Camilleri & Anor v Chief Executive, Department of Environment and Resource Management [2011] QLC 12

LAND COURT OF QUEENSLAND CITATION: Camilleri & Anor v Chief Executive, Department of Environment and Resource Management [2011] QLC 12 PARTIES: Amanda J Camilleri and Catherine J Camilleri (Appellants) v. Valuer-General (Respondent) FILE NO: VLA240-10 DIVISION: Land Court of Queensland PROCEEDINGS: Application DELIVERED ON: 18 March 2011 DELIVERED AT: Brisbane HEARD AT: Brisbane HEARD ON: 14 December 2010 MEMBER: His Honour, Mr WL Cochrane, Member ORDERS: 1. Appealed dismissed. 2. The valuation of the land is confirmed at Five Hundred and Forty Thousand Dollars ($540,000). CATCHWORDS: Valuation of Land Act 1944 ss 33 and 45 Appeal against valuations – use of comparable sales evidence – expert evidence Grounds of appeal restricted to those contained in objection Burden of proof NR and PG Tow v Valuer-General [1978] QLCR 378 APPEARANCES: The Appellants appeared in person Ms L Hawkings-Guy, solicitor and senior legal officer, Department of Environment and Resource Management, for the Respondent Background [1] This is an appeal brought pursuant to s.45 of the Valuation of Land Act 1944 (the VLA). It is in respect of land located at 435 Old Toorbul Point Road at Caboolture and otherwise described as Lot 1 on RP 115438 Parish of Canning (Property ID 17554). The land is owned -- 1 of 6 -- 2 by Amanda Josephine Camilleri and Catherine Johanna Camilleri. The appeal was filed on 30 July 2010 against a decision made earlier that month notified to the appellants by the Valuer-General by letter dated 13 July 2010 advising that the objection against a valuation of $540,000 effective from 30 June 2010 with a date of valuation of 1 October 2009 had been disallowed and the value was to remain unaltered. The appeal went through a preliminary conference process but no resolution of the matter was achieved and accordingly it fell to determination by the Court. [2] The Camilleris contended for a valuation of $320,000 as against the Chief Executive’s valuation of $540,000. [3] The Camilleri sisters appeared on their own behalf. [4] The basis for the appeal is set out in a letter dated 15 November 2010 sent by Ms Amanda Camilleri in which she identifies the following list of objections in respect of the increase in the land valuation: “Being rural property with no town water No sewer No garbage collection No street lights No public transport j joining the state forrest Frontage facing South local carbage tip Frontage being the lower side of the road subject to flood Portion of land subject to bogging vehicles Road being single lane double line marking 80KM speed unable to slow down and make a 90 degree entrance entrance front has a 1.22meter (4 feet)drop to road level Regional council Local Government reconstructed the road with error No scope for development (Hobby Farm)” [5] That letter was Exhibit 1 before the Court. An identical letter signed by Catherine Camilleri became Exhibit 2. [6] Section 45 of the Valuation of Land Act 1944 provides at s. 45(6) that: “(6) The stated grounds of appeal can only include grounds included in the objection.” [7] In the course of the hearing it became clear that the grounds of objection did not include some of the matters which were set out in Exhibit 1 and Exhibit 2. [8] Objection was taken by the Valuer-General’s solicitor to some of the grounds of objection contained in exhibits 1 and 2 namely reference to the land adjoining State Forest and facing south towards the local garbage dump. Those objections were sustained. [9] A contention by Ms Camilleri about the impact of heavy traffic suffered the same fate as it was not noted in the original grounds for objection. -- 2 of 6 -- 3 [10] Similarly the allegations about a drop of 1.2 metres to the road level, the reconstruction by the local government arguably being erroneously carried out and the road being a single lane, double line marking with an 80k/hr speed limit were also successfully objected to. [11] Ms Camilleri also complained that some part of the land was susceptible to bogging in the appropriate climatic conditions. [12] The Camilleris carry the burden of proof in this appeal and, it should be noted that s.33 of the VLA deems any valuation made under the Act to be correct until proved otherwise upon objection or appeal or until altered or further altered. [13] Unusually for proceedings of this sort, the Camilleris did not appoint a valuer to prepare a valuation on their behalf electing, instead, to cross-examine the valuer appointed by the respondent, the Valuer-General. [14] Evidence in the appeal thus became the valuation report prepared by Anthony Fitzpatrick dated 30 November 2010 (Exhibit 3) and an addendum to that valuation report dated 8 December 2010 (Exhibit 4). [15] The Court can only have regard to evidence