Dewberry v Department of Natural Resources and Mines [2004] QLC 88

LAND COURT OF QUEENSLAND CITATION: Dewberry v Department of Natural Resources and Mines [2004] QLC 88 PARTIES: Patricia Dewberry (applicant) v. Chief Executive, Department of Natural Resources and Mines (respondent) FILE NO: AV2003/0505 DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under Valuation of Land Act 1944 DELIVERED ON: 15 October 2004 DELIVERED AT: Brisbane HEARD AT: Gladstone MEMBER Dr NG Divett ORDER: The appeal is dismissed, and the unimproved value of Lot 2 on SP 100337 as determined by the Chief Executive in the sum of Seventy-Nine Thousand Dollars ($79,000) is affirmed. CATCHWORDS: Valuation – Factors in valuation – Access – Changes to access – Local authority duty of care Relativity – site value – Changes in relativity – Impact of access APPEARANCES: Mrs P Dewberry appeared on her own behalf Mr K Fisher for the respondent Background: [1] This matter relates to land at 2 Daly Road, Woodstock Estate, Gladstone, and described as Lot 2 on SP 100337, Parish of Tondoon. The subject land has an area of 7.432 hectares, -- 1 of 14 -- 2 and is located about 12 kilometres south of the Gladstone Post Office. The subject land is a vacant rural residential site, and is zoned as Rural – Non Urban under the Town Plan of the Gladstone City Council of 15 June 1997, effective at the date of valuation of 1 October 2002. Electricity and telephone services are available, and access to the site is limited, and is a key issue in this matter. The key issues are the nature of physical access, relativity and comparison of sales. [2] In February 2003 the Chief Executive issued a valuation of the subject land at $79,000. Following an objection the Chief Executive confirmed that figure on 1 July 2003. The appellant has now appealed claiming the unimproved value should more properly be $40,000. [3] Patricia Dewberry appeared and gave evidence on her own behalf. Mr K Fisher, Counsel of Crown Law appeared for the respondent, calling evidence from Barend Haks, the departmental registered valuer responsible for determining the valuation. History of the appeal – [4] Mrs Dewberry advises that, on advice from her legal representative, and on the land developer's undertaking to provide an all-weather gravelled access along Daly Road from the west, the appellant entered into an unconditional contract to purchase the subject land on 31 July 2000. The land developer had apparently had a previous arrangement with the Gladstone City Council (the Council) to allow for the sealing of the plans of survey by the Council, on the undertaking by the developer to complete any road access works. Mrs Dewberry and her legal advisers were of the understanding that the gravelled road construction of Daly Road was to be completed by 31 August 2000. [5] However Mrs Dewberry subsequently found that the previous arrangements between the developer and the Council in respect of the acceptance of unsealed roads, was then changed. The Council now refused to accept ongoing responsibility for the maintenance of gravel roads, and now requires all subdivisional roads to be bitumen sealed. Meanwhile Mrs Dewberry had been advised by the developer that she personally could accept responsibility for the ongoing maintenance along Daly Road, which the developer had then been prepared to construct. However the Council then refused permission for those roadworks to proceed. [6] On her understanding that she could personally arrange for the formation of Daly Road, Mrs Dewberry obtained engineering advice and costs from Martin and Co., Engineering Consultants Pty Ltd for the upgrading of Daly Road (Exhibit 2 – Enclosure 4). Those estimates involved upgrading to provide two-wheel drive access from Glenlyon Road to the subject land, including five piped culverts, one of which was across Tondoon Creek, -- 2 of 14 -- 3 at an estimated cost of $25,000. It was anticipated that the works would be undertaken by another contractor other than the original developer. However the Council refused for any works along Daly Road to proceed unless the appellant gave an unconditional guarantee to prevent access by others, a matter she was unable to agree with. As a result of that decision, certain materials provided by the original developer, including culvert pipes and 300 cubic metres of stone, continue to lie upon the subject land. [7] While Mrs Dewberry concedes that the official date of the contract of sale of the subject land was recorded as 6 August 2001, she argues that she had entered an unconditional agreement to purchase the land on 31 July 2000. That had been based on the previous understanding of providing access along Daly Road, which both she and her legal adviser had hoped would eventuate. She argues that it was the original