site improvements. Accordingly, a deduction for site improvements was before the Land Court in the appeal. Consideration [14] Section 155(1) of the Act provides: An objector may appeal to the Land Court against the objection decision for the objection. [15] The decision on objection6 states that the “valuation amount has been altered to $2,650,000”, and that the reason for the decision is “after further consideration of adverse characteristics associated with the land… a greater allowance has been made, resulting in a change in the valuation of the property”. 4 Ibid. 5 Notice of appeal filed 3 September 2021 [4]. 6 Appeal record book filed 22 September 2021, page 136. -- 4 of 12 -- 5 [16] The objection decision does not say anything about a deduction for site improvement costs having been made. [17] The appellants accept that: “...the respondent did not include is [sic] his assessment of the objection the issue related to a site improvement deduction the objector/appellant contends that the respondent did in fact decide on the objection against the initial site valuation.”7 [18] This concession is sufficient to determine the appeal in favour of the respondent, having regard to the requirement of s 155 of the Act. [19] However, the appellants relied on a number of other contentions to submit that the Land Court erred in summarily determining to strike out the appeal. [20] First, the appellants submit that s 55 of the Land Court Act 2000 assists them. It is equivalent to s 7, which applies to the Land Court, and is in the following terms: 55 Land Appeal Court to be guided by equity and good conscience In the exercise of its jurisdiction, the Land Appeal Court— (a) is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and (b) must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts. [21] The meaning and scope of s 7 was considered by Keane JA (as his Honour then was), with whose reasons McMurdo P and White J agreed, in Townsville City Council & Anor v Department of Main Roads:8 “[38] The precise effect of a provision such as s 7 of the Act will depend on the nature of the decision to be made by the relevant tribunal. In Qantas Airways Ltd v Gubbins, Gleeson CJ and Handley JA noted that: “The words ‘equity, good conscience and the substantial merits of the case’ are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found …” [39] A statutory exhortation to have regard to "equity, good conscience and the substantial merits of the case" must be given effect. As 7 Notice of appeal filed 3 September 2021 [19]; See also appellants’ amended argument filed 24 September 2021 [14]. 8 [2006] 1 Qd R 77; [2005] QCA 226. -- 5 of 12 -- 6 Olsson J pointed out in Trittenheim Pty Ltd, Heaney & Heaney v H & H Gill Nominees Pty Ltd: “What must firmly be borne in mind is that what is appropriate in a particular case must derive from a consideration of the nature of the issues involved and, where appropriate, the clear intendment of any statute applicable. These may patently demand an application of strict principles of law or of a statute either because the notion of equity, good conscience or the substantial merits of the case unerringly points to the need or desirability of so doing, or the statute expressly or impliedly mandates such an approach… However, in certain types of case … there remains scope for the court … to adopt a broad approach of common sense and common fairness, eschewing all legal or other technicality. If it were otherwise then a mandate to 'act according to equity, good conscience and the substantial merits of the case without regard to technicalities ... ' would have little or no room to operate at all.” [40] The view that the inclusion of such a provision widens rather than restricts the discretion available to a decision-maker has received support in the High Court. In Minister for Immigration and Multicultural Affairs v Eshetu, the High Court was concerned with construing s 420 of the Migration Act 1958 (Cth), which provides: “(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case.” [41] Gleeson CJ and McHugh J noted that such provisions: “… are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.” [42] An example of how effect may be given to such a provision is provided by the decision of the Full Court of the Supreme Court of South Australia in Featherston v Tully. The case concerned the operation of the Supreme Court of South Australia when sitting as the Court of Disputed Returns under s 103(1) of the Electoral Act 1985 (SA). Section 106 of the same Act provides that: “(1) The Court is to be guided by good conscience and the substantial merits of each case without regard to legal forms or technicalities. -- 6 of 12 -- 7 (2) The Court is not bound by the rules of evidence.” Bleby J, with whose judgment Mullighan J agreed, said, in relation to s 106, that: “The court is obliged to act judicially, to apply the requirements of the Act and the common law and to afford all parties and legitimate interveners the principles of natural justice. However, the common law criteria which I consider are applicable, as well as the requirements of s 107(3) and s 107(4), require a judgment to be made about whether there has been an election at all, whether the statutory electoral procedures have been so abused that there has been no election and whether, in the circumstances stated in s 107(3) and s 107(4) the result of the election was affected by the relevant defect or irregularity. Without the provisions of s 106, some might take the view that the only way of reaching a conclusion on those requirements is to hear evidence from every relevant elector as to their inability to vote, how they would have voted, how they in fact voted or, if the relevant circumstances had been different, how they