Feher v Department of Natural Resources and Water [2006] QLC 60

LAND COURT OF QUEENSLAND CITATION: Feher v Department of Natural Resources and Water [2006] QLC 60 PARTIES: Laslo Feher (appellant) v. Chief Executive, Department of Natural Resources and Water (respondent) FILE NO.: AV2005/0558 DIVISION: Land Court of Queensland PROCEEDING: An appeal against a valuation of land under the Valuation of Land Act 1944 DELIVERED ON: 27 September 2006 DELIVERED AT: Brisbane HEARD AT: Cairns MEMBER Mr RS Jones ORDER: The appeal is dismissed. CATCHWORDS: S.33 Valuation of Land Act 1944 – presumption of correctness - onus of proof – comparable sales evidence. APPEARANCES: Mr L Feher in person for the appellant Mr W Isdale of counsel for the respondent [1] These proceedings concern an appeal by Mr Laslo Feher (the appellant) against the unimproved value assigned to his land by the Chief Executive, Department of Natural Resources and Water (the respondent). Background: [2] The subject land is situated in a rural location approximately 5 kilometres west of the township of Babinda and approximately 65 kilometres by road south of the Cairns -- 1 of 4 -- 2 Central Business District. The nearest town with substantial shopping facilities is Innisfail which is located approximately 35 kilometres to the south. Notwithstanding that Babinda is a relatively small rural township it offers a number of services and amenities including shops, primary and secondary schools, sporting grounds and a public swimming pool. The Babinda area is one of the wettest regions in Australia and receives annual rainfall of in the order of 4 metres plus. [3] The land comprises of an area of 19.68 hectares and is described as Lot 1 on Registered Plan 800955, Parish of Bellenden Kerr, County of Nares. At the relevant date, 1 October 2004, the land was zoned Rural under the Cairns City Town Plan. Under that zoning, permitted development included the construction of a dwelling house. As at the date of valuation the land was effectively vacant but with a tropical fruit tree orchard in the process of being established. The evidence of Mr Feher was that the orchard, to a large extent, was devastated by the recent cyclone Larry weather event. Construction of a dwelling on the land has more recently commenced. The land was previously developed for sugar cane production but that use has since been abandoned. [4] The appellant has appealed the respondent's assessment of the unimproved value of the land determined as at 1 October 2004 (effective as at 30 June 2005) in the amount of $110,000. The appellants estimate of the unimproved value of the land is $80,000. [5] The appellant represented himself in the appeal. The respondent was legally represented by Mr W Isdale of counsel and relied on the evidence of Mr S Glover, a registered real estate valuer also employed by the respondent. Issues in the appeal [6] Pursuant to s.33 of the VLA, the valuation appealed against is deemed to be correct and therefore the appellant bears the burden of proving that it is wrong. In Brisbane City Council v The Valuer-General1, the High Court considered that the presumption in favour of the correctness of this statutory valuation may be rebutted where it can be shown that the valuation was based on a wrong principle and/or involved a significant error of fact and/or was made by a fundamentally erroneous method. Importantly, s.45(4) of the VLA further provides that the appeal is limited to the grounds stated in the notice of appeal and that the burden of proving each and every ground of appeal relied on also rests with the appellant. [7] The facts and matters relied on by the appellant are substantially set out in his statement of evidence (Exhibit 2). In his statement, the appellant identified a number of matters 1 (1977-78) 140 CLR 41 at 56 – 57; see also Cominos and Co Pty Ltd v Chief Executive, Department of Lands (1996-97) 16 QLCR 311 at 331 -332 (LAC). -- 2 of 4 -- 3 which he says the respondent had insufficient regard to when determining the unimproved value of the land. Without wishing to understate all of the matters set out in Exhibit 2 it appeared to me that the more significant ones were those associated with the overall topography of the land combined with the heavy rainfall experienced in the Babinda district. Of particular concern were erosion, drainage and accessibility. In this context the appellant contended that the land was particularly difficult and expensive to maintain. The appellant provided no sales evidence in support of his estimate of the unimproved value of the land. [8] Mr Glover, in his valuation report (Exhibit 3) described the physical characteristics of the land in the following terms: "The southern section of the property comprises about 6.6 hectares (34%) of mixed lower lying and relatively higher easy sloping country cleared to grass with some fruit trees. The lower lying areas are partially prone to short periods of inundation and wetness. In the north about 4.0 hectares (20%) is elevated with moderate to steep slopes and is cleared with some regrowth. In the south east is 1.8 hectares (9%) comprising a hill with steep to very steep slopes, previously cleared with regrowth. The remaining 7.28 hectares (37%) is generally steep to very steep hills and gullies vegetated with rainforest or previously cleared with regrowth. An unnamed gully emerges from surrounding rainforest and passes through the property." This description of the land was not challenged by the appellant. [9] In his report Mr Glover also identified that about 25% of the property is identified as remnant vegetation on the State's Regional Ecosystem Mapping and that the land, along its northern boundary, adjoins a Wet Tropics World Heritage Area. [10] Having regard to the physical characteristics of the land and its designation under the City of Cairns Town Planning Scheme it was Mr Glover's opinion that the highest and best use of the land was for a rural home site. It was also Mr Glover's opinion that a number of potential home sites existed on the land. The appellant, while not contesting the highest and best use attributed to the land by Mr Glover, contended that the topography of the land was such as to provide only a very limited number of potential home sites. On this particular point I prefer and accept the evidence of the appellant. [11] In reaching his conclusion about the unimproved value of the land Mr Glover relied on seven sales which occurred within the general vicinity of the subject. [12] Having regard to all of the evidence concerning the sales I have reached the conclusion that Sales one, two, three and four do not provide any reliable evidence of value. It was Mr Glover's evidence that his Sale 1 was a "high" sale. To an extent this is verified by the fact that while the analysed unimproved value of the sale was $183,575 the applied unimproved value was only $130,000. Sales 2 and 3 are in my opinion too small to be able to be directly applied to the subject. This is particularly so in respect of Sale 3 -- 3 of 4 -- 4 which is only 3,446 m² in area. In respect of Sale 4 it again was Mr Glover's evidence that this was a "high" sale and that there was some doubt about just how prudent the purchasers of the land were. Again, this is confirmed to an extent by the fact that while the analysed unimproved value produced by this sale is $159,000 the applied unimproved value was only $85,000. [13] On the other hand, it is my opinion, that Sales 5, 6 and 7 do provide reliable evidence of the unimproved value of the subject land. Mr Glover's analyses of these sales was not challenged and, as mentioned above, the appellant did not provide any evidence of sales to either support his estimate of value or to contradict the value contended for by the respondent. [14] Overall I am satisfied that the unimproved value of $110,000 is able to be supported by reference to reliable sales evidence and that in reaching his valuation Mr Glover had due regard to all of the negative characteristics of the land as identified by the appellant in his written statement and oral evidence. [15] For the reasons canvassed above I have reached the conclusion that the appellant has failed to prove that the respondent's assessment of the unimproved value was wrong and should be varied. [16] Accordingly, the appeal must be dismissed. Order The appeal is dismissed. RS JONES MEMBER OF THE LAND COURT -- 4 of 4 --