Eather v Department of Natural Resources and Water [2006] QLC 71

LAND COURT OF QUEENSLAND CITATION: Eather v Department of Natural Resources and Water [2006] QLC 71 PARTIES: Darren James and Lynelle Louise Eather (appellants) v. Chief Executive, Department of Natural Resources and Water (respondent) FILE NO: AV2005/0849 DIVISION: Land Court of Queensland PROCEEDING: An appeal against an annual valuation of land under the Valuation of Land Act 1944. DELIVERED ON: 27 October 2006 DELIVERED AT: Brisbane HEARD AT: Toowoomba MEMBER: Mr RS Jones ORDER: The appeal is dismissed. CATCHWORDS: Unimproved value of land – Valuation of Land Act 1944 – presumption of correctness – onus of proof – reliable sales evidence – vegetation management issues. APPEARANCES: Mr D Eather, for the appellant Mr M Heather, Senior Legal Officer employed by the respondent [1] Mr and Mrs Eather, the appellants, have appealed against the unimproved value applied to their land by the Chief Executive, Department of Natural Resources and Water, the respondent to the appeal. The valuation appealed against is $111,000 and the appellants' estimate of the unimproved value is $60,000. The relevant date for the valuation is 1 October 2004, effective 30 June 2005. -- 1 of 4 -- 2 [2] The appellants were represented by Mr D Eather who was also their only witness. The respondent was legally represented by Mr Heather, a senior legal officer employed by the respondent and relied on the evidence of Mr B Taylor, a registered real estate valuer employed by the valuation firm JD Dodds. [3] The subject land adjoins a parcel of land owned by Wickham Industries Pty Ltd of which Mr Eather is a director. That land is also the subject of an appeal1 against the unimproved value applied to it and the grounds of appeal are identical in both appeals. Mr Eather also represented Wickham Industries and was the only witness called in that appeal. In such circumstances it is not surprising that the issues and findings in the respective appeals are materially the same. Issues In The Appeal [4] The subject land is situated on the southwest corner of Bracker Road and Thornton Road about four kilometres southwest of the Warwick General Post Office. The land is more properly described as Lot 1 on Registered Plan 146443 Parish of Rosenthal, County of Merivale and contains an area of 13.27 ha. As at the date of valuation the land was vacant and zoned "Residential" under the town planning provisions of the Warwick Shire Council [5] It had been the intention of Mr and Mrs Eather and the directors of Wickham Industries to, consistent with the zoning of their land, jointly develop both lots for smaller lot residential purposes. However, the evidence of Mr Eather was that any subdivision of the land was effectively prevented because of restrictions on clearing imposed over both blocks. According to Mr Eather both parcels of land are recorded by the respondent and/or the Environmental Protection Agency as containing areas classified "Remnant Endangered Regional Ecosystem". This evidence was not seriously challenged by the respondent. [6] The respondent, through Mr Taylor responded to the case put forward on behalf of the appellants by pointing out that the subject land was valued in accordance with the provisions of s.17 of the Valuation of Land Act 1944 (VLA). Relevantly, s.17 requires the respondent to value the land on the basis of its highest and best use being for a large rural residential home site. This requires the respondent to ignore any added value that the land might have because of any potential for a higher order of use such as small lot subdivision. As I understood his evidence, because of the requirements of s.17 of the VLA Mr Taylor only had regard to sales of larger parcels of land which were purchased 1 Wickham Industries Pty Ltd v Department of Natural Resources and Water (2006) QLC 0070 -- 2 of 4 -- 3 for rural residential type uses regardless of their zoning. Of the seven sales relied on by Mr Taylor four were zoned Rural and three zoned Residential. [7] Mr Eather contended however, that despite the approach adopted by Mr Taylor the subject land was still overvalued because the limitations on clearing and associated maintenance costs were not sufficiently taken into account. [8] Pursuant to s.33 of the VLA, the valuation appealed against is deemed to be correct and therefore the appellants bear the burden of proving that it is wrong. Generally speaking, the presumption in favour of the correctness of the statutory valuation may be rebutted where it can be shown that it was based on the application of a wrong principle and/or involved a significant error of fact and/or was arrived at by a fundamentally erroneous method.2 Also of relevance in this appeal is that, pursuant to s.45(4) of the VLA the appellants are limited to the grounds stated in their notice of appeal and bear the burden of proving each ground of appeal relied on. At the end of the day the grounds of appeal effectively relied on by the appellants were: (i) (The valuation) is unfair and unreasonable. (ii) The valuation does not take account of appropriate comparison (sic) sales and has been based on inappropriate sales. [9] The sales evidence relied on by Mr Taylor consists of four sales which occurred prior to 1 October 2004 and three sales which occurred after that date. Overall, I am of the opinion that the after date sales are of only limited assistance in the circumstances of this appeal. I have reached this conclusion because, first, no reliable evidence was given as to how (if at all) the market had changed between October 2004 and the date of the sales. And, second, no explanation was given for the wide discrepancy between the "applied" and "analysed" unimproved values attributed to the property located in Newby Street. In any event, as I understood the evidence of Mr Taylor about this, the after date sales did not really add much to the evidence of value established by his first four sales. [10] The evidence of Mr Taylor was that none of the sales relied on by him were affected by vegetation management and clearing issues. However, his evidence was also to the effect that he knew about the vegetation management issues affecting the subject land when he valued it and the restrictions raised by the appellants did not affect or alter his comparison of the land with his sales evidence and that there was no market evidence to suggest that the market value of rural residential blocks was materially affected by those restrictions. 2 Brisbane City Council v Valuer General (1978) 140 CLR 41 at 56-57: see also G Cominos & Co Pty Ltd v Chief Executive, Department of Lands (1996-97) 16 QLCR 331 at 311-332 (LAC). -- 3 of 4 -- 4 [11] As was the case in the Wickham Industries appeal already referred to I was initially surprised to an extent by the evidence of Mr Taylor about these issues. However, as was also the case in that appeal, Mr Taylor's expert opinion on these issues was not seriously challenged and the appellants did not refer me to any sales evidence which supported the value contended for by them or which tended to contradict the level of value contended for by the respondent. [12] On balance, I have reached the conclusion that the appellants have failed to prove that the valuation appealed against is wrong and ought to be varied. Accordingly, the appeal must be dismissed. Order The appeal is dismissed. RS JONES MEMBER OF THE LAND COURT -- 4 of 4 --