developer who had to get the permission from the Council, and actions were undertaken through her legal adviser. However she agrees that she waived her right to rescind the contract of sale on 31 July 2000. She notes also that at that time there was an old gravel two-wheel drive access along Daly Road, and she had entered the subject land without problems from that direction. She advises that the vendor/developer had spoken to the Council planning department about July 2000, and understood that approval for a gravel road along Daly Road would be forthcoming at that time. [8] In respect of his knowledge of the conditions of the sale of the subject land, Mr Haks agrees that he had no knowledge of the actual contract documents, and he relies only upon the date of sale of 6 August 2001 recorded in the departmental records. He also agrees that the only person seeking access along Daly Road from Glenlyon Road would be the appellant. Mr Haks agrees he was the valuer responsible for both the 1 October 2000 valuation and the current matter at 1 October 2001, and concedes that the first time he visited the subject land was when he analysed the sale of the subject land for the current valuation, post-6 August 2001. He agrees that at that time the access across Tondoon Creek along Daly Road had been severely washed out, and he could not compare the condition of Daly Road with its nature at 1 October 2000. Nature of the land – [9] The subject land is an irregular shaped rural residential parcel, mainly easy to gentle undulating country, and moderately covered with gum and forest timbers, with light grey sandy clay soils. Building sites are available mostly across the parcel, and while well elevated, there are only minor rural views due to the natural vegetation. There was no evidence of distant views. The land has no major gullies which are typically found on other parcels in that area. There is a Council water main easement along the south- -- 3 of 14 -- 4 western boundary of the subject land, and there is an old existing access track along that water main. There is also a natural waterway along the north-western side of the subject land (Lot 5 on SP 100337). Both parties agree on these matters. Access to the land – [10] The physical access to the subject land is the key issue between the parties. The appellant argues that at the date of the previous valuation at 1 October 2000, and about the time the appellant purchased the land, physical access by conventional two wheel vehicle was available along Daly Road to the subject land. She argues that since that date, as a consequence of earthworks associated with the school site at the corner of Glenlyon Road and Daly Road, that access has been eroded, and access from that direction is now not practical. As a consequence she argues that the relative value of the subject land compared to surrounding parcels should have declined due to that reduced access. [11] In explaining how the access along Daly Road has been influenced by road and site works at the school site, and also from a culvert across Glenlyon Road, Mrs Dewberry argues that as a result of those earthworks a second culvert was now seen as necessary by her consulting engineers. She explains that occurred in filling the northern side of the school near Daly Road in order to develop a car parking area. As a result of those earthworks, the surface waters were then channelled into Tondoon Creek across Daly Road, thus increasing the impact of erosion. The Council apparently then decided that in view of that drainage, coupled with current restricted line of sight clearances near Glenlyon Road, the Council decided apparently to let Daly Road decline in accessibility, and in effect close the road for safety reasons. It is noted however that there has been no action by the Council to permanently close Daly Road by Executive Council approval. [12] Mrs Dewberry has had extensive discussions with the Council in seeking to upgrade Daly Road, with no result. Council officers apparently indicated to her that future road planning for that area indicated a possible collector road parallel to Glenlyon Road, leading from Glen Eden Drive to the north, or from Victoria Avenue to the north. Until those collector roads eventuate, Mrs Dewberry notes that neither herself, or her only neighbour to the west of the subject land (Lot 1 on SP 100337), will have access towards the west. However it is noted that Lot 1 on SP 100337 also has direct access to the south to Kirkwood Road, thus leaving the subject land as the only parcel without physical access towards the west. [13] To further support her claim that access along Daly Road is not planned by the Council, Mrs Dewberry provides a copy of a new subdivision of Lot 4 on SP 121311 to the north of Daly Road (Exhibit 2 – Enclosure 3). That plan of subdivision shows access to parcels -- 4 of 14 -- 5 backing on to Daly Road only via new roads to the north leading to Victoria Avenue. There is a drainage area across Tondoon Creek in that design, and a major waterway below the 1 in 100 years flood line which also crosses Daly Road. Clearly Daly Road is not seen as providing access to any of those new lots. Mrs Dewberry confirms that as a result of her discussion with the Council officers, they realised that good permanent access to the subject land does not yet exist. [14] To support her claim that the change of road policy by the Council occurred after she purchased the subject land in July 2000, Mrs Dewberry provides a Council map of the arterial road network dated January 2001 (Map B). She notes that shows the proposed sub-arterial collector road passing across Daly Road to the west of the subject land, and also west of the floodway on Lot 1 on SP 100337, west of the subject land. [15] In respect of physical access to the subject land, Mr Haks advises that he agrees that Daly Road does not provide good physical access, but he argues that he has valued the land as having physical access via an unnamed unformed road to the south-east, leading to Kirkwood Road. He notes that the southern part of that unnamed road has been upgraded by the original developer to provide access to a parcel to the south of the subject land at Lot 4 on SP 100337. Mr Haks notes that while the main entrance to the subject land is via that unnamed road off Kirkwood Road, the Daly Road access was seen only as a secondary access route. Mr Haks offers comment that he was advised by the vendor that upgrading of Daly Road could cost about $15,000, but he accepts the consulting engineer's estimate of $25,000 as fair and reasonable. [16] In respect of why he saw the main access to the subject land as towards Kirkwood Road to the south-east, Mr Haks advises that resulted from his discussions with Council officers, and his personal visit to the site in 2002. He had not seen the letter of the Council to the appellant of 20 December 2000 before the hearing. He also agrees that prior to one week before the hearing in June 2004, he was unaware that the Council had effectively "closed" Daly Road, and he was unaware of the Council's proposals in that respect before that date. Mr Haks notes that access via Kirkwood Road covers about 180 metres of formed earth, and then 450 metres of unnamed formed earth and gravel road to the southern boundary of the subject land. He notes the last 200 metres of that formed earth road is moderate to steeply sloping, and is not seen as "all weather with some problems in weather wet". Mr Haks advises that he allowed for those access problems in his valuation, which he argues is steeper and rougher than elsewhere in the area. [17] Mrs Dewberry rejects that the south-east access is an acceptable access, noting that in places it is very narrow, near the aboveground water main, and has soft earthen shoulders, -- 5 of 14 -- 6 leading to a steep cross fall. Mrs Dewberry claims such an access is dangerous, and her representations to that effect have fallen upon deaf ears by the Council. However she concedes that while she has made personal representations to the Council, she has not expressed her concerns officially in writing at that time. Mrs Dewberry advises that she has been driven along the Kirkwood Road access route on three occasions by others, and on each occasion she found the experience "frightening". [18] Mr Fisher notes that the advice from the Council of 20 December 2000 to Mrs Dewberry confirms that Daly Road was closed to vehicle traffic for reasons of safety; and an alternative access was to be provided by Kirkwood Road "where it was legal and practical". Council also decided to carry out maintenance in Kirkwood Road and Daly Road off Kirkwood Road "as required". Mrs Dewberry notes that the use of practical in the understanding of access along the track, has about as much certainty in its meaning as the Council's intentions to maintain the road as required. She argues that the Council would appear to have passed off her concerns with inadequate attention, in spite of her attending Council meetings to protest. [19] Mrs Dewberry further argues that access from Kirkwood Road was never mentioned in her dealings to purchase the land. She argues that the problems in Daly Road only occurred as a result of problems in the design and construction of the Glenlyon and Daly Roads intersection earthworks. Mrs Dewberry further advises that when access via Daly Road had become impossible, she temporarily accessed the subject land via the track along the water main from Victoria Avenue, until somebody blocked that track by placing a pile of earth across the track. She