Dutton v Department of Natural Resources and Mines [2007] QLC 91

LAND COURT OF QUEENSLAND CITATION: Dutton v Department of Natural Resources and Mines [2007] QLC 91 PARTIES: Alfred George Thomas Dutton (appellant) v. Chief Executive, Department of Natural Resources and Mines (respondent) FILE NO.: AV2005/0429 DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under the Valuation of Land Act 1944 DELIVERED ON: 31 October 2007 DELIVERED AT: Brisbane HEARD AT: Mareeba MEMBER Mr RP Scott ORDER: The appeal is dismissed CATCHWORDS: Valuation of Land Act – s.31(1)(b) – unimproved value – assumption that improvements did not exist – inconvenience of location of existing improvements not relevant. APPEARANCES: Mr AGT Dutton in person Ms L Marshall (Senior Lawyer, Department of Natural Resources and Water) for the respondent. [1] This judgment is concerned with an appeal by the landowner against a valuation by the Chief Executive as at the relevant date of 1 October 2004 under the provisions of the Valuation of Land Act 1944. The grounds of appeal are sufficiently wide to encompass the issues which arose between the parties. The main issue relates to the location of a sewerage line down the eastern boundary of the subject land and cutting across the south- -- 1 of 5 -- 2 eastern corner and exiting at the southern boundary. The appellant's concern is that the location of this sewerage line is such that it prevents the construction of a swimming pool on the land. [2] Alfred George Thomas Dutton appeared on his own behalf and gave evidence in support of his appeal. Robert Grant Moroney, a registered valuer, provided valuation evidence in support of the Chief Executive's valuation figure of $37,500. The appellant had successfully objected against the original valuation of $39,500, but considers that the valuation should be reduced further to $30,000. [3] The subject land is Lot 10 on Registered Plan 732898 in the Parish of East Barron and County of Nares. It is located at 15 Oleander Drive, Yungaburra on the Atherton Tableland west of Cairns. The land is in an estate more recently developed than the older parts of Yungaburra so enjoys all services and good easy access via a dual lane bitumen formed and kerbed road. The land is a near regular shaped lot with a north-easterly aspect and is above the elevation of the Oleander Drive road formation and has a steady rise to the rear boundary. As at the date of valuation there was on the land a low set masonry block dwelling and a steel shed which were developed by Mr Dutton. [4] Mr Dutton is 81 years of age and for the purpose of maintaining his health requires that a swimming pool be constructed on the land which he can then use for the purpose of exercise. The difficulty that he confronts, however as I indicated above, is that the proposed location of the swimming pool in the south-eastern corner is compromised by the existence of the sewerage lines. Mr Dutton told me that he had been advised prior to the construction of the residence on the land that the sewerage line would be differently located leaving the south-eastern corner for his proposed pool. The shed was constructed after the sewerage line was installed. [5] During the hearing of the appeal there was some debate between the parties as to whether a swimming pool might be located adjacent to the south-eastern corner of the land were the shed to be moved. I was also told about there being a vegetable garden in the back yard and a large grapefruit tree planted in the south-eastern corner by Mr Dutton. This debate comes to nought however, when I consider the obligation of the Court and the Chief Executive under the provisions of the Valuation of Land Act. I refer to s.3(1)(b) of the Act. "3 Meaning of unimproved value (1) For the purposes of this Act— unimproved value of land means— … -- 2 of 5 -- 3 (b) in relation to improved land—the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require, assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist." (my emphasis) [6] Section 6 of the Act sets out a definition of improvements which I will not repeat here given its length, however it is quite clear to me on a reading of that definition that the house and shed on Mr Dutton's land are improvements. Indeed, there is probably no need to refer to the Act as there is no difficulty in concluding that on a normal use of the English language these structures are improvements on the land. Now s.3 of the Act makes it clear that the valuation has to be carried out "assuming … the improvements did not exist". Nothing can be clearer but that the improvements on the land are to be assumed as not there and the land valued as if that were the case. [7] Mr Dutton agreed that given the size of the subject land (1,046 square metres) and assuming the sewerage lines were in existence on the land as I have described earlier, that a house, shed and swimming pool could readily be located on the land. Now I realise that this is a rather artificial way to approach the valuation of Mr Dutton's land, however it is such artificiality that s.3(1)(b) of the Valuation of Land Act requires. So the question is one of whether the land could be developed in the manner hoped for by Mr Dutton assuming it were vacant, not whether it could be so developed on the basis that the house and shed are on the land. Viewed in that manner