Clayton v Chief Executive, Department of Natural Resources, Mines and Water [2006] QLC 36

LAND COURT OF QUEENSLAND CITATION: Clayton v Chief Executive, Department of Natural Resources, Mines and Water [2006] QLC 36 PARTIES: Betty Ann Clayton (Appellant) v. Chief Executive, Department of Natural Resources Mines and Water (Respondent) FILE NO: A2005/1255 PROCEEDING: An appeal against an annual valuation of land under the Valuation of Land Act 1944 DELIVERED ON: 16 June 2006 DELIVERED AT: Brisbane HEARING DATE: 14 June 2006 MEMBER: Ms F.Y. Kingham ORDER: The Appeal is dismissed. CATCHWORDS: Comparable sales – reliability of sales evidence – onus of proof where no sales evidence relied on by the appellants. Valuation of Land Act 1944 APPEARANCES: Mr Fitzgerald – as agent for the Appellant Ms Liu – of DNR&M Legal Services for the Respondent [1] Betty Ann Clayton (the Appellant) appealed against the assessment of the unimproved value of her land by the Chief Executive, Department of Natural Resources, Mines and Water (the Respondent), pursuant to the Valuation of Land Act 1944 (VLA). Background [2] Mrs Clayton’s property is located at 429 Kessels Road, Nathan more particularly described as Lot 2 on Registered Plan 174116, Parish of Yeerongpilly, County of Stanley. It is one of a row of 25 residential lots within the suburb of Nathan approximately 11 radial kilometres southeast of the Brisbane GPO. These houses are -- 1 of 3 -- separated from other residential lots in Nathan by Griffith University, Nathan Campus and by Toohey Park. [3] This 700m2 rectangular shaped block fronts Kessels Road, a major arterial road which carries a huge volume of traffic between the Gateway and Ipswich Motorways. It is identified by planning authorities as part of the Brisbane Urban Corridor (BUC). Consequently, the site is affected by significant traffic noise and pollution. [4] The land is designated “Low Density Residential Area LR” under the Brisbane City Plan 2000, which allows for construction of detached houses of up to two storeys in height. Currently there is a single storey private residence on site and was valued under s. 17 VLA as a site for use as a “single dwelling house”. [5] The Chief Executive’s assessment of the unimproved value of the site was $172,500. In her Notice of Appeal, the Appellant estimated its value at $90,000. [6] The unimproved value of improved land, is assessed in accordance with s.3(1)(b) and s.3(2) of the VLA which relevantly provide: "3. (1) For the purposes of this Act – ‘unimproved value’ of land means – (a) … (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. (2) However, the unimproved value shall in no case be less than the sum that would be obtained by deducting the value of improvements from the improved value at the time as at which the value is required to be ascertained for the purposes of this Act." [7] The Appellant bears the onus of proving every ground of appeal (s. 45 VLA) and that the valuation is not correct (s.33). The Appellant filed a statutory declaration and her grandson, Mr Fitzgerald, who represented her, gave oral evidence. Whilst the grounds of appeal were cast more widely, at the hearing, the evidence was primarily directed to challenging the comparability of the sales evidence relied upon by the Department’s valuer. The Appellant did not refer to any alternative sales evidence to support either the estimate of $90,000 or any other estimate of value. [8] Mr Vun, a registered valuer employed by the Department, prepared a valuation statement and gave evidence on behalf of the Respondent. The valuation methodology he adopted was the direct comparison method relying on sales of vacant land from which, he considered, meaningful comparisons could be made. The Appellant took no issue with that methodology and it has been well established in this jurisdiction that the best evidence of unimproved value is sales of unimproved or lightly improved comparable blocks. [9] In his report, Mr Vun described the subject site as “affected by significant traffic noise and pollution emanating from Kessels Road.” and noted that there is a separate market for properties located on an arterial road. Accordingly, the sales he selected for comparison were of vacant blocks on arterial roads affected by similar, although -- 2 of 3 -- not identical, traffic conditions. One sale was of a block of land on Mt Gravatt- Capalaba Road, also part of the BUC and carrying similar traffic that extends from Kessels Road. [10] During cross-examination, Mr Vun readily agreed with most of Mr Fitzgerald’s observations as to the differences between those properties and the subject property, although they differed on their significance. He stated that he had taken those differences into account when making his assessment of the value of the subject site. The most significant difference between the sites was the size of the blocks. Each of the sales he relied upon was of a block significantly smaller than the subject site. [11] Nevertheless, the other features drawn out in his report and during his evidence, including the volume of traffic, access to the property and the location of amenities such as on street parking and bus services, were of some significance. This is reflected in the valuation. On a pro rata area basis, the unimproved value of the subject block was less than that of the comparable sales. The Appellant contended that the margins between the subject site and the sale blocks (sale 1 - 22%; sale 2 – 27.9%; and sale 3 – 8.8%) were not great enough. I was not persuaded, however, that Mr Vun had made any error in his analysis of the comparable sales or had incorrectly applied them in his assessment of the subject site. [12] Much of Mr Fitzgerald’s questioning of Mr Vun related to whether a hypothetical prudent purchaser would regard the site as more closely connected with Nathan or with Robertson. Mr Vun regarded the site as more closely connected with Robertson although it is within the suburb of Nathan. As none of the sales relied upon by Mr Vun were located in either Nathan or Robertson, this evidence had no bearing on my decision. [13] The Appellant has not established that the valuation is excessive or affected by error. Accordingly, the appeal is dismissed. -- 3 of 3 --