understands that that was never a legal access, as the easement passed across private lands to the north of Daly Road. However Mrs Dewberry notes that the legal current postal address of the subject land continues to be 2 Daly Road. Relativity – [20] To further support her case Mrs Dewberry seeks relativity with adjoining parcels. She notes that the unimproved values for the last two valuations were: Parcel 1 October 2001 1 October 2002 Lot 3 $72,000 $86,000 Lot 1 $80,000 $96,000 Subject land $66,000 $79,000 Mrs Dewberry argues that a uniform 20% has been applied to each of those parcels, while the access to the subject land along Daly Road had actually deteriorated. Mrs Dewberry concedes that she purchased the subject land for $115,000, and Mr Haks advises that reduced value for the subject land reflected the allowance for the problems with access. -- 6 of 14 -- 7 [21] Mrs Dewberry notes that Lot 1 is about twice the size of the subject land, a matter not reflected in the applied value at $96,000 compared to $79,000 for the subject land. Mr Haks notes that rural residential lots are purchased on a site basis, and not on a per hectare basis. It is also noted that the three adjoining Lots 1, 3 and 5 sold as a total package in August 1998 as a total area of about 42 hectares for $250,000. The adjoining Lot 3 to the south-west of the subject land, while basically fronting the unformed earth formation on Daly Road to Kirkwood Road, also has an access easement across the floodway area of Lot 5 directly to Kirkwood Road to the south. On that basis Lot 3 has better access than the subject land. As noted in paragraph [12] Lot 1 also has direct access to Kirkwood Road. [22] Mr Haks advises that the whole of the Woodstock area south of Gladstone had been individually investigated for relativity purposes a couple of years previously. During that relativity check, values had been adjusted where views to the water were available. However he notes that generally where ocean views were available at a home site, the surrounding topography was often broken by gullies, which are not evident on the subject land. When he maintained the same relativity over the two valuations in 2001 and 2002, Mr Haks had formed the opinion that access to the subject land had not changed during that period. Comparison of sales – [23] Mrs Dewberry provides no sales of her own to support her estimate of the unimproved value, but offers some comment on Mr Hakes' sales which he provides as follows:  Sale 1 – (2 Daly Road – Lot 2 on SP 100337). This is the sale of the subject land in August 2001 for $115,000, which was analysed at $114,500 and applied as a high sale at $79,000 (69%). [24]  Sale 2 – (Kirkwood Road – Lot 2 on SP 115782). This is a 10 hectare vacant site located about 1 kilometre south of the subject land, with direct access to formed earth Kirkwood Road. The sale has a good building area with water and rural views. The sale has similar topography, slightly superior shape and size, and similar location, but has superior views and aspect. Overall the sale is seen as superior to the subject land. The sale sold in November 2001 for $138,000, was analysed at $133,000 and applied at $114,000 (86%). [25]  Sale 3 – (Kirkwood Road – Lot 1 on SP 115782). This is a 7.371 hectare site adjoining Sale 2 and has similar features and comparisons with Sale 2, and has slightly superior views and aspect to the subject land. Overall the sale is superior to the subject land. The sale sold in December 2001 for $124,000, was analysed at $119,000, and applied at $91,000 (76%). -- 7 of 14 -- 8 [26]  Sale 4 – (Kirkwood Road – Lot 5 on SP 125535). This is an 8.782 hectare site located about 1 kilometre south of the subject land, and about 0.5 kilometres east of Sale 2. The sale has inferior building contours, slightly inferior shape, but slightly superior size, superior access and similar location, but superior views and aspect. Overall the sale is superior to the subject land. The sale sold in May 2002 for $135,000, was analysed at $125,000, and applied at $108,000 (86%). [27]  Sale 5 – (Koowin Drive – Lot 5 on SP 118590). This is a 4.559 hectare site located about 4 kilometres west of the subject land. The sale has an inferior building topography, shape and size, but slightly superior location and similar views and aspect. However the sale has superior access. Overall the sale is seen as similar to the subject land. The sale sold in July 2002 for $85,000, was analysed at $83,500, and applied at $79,000 (95%). [28]  Sale 6 – (Glenlyon Road – Lot 3 on SP 118619). This is a 9.78 hectare site located about 3.5 kilometres south-west of the subject land. The sale is seen as a superior building site, with superior shape, size and access, and slightly superior location and views and aspect. Overall