would have voted. It might be said that at least a sufficient number of such people would have to give evidence in order to reach such a conclusion. Section 106 avoids the need for any such requirement. It means, in the context of this Act, that the Court must exercise its judgment according to its good conscience and according to what it considers to be the substantial merits of the case as to whether the respective common law or statutory criteria have been met. It permits resort to a common sense judgment in all the circumstances. However, the court's judgment cannot be merely arbitrary. It must still apply the common law principles. In the case of s 107(3) and s 107(4) it must apply the well known standard of being satisfied on the balance of probabilities that the result of the election was affected by the defect, irregularity or defamation as the case may be. The section therefore has a useful function, but it does not, as was suggested in the course of the petitioner's argument, allow the court to create new law.””9 (emphasis in original) (citations omitted) [22] Similarly, in the context of the Act, the Court must act as set out in s 55 of the Land Court Act 2000. However, there is no basis to conclude that in reaching its decision, the Land Court did otherwise. Accordingly, this contention does not assist the appellants. 9 Townsville City Council & Anor v Department of Main Roads [2006] 1 Qd R 77; [2005] QCA 226 [38]-[42]. -- 7 of 12 -- 8 [23] Second, the appellants rely on a passage in Ivan v Valuer-General10: “[7] The levelling of the subject land has been carried out in such a way that not all of the land is useable. Mr Ivan also notes that in response to his Right to Information request the sales disclosed by the Valuer-General as being used to value his land are different to what is now being relied upon. As vexing as this may be, when the matter comes before this Court the respondent is entitled to make the case it chooses to make and is not bound by any past basis it may have relied upon. Equally, the appellant is free to base the appeal on other evidence to what he might have chosen to put forward at, for instance, an objection conference.”11 [24] The appellants seek to draw from this a rule of general application; in effect that they could rely in the Land Court on a claim not made previously. However, that passage is not authority for that proposition. What was being referred to in that passage was the sales provided as the basis of arriving at the value for the land. The passage was not considering the more fundamental issue of whether there had been a decision at all. [25] Equally, the contention in paragraph 19 of the grounds of appeal, that the respondent did in fact decide on the objection, is of no assistance. It is uncontentious that the respondent made a decision on objection. The respondent did not, however, make a decision on a site improvement determination as it did not form part of the objection. [26] Third, the appellants submit that s 172(1) of the Act, which provides that this appeal must be by way of a rehearing, will allow this Court to, for instance, permit the appellants to amend their appeal under r 375 of the Uniform Civil Procedure Rules 1999 to “…add the new cause of action of a site improvement deduction ground.”12 [27] However, s 145 of the Act specifically sets out permitted amendments to an objection, none of which are of assistance to the appellants. [28] Further, s 56(1) of the Land Court Act 2000 provides that the appeal is required to be decided on the record from the Land Court, subject to the limited, and presently inapplicable, scope for new evidence provided by sub-s (2). 10 [2013] QLC 24. 11 Ibid [7]. 12 Notice of appeal filed 3 September 2021 [36]. -- 8 of 12 -- 9 [29] A deduction for site improvement costs, accordingly, is not able to be considered in this appeal. Equally, it was not able to be considered in the Land Court. [30] This conclusion is consistent with the scheme of the Act. [31] Sections 38 to 44 of the Act allow the owner of the land to apply to the Valuer- General for a deduction for site improvements made by them in the previous 12 years.13 [32] Section 41(1) provides that a “deduction application” may be made as a ground for an objection to a valuation or at any other time. If the former, it must be done as provided for in s 113. In the latter case, at any other time, it must be done using the approved form. [33] Section 113(2) makes provision for particular requirements to be met when the objection ground is a deduction application or about a decision made on one. If there is a deduction application, s 42 provides that the Valuer-General must consider it and either refuse it or grant it in whole or in part. [34] Here, the deduction application was not included in the objection. The objection form, at page 122 of the record, under the heading “Application for Site Improvement Deduction”, has the words “Not Applicable” typed in. [35] Notwithstanding that specific statement, the appellants contended that a decision of the High Court of Australia in Re Coldham; Ex parte Brideson (No 2),14 supports the consideration of matters not ruled upon in the decision on appeal. [36] However, in that case, the issue was whether, on an appeal from a decision of the Registrar, the Australian Industrial Relations Commission had jurisdiction to hear evidence concerning matters which had arisen since the Registrar’s decision. As a matter of statutory interpretation, that question was answered in the affirmative. As has been explained, the applicable legislation requires a different conclusion in the present case. [37] The appellants also referred to Wakefield & Ors v Commissioner of State Revenue.15 In that case, Bowskill J said: 13 Land Valuation Act 2010 (Qld) s 38. 