properly adduced before it. In circumstances where appellants fail to appoint a valuer to provide evidence to this Court an appellant is somewhat constrained in attacking the valuation contended for by the Valuer-General. [16] The Court does not embark upon any investigations of its own in appeals such as this. [17] The valuation report prepared by Mr Fitzpatrick contended for an unimproved capital value of $540,000. [18] Mr Fitzpatrick in his report provided a succinct description of the land which description I adopt as being both accurate and useful. “SITUATION AND ACCESS: The property is located approximately 10 kilometres north east of the town of Caboolture on the northern side of Old Toorbul Point Road. The majority of the road is bitumen sealed with an earth verge. However part of the road frontage of the subject land has concrete curbing. There is a good line of vision in both directions when accessing or leaving the property. (see photographs attached page 9) Access to the property appears to be direct and not difficult. Old Toorbul Point Road can be accessed from either the Toorbul-Donnybrook Road to the north or from the Caboolture Bribie Island Road to the south. SERVICES AND AMENITIES: The property is able to connect to telephone and power services. Most amenities and schools are available at Caboolture 10 kilometres to the south west. NATURE OF LAND: The land is gentle sloping in nature. It falls generally and gently from the northern boundary to the southern boundary. There is a small dam in the north east corner and a large dam is located closer to the southern boundary. The land is cleared to pasture. (Aerial photo page 6 - Subject) ZONING & USE: As at 1/10/2009 the land was designated ‘Rural’ within the Central Planning Area under the Caboolture Shire Plan gazetted 2nd December 2005. The property is used as an occupied Rural Homesite with some ancillary grazing.” -- 3 of 6 -- 4 The supplementary report which became Exhibit 4 identified an additional comparable sale of land to which Mr Fitzpatrick drew the Court’s attention. [19] Consistent with the approach which has been endorsed by this Court on numerous occasions,1 Mr Fitzpatrick approached the valuation exercise by having regard to the sales of what he contended were comparable properties on the open market at around about the relevant date of valuation. [20] I am satisfied that the approach taken by Mr Fitzpatrick was an appropriate one. [21] All of the comparable sales were inspected by myself and representatives of each of the parties to the appeal so as to give me a better opportunity to understand the evidence to be adduced through Mr Fitzpatrick. The Camilleri land has an area of 16.46 ha which, adopting the valuation contended for by Mr Fitzpatrick calculates to a rate of $32,807 per hectare. The comparable sales utilised by Mr Fitzpatrick were all in relatively close proximity to the subject site and involved areas of 16 ha, 17.55 ha, 21.16 ha and 19.59 ha so that I was satisfied they were all not only in the relevant area but of a generally comparable size. [22] The comparable sales relied upon by Mr Fitzpatrick were: Property Description Area Date of Sale Analysed Unimproved Value Sale No. 1: Spratt Road L2 SP191666 Parish of Canning 16 ha Rural 18/09/07 Possession 27/03/08 $1,015,000 $63,473/ha Sale No. 2: Wallace Road Lot 9 SP229643 Parish of Toorbul 17.55 ha Rural 28/10/2009 Possession 27/01/2010 $1,020,000 $58,119/ha Sale No. 3: Beachmere Road L7 RP79282 Parish of Toorbul 21.16 ha Rural 01/07/2007 Possession 30/07/2007 $520,000 $24,574/ha Sale No. 4: Old Toorbul Point Road L4 SP191666 Parish of Canning 19.59 ha Rural 01/07/2010 Possession 15/09/2010 $1,035,000 $52,833/ha [23] Ms Camilleri did not in any real sense cross-examine Mr Fitzpatrick in a manner which challenged either his observations, the applicability of the comparable sales or his conclusions. [24] Ms Amanda Josephine Camilleri gave oral evidence. She was not challenged with respect to the content of some of the objection correspondence that she had filed in the Court. That is to say it appeared to be accepted by the Valuer-General’s solicitor that the subject land was a 1 See for example NR and PG Tow v Valuer-General [1978] 5 QLCR 378. -- 4 of 6 -- 5 rural type of property with no town water, no sewerage, no garbage collection, no street lights and no access to public transport. [25] In the course of the appeal argument ensured about the observation by Mr Fitzpatrick that the land was designated rural as at 1 October 2009 (the relevant valuation date). Ms Camilleri contended that it was, in fact, rural residential but I am satisfied that the contention by Mr Fitzpatrick was correct. [26] I am also satisfied that Ms Camilleri’s misapprehension derived from correspondence received from Councillor Gary Parsons on 14 October 2010 and from the team leader