the sale is seen as superior. The sale sold in September 2002 for $117,000, was analysed at $109,000, and applied at $101,000 (93%). [29] Mrs Dewberry queries the use of Sale 5, as she argues that is a different area to the subject land. Mr Haks notes that Sale 5 has a much smaller building area than the subject land as it is basically a hill top with steeper lands falling away to the east, west and south. However he concedes that Sale 5 does have some views. Mr Haks advises that when the lands were checked for relativity several years ago, the lands were checked for views and access. Decision: [30] Before examining the evidence, I turn to the legislation and note that the meaning of unimproved value of land is defined by s.3(1)(a) of the Act which directs: "3.(1) For the purposes of this Act – 'unimproved value' of land means – (a) in relation to unimproved 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;" [31] In seeking to determine the meaning of what a bona fide seller might mean, I note that the meaning of the test of value relates to the actions of a prudent buyer and seller in a -- 8 of 14 -- 9 transaction, and was clearly established by the High Court of Australia in Spencer v The Commonwealth of Australia (1907) 5 CLR 418, where Isaacs J said at 441: "To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property." [32] That description of a bona fide transaction in land refers to the presence of two prudent people negotiating in full consciousness of the facts surrounding the land being negotiated. In the current matter it would appear that the appellant had a misplaced trust in the vendor developer who promised to complete certain actions in respect of the access of the subject land via Daly Road. As the subsequent evidence has revealed, Glenlyon Road is bitumen sealed to about the intersection with Kirkwood Road, and at least to the school site at the corner of Daly Road. Then a good gravel access along Daly Road would tend to support why the appellant paid $115,000 which, in light of the lesser access now available via Kirkwood Road, seems a high sale. Had the agreed access along Daly Road eventuated, then $115,000 may well have been right on the market. On that basis there is support for the appellant's assertion that the ground rules for the negotiation of the subject land had shifted after July 2000. [33] Mr Haks agrees that he had not inspected the Daly Road access prior to his reason to visit the sale of the subject land after its consummation of 6 August 2001. He agrees that his understanding of the main access to the subject land was conditioned by his discussions with the Council. However as the original relativities were revised some time prior to 2001, then it is possible that the conditions of access to the subject land may not have been fully understood by Mr Haks in his valuation at 2001. Relativity – [34] In respect of Mrs Dewberry's concerns that the adjoining parcel at Lot 1 is twice the size of the subject land, and Mr Haks' advice that rural home sites are valued on a site basis, I note that was upheld in Hans and Else Grahn v Valuer-General (1992-93) 14 QLCR 327, where the Land Appeal Court said at 330: "The appellants fail on this point because the appropriate basis for the valuation of a residential lot is not the application of a rate per square -- 9 of 14 -- 10 metre but an assessment of the unimproved value of each lot as land used for single unit residential purposes. As the Land Appeal Court said in its decision on the appellants' previous appeal (H and E Grahn v. The Valuer- General, AV89-246 and 247, 13 December 1990): 'for the purpose of valuing residential sites, the preferable method of comparison is on a site to site basis and not on the basis of a unit area valued comparison. Site for site comparison should take into comparison such matters as the size of the lots, the situation of and access to the lots, the shape and topography of the lots etc. and comparisons on a unit area basis do not necessarily reflect valuation considerations for the above features.'" [35] Now I accept that consistent relativity is important when valuing lands for revenue purposes under the Valuation of Land Act 1944. That supports Mr Haks' broad application of a 20% rise in unimproved values at the relevant date. Indeed the significance of maintaining correct relativities between parcels was emphasised in R and MM Barnwell v Valuer-General (1990-91) 13 QLCR 13, where the Land Appeal Court said at 16: "We are conscious that it is desirable that valuations made for the purposes of the Valuation of Land Act of comparable lands should bear proper relativity, one to the other, if 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." [36] However relativities can change between one valuation and another, as