14 (1990) 170 CLR 267; [1990] HCA 36. -- 9 of 12 -- 10 “[17] In the present context, as can be seen from ss 65-68 of the Taxation Administration Act, the process adopted by the Commissioner in making a decision in relation to an objection by a taxpayer does not involve what would normally be described as a hearing (including, for example, hearing evidence and oral argument). This affects the meaning to be given to a “rehearing”, where a right of appeal to a court is conferred. [18] It is for that reason that it has been held that where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. Once again, it depends on the terms of the legislation”16 (citations omitted) [38] As her Honour made clear, the content of the rehearing depends on the terms of the legislation. In the present case, s 56 of the Land Court Act 2000 is the relevant provision. It does not assist the appellants, for the reasons previously discussed. [39] In support of the contention that once the appeal was before the Land Court, the matter of a deduction for site improvements could have been raised, the appellants also referred to a passage in a case concerning shopping centre valuations.17 The passage relied upon18 is to the effect that the owner’s agent had failed to apply for a deduction for site works. The Court accepted that the valuation was wrong. It was submitted that the situation here was such that a similar approach should be taken. However, the preceding paragraph, [64], records that the Court was referring to batter banks and lost area. Although the words “site works” were used, the meaning and context of the expression in that case was not the same as a site improvement as that expression is used in ss 38 to 44 of the Act. [40] Reference was also made to observations of Kirby J in Allesch v Maunz19 where his Honour, while agreeing with the majority on the disposition of the case, referred to the necessity of providing an opportunity to be heard. However, these observations do not assist as the appellants were provided with an opportunity to be heard on the objection before the Court. There was no requirement to hear them in relation to a 15 [2019] 3 Qd R 414; [2019] QSC 85. 16 Ibid [17]-[18]. 17 YFG Shopping Centres Pty Ltd as Tte & Anor v Valuer-General; Shayher Alliance Pty Ltd as Tte v Valuer-General; Leda Commercial Properties Pty Ltd as Tte v Valuer-General; Lipoma Pty Ltd as Tte v Valuer-General; RG Property Three Pty Ltd as Tte v Valuer-General [2020] QLC 10. 18 Ibid [65]–[66]. 19 (2003) 203 CLR 172; [2000] HCA 40 [35]. -- 10 of 12 -- 11 subject which they specifically stated in their objection form was “Not Applicable”.20 [41] Finally, the appellants submit that the respondent should have been aware that they were entitled to make a deduction application and ought to have brought this to their attention. However, the respondent is not required to provide advice to the appellants as to how they might choose to act. That is a matter for them. [42] These conclusions render it strictly unnecessary to consider further, two conclusions raised by the respondent as to why any appeal was futile in any event. However, as they were argued, the Court will briefly state its conclusions as to those contentions. [43] Section 43(2) requires that a deduction for site improvement costs be deducted from the “relevant valuation”21 and subsequent valuations as prescribed.22 [44] Section 43(5) specifically defines “relevant valuation” in the following way: (5) In this section— relevant valuation means— (a) if the deduction application was made as an objection ground—the valuation objected to; or (b) otherwise—the valuation for which a valuation notice is next to be given to the owner. [45] In the present case, (b) would be applicable. Accordingly, even if a deduction for site improvement costs were to be agitated in this case and allowed, it would make no difference whatever to the valuation as at 1 October 2019. [46] Further, ss 143 to 145 provide a specific code for amending objections. None of the permitted amendments would extend to the deduction for site improvement costs. [47] Relevantly, section 143(2) states: (1) If an objector purports to amend an objection other than under this part, the valuer-general must disregard the purported amendment when deciding the objection. [48] Under s 145, permitted amendments may be made to reflect an additional matter or include further information, but that is expressly limited to matters being dealt with 20 Appeal record book filed 22 September 2021, page 122. 21 Land Valuation Act 2010 (Qld) s 43(2)(a). 22 Ibid s 43(2)(b). -- 11 of 12 -- 12 under pt 4, which comprises ss 132 to 142 of the Act. None of these sections have any application to the present case. [49] Accordingly, the Act does not permit the amendment of the objection to include the application for a deduction for site improvement costs. [50] This conclusion is not altered by a construction of either s 157 or s 169 of the Act. [51] Section 157(3)(c) of the Act, which provides that if a site improvement deduction is claimed, that must be stated in the valuation appeal notice, does no more than say what must be in the notice. It does not create separate rights or jurisdiction. [52] The requirement in s 169(2) that the appeal must be by way of a rehearing similarly does not extend the scope of the appeal. Conclusion [53] The Land Court correctly held that the appeal should be struck out. The appeal must be dismissed. Costs [54] Both parties submitted that each should bear their own costs. Section 57A(3) of the Land Court Act 2000 provides that this will be the result if this Court makes no order relating to costs. Accordingly, no order is necessary. Order: The appeal is dismissed. -- 12 of 12 --