the complaint by Mr Dutton that he can no longer construct a swimming pool in the south-eastern corner of the land becomes irrelevant because the question is not one of whether he can do it now or for that matter on 1 October 2004 but whether he could have done it with the buildings not on the land. It is not relevant, to the value of the land, that Mr Dutton may have been misled at the time he built his house as to the proposed layout of the sewerage system. The fact is that the sewerage system was in place on 1 October 2004. [8] Mr Dutton also raised an issue concerning the possibility of constructing a granny flat on his land. He said that such an addition to the structures presently on the land would not be feasible given the location of the sewerage line. It will be clear from what I have said about the swimming pool that there is no issue here. That is because, viewing the land as unimproved, one could readily envision the construction of a house together with granny flat, swimming pool and a garden shed. [9] Mr Dutton mentioned other valuations of the Chief Executive at No. 3 and 9 Oleander Drive to the east of the subject land. Mr Moroney explained that those valuations were the product of the mass appraisal approach employed by the Chief Executive. Nevertheless he indicated that it was his opinion that the valuation placed on Mr Dutton's -- 3 of 5 -- 4 land was in correct relativity to those other valuations. In his valuation report, Mr Moroney referred to four sales in Yungaburra in the vicinity of the subject property in placing his valuation figure on Mr Dutton's land. The importance of sales evidence in valuation cases was stressed by the Land Appeal Court in Clough v Valuer-General1 "It has been judicially laid down many times and in many jurisdictions that in ascertaining unimproved value, sales of unimproved land of comparable quality, situation, etc., to the subject parcel, if they are available, are to be preferred as the best guide for arriving at unimproved value. The reason is obvious. In applying such sales there is no room for error in analyzing the value of improvements." [10] The proposition that sales evidence is to be preferred to relativity between statutory valuations was put beyond doubt by the Land Appeal Court in Grahn v Valuer General2 where the Court recorded these propositions with approval: "(a) It is desirable that valuations made for the purposes of the Valuation of Land Act 1944 of comparable lands should bear proper relativity, one to the other, so long as the valuations are soundly based. It is, however, untenable to adopt a value for one parcel on relativity with another which has no sound basis. (R and MM Barnwell v The Valuer-General (1989) 13 QLCR 13, at p. 16 and cases cited in it." (e) Whilst maintenance of correct relativity is of considerable importance for rating valuations, the use of the principle of relativity should not be preferred to the exclusion of relevant (even if not ideal) sales evidence (WM and TJ Fischer v the Valuer-General (1983) 9 QLCR 44, at p.46." [11] It follows from what I have said above that the sales evidence referred to by Mr Moroney provides better evidence of market value than the mass appraisal relativity properties referred to by Mr Dutton. I have looked closely at the detail of Mr Moroney's sales and cannot see in his comparison between those sales and the subject land that he has made any error of principle or any significant error of fact. Apart from that the sales, which are found in the same estate as Mr Dutton's property provide the advantage in bearing great similarity to the subject land in terms of access, street lighting, location and such like. [12] The net result of my consideration of the evidence is that I cannot find that Mr Dutton has demonstrated to me that the Chief Executive's valuation at $37,500 for the subject land is too high. It is difficult for a lay person such as Mr Dutton to produce evidence and argue a case such that it will upset a case presented by the Chief Executive with the aid of an expert witness such as Mr Moroney. Indeed that has been recognised by the Land Appeal Court in JL and I Qualischefski & Ors v Valuer-General3, where the Land Appeal Court said at 172: "The reasonableness of the allowances that have been made is always open to challenge on objection or appeal. However upon appeal a statutory onus of proof is cast upon the appellant and he has to accept, within the confines of the grounds set out in his Notice of 1 (1981) 8 QLCR 70 at 76. 2 (1992) 14 QLCR 327at 328. 3 (1979) 6 QLCR 167. -- 4 of 5 -- 5 Appeal to the Land Court, the burden of proving the Valuer-General incorrect. Neither this Court nor the Land Court in the subject jurisdiction may assume the role of an investigating tribunal requiring the Valuer-General to substantiate his case. This is in contradiction to jurisdiction conferred under the Land Act. In appeals of the nature of the subject, the onus which the appellant must assume is not an easy one to discharge without the assistance of a registered valuer who can lead evidence as to sales analyses and/or comparison with valuations made by the Valuer-General in respect of comparable properties." [13] For the above reasons, the appeal is dismissed and the valuation of the Chief Executive is affirmed. RP SCOTT MEMBER OF THE LAND COURT -- 5 of 5 --