the Land Appeal Court noted in Barnwell v Valuer-General (supra) at 17: "It has been well recognised over the years that previously established relativity in unimproved values can and does change from valuation to valuation. If there was no justification for change in relativity, the valuer's task would be very simple in that all that would be required to establish value would be accomplished by the use of an adjusting formula. This, of course, is undesirable." Whether the relativity of the subject land had varied from that previously adopted with surrounding parcels, should therefore be seen in light of actions in respect of the access to the subject land. [37] If I look to the adjoining parcels at Lot 1 ($96,000), I find that has direct access to Kirkwood Road, while Lot 3 ($86,000) has easement access across Lot 1 to the south to Kirkwood Road. Both of those parcels have better access than the subject land, which appears to be reflected in their higher values. -- 10 of 14 -- 11 Impact of access problems – [38] While Mrs Dewberry may be disillusioned with the actions of the Council to decide to virtually close physical access to Daly Road, those actions need to be seen in perspective. Whether the resulting further erosion of the old gravel formation in Daly Road across Tondoon Creek, was in fact a consequent of any less than acceptable design or construction standards, has not been demonstrated. However, for the reasons quoted by the Council in its letter to the appellant of 20 December 2000, the Council has a public responsibility to ensure public safety. [39] Now while there is no suggestion in this matter that the Council has acted in other than a professional manner in closing Daly Road to the traffic, the matter of public liability and duty of care may be understood by a recent decision of the New South Wales Court of Appeal. In the matter of Timbs v Shoalhaven City Council [2004] NSWCA 81, 1 April 2004, the New South Wales Court of Appeal awarded damages in a case involving a large spotted gum tree under a TPO of some 30 metres in height, and located only 10 metres from the appellants' dwelling. On two previous occasions in 1997 and January 1998 Mr Timbs has sought approval of the Council to remove the four similar trees which he felt were unsafe near his house. On both occasions his request were refused. In July 1998 one of those trees was blown down in a storm, and demolished the dwelling, killing Mr Timbs. [40] The Court of Appeal found that the Council was not bound to offer an opinion whether the tree in question was "dangerous", and could therefore be removed. However it found that one of its officers had expressed that opinion, and on that advice, approval to remove the tree was refused. As that officer thus took it upon himself to express an opinion that the tree was safe, the duty of care was higher than that expected of a lay person, and thus required a reasonably informed diagnoses by that officer, or for him to refer the tree to a specialist. In the Timbs matter the Court of Appeal found that the inference was open that a reasonably informed diagnoses would have revealed the decayed structure of the roots and the tree would have been pronounced dangerous. Damages were then awarded against the Council for lack of duty of care. [41] If I turn then to the physical access considered by Mr Haks in his valuation of the subject land, I note that was adopted as the main access to the site following discussions with Council officers in 2002, and noted in paragraph [16]. I note also that Mr Haks had been advised by the developer, presumably for the 2001 valuation, that Daly Road could be upgraded at a cost of about $15,000. On the evidence I accept that Mr Hakes has valued the subject land for both valuations on the basis of its main access as being from -- 11 of 14 -- 12 Kirkwood Road. However in the 2001 valuation, I believe that the secondary access via Daly Road was seen as some further potential of the subject land. Mr Haks now agrees that the Daly Road access potential has disappeared, and in fact had deteriorated during the 2002 valuation. On that basis I accept that the overall access to the subject land was at a lower level in 2002, than occurred in 2001. I also note that the postal address of the subject land remains as 2 Daly Road. Comparison of sales – [42] There is no serious challenge to Mr Haks' sales evidence, so I must rely upon the following comparisons: Sale Area Formed earth Applied Comparison access value 2 10 ha 1.2 km. $114,000 (86%) Superior 3 7.371 ha 1.1 km. $91,000 (91%) Superior 4 8.782 ha 0.45 km $108,000 (86%) Superior 5 4.559 ha 2 km. $79,000 (95%) Similar 6 9.78 ha 1 km $101,000 (93%) Superior Subject land 7.432 ha 0.65 km $79,000 (69%) - I note that Sale 4 and the subject land have formed earth