Rating Services for the Moreton Bay Regional Council on 9 December 2010. That correspondence makes it clear that the categorisation of the Camilleri land was pursuant to a consolidated regional rating policy which placed properties into particular categories when they are used for residential and farming purposes in circumstances where, apparently, the Camilleri land had been incorrectly recorded as farming property when its land use was more appropriately described as R1 (Residential-Owner Occupied) category. The correspondence from the Moreton Bay Regional Council of 9 December 2010 states clearly “the change in the rating categorisation has not affected your property zoning”. [27] In the course of his evidence the valuer Mr Fitzpatrick observed, commenting on the zoning as “rural” that “this only allows the subject to be used basically for a rural house site and for ancillary type grazing or other agricultural purposes which the owner may wish to undertake, depending on the situation”. [28] With respect to the flooding issue raised by Ms Camilleri, I came to the view that Mr Fitzpatrick had a cogent explanation for the relevance of that in the context of rural land. In response to question from me as to whether Mr Fitzpatrick recalled Ms Camilleri having told the Court that the front corner of her block had low lying water and boggy conditions attached to it, Mr Fitzpatrick observed: “Yes, I note - yes, your Honour, I note that she has a dam constructed near the road there and like any - I would say any dam that we would have seen in our travels yesterday, most of those dams would probably come close to overflowing with the recent rainfall and downstream from those overflows you're going to experience wet areas. Those areas are - which, on the subject property, drain towards the road in the south-east corner and it could avail itself to construct another dam in that corner to capture that water as well.” [29] In his report with respect to each of the comparable sales, Mr Fitzpatrick provided a comparison to the subject land. With respect to each of the comparable sales he made the following observations: Sale No. 1: Spratt Road Located 400 metres north of the subject land, the sale adjoins the State Forest on two boundaries (northern and western). The sale is slightly smaller in size than the subject. The -- 5 of 6 -- 6 low wet area in northwest corner has been developed as a dam for irrigation. The sale is overall superior as a home site. Sale No. 2: Wallace Road The sale is larger in size. It is located in a quieter location but, with poorer access. The sale is overall superior as a home site. Sale No. 3: Beachmere Road The land is larger in area than the subject land. A large area of the land is subject to flooding. Access to the land is poorer as the road is subject to flooding which can temporarily restrict access. The line of vision when leaving the land is poorer than the subject. The sale is overall inferior as a home site. Sale No. 4: Old Toorbul Point Road The land is larger in area than the subject land. It has a superior access but the shape of the land is inferior. The sale is overall comparable as a home site. [30] In the course of her cross-examination of Mr Fitzpatrick it became clear that Ms Camilleri was focused on the apparent $220,000 increase in the unimproved valuation over a period of five years. Mr Fitzpatrick expressed the view that having regard to the fact that on a simple percentage basis the land appeared to have gone up by about 12.5% per year, that was in keeping with the change in values in the area. I am satisfied that that is the case. Mr Fitzpatrick was not, in any effective way, challenged in that view. He was able to point to some sales evidence which showed a much more substantial increase than that which has applied to the Camilleri land. [31] He expressed (T.1-69 L48) the view that he stuck with a more conservative valuation increase than he might otherwise have applied had he had more sales which showed higher rates of percentage increase. [32] In all of the circumstances I accept the evidence given by Mr Fitzpatrick as to the appropriate valuation if the subject land. He was not, as I indicated above, challenged in any effective way by the cross-examination of Ms Camilleri. While I accept that she has strongly held views as to the appropriate value of her land I can find no basis for disagreeing with the evidence advanced by the Valuer-General and accordingly I determine that the value of the Camilleri land will remain unchanged from that determined by the Valuer-General in its correspondence of 13 July 2010 namely that the appropriate unimproved valuation of the subject land pursuant to the provisions of the Valuation of Land Act 1944 is Five Hundred and Forty Thousand Dollars ($540,000). HIS HONOUR, WL COCHRANE MEMBER OF THE LAND COURT -- 6 of 6 --