access from bitumen sealed Benarby-Gladstone Road to the east; while the other sales have formed earth access from bitumen sealed Glenlyon Road to the west. Clearly the two most inferior accesses are Sale 5, because of its larger length, and the subject land because of its more steep nature. Only Sale 5 is seen as similar overall to the subject land, both being valued at $79,000. [43] However the access to Sale 5, in spite of its longer length of two kilometres of formed earth compared to 0.65 kilometres of formed earth of the subject land, is seen as superior access. On that basis the steepness and narrowness of the access from Kirkwood Road to the subject land must be seen as a significantly inferior quality, supporting Mrs Dewberry's argument that the access is something less than acceptable. [44] Now without the benefit of an inspection, I must rely upon the evidence of the two parties, which conflicts in respect of ease of driving access to the land. On balance I will allow some benefit in the appellant's favour, in line with directions espoused in Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Limited & Ors (1946-47) 74 CLR 358, where in the High Court Dixon J said at 373: "I have had the advantage of reading the judgment prepared by Williams J. and agree in it. I should like, however, to add for myself that there is some difference of purpose in valuing property for revenue cases and in compensation cases. In the second the purpose is to ensure that the person -- 12 of 14 -- 13 to be compensated is given a full money equivalent of his loss, while in the first it is to ascertain what money value is plainly contained in the asset so as to afford a proper measure of liability to tax. While this difference cannot change the test of value, it is not without effect upon a court’s attitude in the application of the test. In a case of compensation doubts are resolved in favour of a more liberal estimate, in a revenue case, of a more conservative estimate.” [45] The question then to be asked is how much does the lesser quality of that access impact the current conservative application of $79,000 made by Mr Haks. Now I note that Mr Haks has balanced the smaller and more irregular shape of Sale 5 compared to the larger subject land, against the better access to Sale 5. It would therefore be over-emphasising the differences between the views of the parties in respect of the quality of access to the subject land, to make any major adjustment to its unimproved value. [46] If I accepted the sale price of $115,000 for the subject land, as if it applied to the sale on the basis that better access would occur along Daly Road, which is supported by the current postal address of 2 Daly Road, and then adjusted that figure by the $25,000 to provide the Daly Road access, I could conclude a figure of $90,000 for the subject land with only the Kirkwood road access. If I then analysed that $90,000 for improvements at $89,500, and applied that analysed figure at 86% similar to Sales 2 and 4, I could conclude a figure of $77,000 for the subject land. [47] I note that the lower application by Mr Haks tends to align with properties more removed from Glenlyon Road, while the higher applications relate to those parcels nearer to Glenlyon Road. Perhaps that reflects the more direct nature of the access to those later parcels, which might be then nearer to the market level. However I believe such adjustments are speculative in nature, and provide no fair measure to adjust Mr Haks' determinations. Mr Haks has been very conservative in his application of the subject land, and I see no reason to make any further adjustments to that valuation. Summary: [48] In summarising this matter I note that the appellant's main concern is that adequate allowance should be made to the valuation in the interim situation until a long term solution for access to the subject land can be arranged. Mr Haks would appear to have allowed for those circumstances. In these matters I am reminded that unless evidence is provided to demonstrate that the Chief Executive has made an error, or followed a wrong principle, then s.33 of the Act directs as follows: "33. Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the chief executive shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered." -- 13 of 14 -- 14 I am also reminded that the onus of proof of such occurrences rests upon the appellant under s.45(4) of the Act. That has not occurred. Conclusion: [49] Having considered the whole of the evidence, I am not persuaded that the appellant has proved her case. The appeal is dismissed, and the unimproved value of Lot 2 on SP 100337 as determined by the Chief Executive in the sum of Seventy-Nine Thousand Dollars ($79,000) is affirmed. NG DIVETT MEMBER OF THE LAND COURT -- 14 of 14 --