Allan v Department of Natural Resources, Mines and Energy [2004] QLC 66

LAND COURT OF QUEENSLAND CITATION: Allan v Department of Natural Resources, Mines and Energy [2004] QLC 66 PARTIES: Elaine and John S Allan (applicants) v. Chief Executive, Department of Natural Resources, Mines and Energy (respondent) FILE NO: AV2003/0180 DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under Valuation of Land Act 1944 DELIVERED ON: 29 July 2004 DELIVERED AT: Brisbane HEARD AT: Cairns MEMBER Mr RP Scott ORDER: The appeal is dismissed and the valuation of the Chief Executive is affirmed. CATCHWORDS: Statutory valuation – Valuation of Land Act 1944 APPEARANCES: The appellant in person Mr K Fischer, Barrister, counsel for the Chief Executive [1] Pursuant to the provisions of the Valuation of Land Act 1944 the Chief Executive placed a value on land owned by the appellants in the amount of $143,000 as at a relevant date of 1 October 2002. The land owners objected against that valuation and, being unsuccessful in that, subsequently appealed to this Court. [2] John Sutherland Allan, a retired gentleman appeared for and gave evidence on behalf of his wife and himself, the appellants. The Chief Executive called Ian Spencer Quirk- -- 1 of 6 -- 2 Anderson, registered valuer, who provided a valuation report in support of the valuation determined by the Chief Executive. In that report Mr Quirk-Anderson provided the real property description of the subject land as Lot 162 on Plan SR 180, Parish of Whyanbeel, County of Solander having an area of 2.175 hectares. The subject property is situated in the Rocky Point locality about 10 kilometres north of the Mossman Post Office. The north-eastern boundary of the subject land abuts an esplanade on which the Mossman- Daintree Road is situated. The esplanade also includes a shingle beach that passes in a general northerly direction for about 3 kilometres from the Rocky Point headland to the village of Wonga Beach. The eastern boundary of the property is about 150 metres from the high water mark. [3] Physical and dedicated access is off the Mossman-Daintree Road which abuts the north- eastern boundary of the property and provides good access in all weather conditions although a blind driveway can make ingress and egress to the property difficult. The Mossman-Daintree Road is a dual lane formed bitumen carriageway and is the main arterial road from Mossman to Wonga Beach, Daintree Village and Cow Bay. [4] Aboveground power, reticulated water and telephone are available to the subject property and a garbage collection and mail service are provided. [5] The subject property is almost regular in shape and rises above the road level in a south- west direction. The land comprises easing sloping ridge towards a cleared home site, then continues to rise steeply to the rear and is broken by a gully. Apart from the house site the property is uncleared tropical scrub. [6] The land is improved with a dwelling house of approximately 2,000 square metres which is well elevated and has extensive ocean and coastal views to the north-east over the Coral Sea towards Snapper Island. [7] The land is zoned Residential A under the Town Plan for the Shire of Douglas gazetted on 20 December 1996, is used for residential purposes and was valued by Mr Quirk- Anderson on the basis that its highest and best use was as used. [8] The above discussion extracted from Mr Quirk-Anderson’s report describing the subject land is accepted by Mr Allan as accurate. [9] The grounds of appeal included in the Notice of Appeal lodged with the Court Registry are “1. Land not inspected. 2. Land Court Decision in Townsville 15/10/1997 was $130,000 3. Beach erosion in front of property. 4. Degraded Boat Ramp. 5. Land Dept letter 17/4/2003.” -- 2 of 6 -- 3 Ground 1 [10] It may have been correct to say that the land had not been inspected for the purpose of the current valuation at the time that the appellants prepared the Notice of Appeal; however, there was evidence before me that Mr Quirk-Anderson had inspected the subject land prior to the preparation of his valuation report tendered in evidence. Ground 2 [11] I have reviewed the decision of the Land Appeal Court of 10 August 1998 and notice that the relevant date for valuation of the subject property on that occasion was 1 January 1996, that is almost seven years prior to the relevant date of the valuation appealed against in the instant case. Mr Quirk-Anderson has in his valuation report provided evidence of eight sale transactions which he says support the value placed on the land by the Chief Executive as at 1 October 2002. It is upon that evidence that I should focus my attention, not on the decision of the Land Appeal Court with respect to the earlier valuation. Clearly I am not bound by the decision of the Land Appeal Court which was concerned with a valuation as at a much earlier than the date of the valuation before me. Ground 3 [12] Mr Allan described how beach erosion has progressively taken place over the past four to five years such that, in his opinion, it puts at risk the roadway which lies between the subject property and the beach. In his view it will cost $4,000,000 to $5,000,000 to repair that roadway if the beach erosion is allowed to proceed unabated. [13] I note his concern, however I also accept his evidence that the erosion referred to has no impact on the value of the subject land. Ground 4 [14] The suggested degradation of the boat ramp also has no effect on the value of the subject land, even assuming that the complaint by the appellants is valid. The Chief Executive tendered photographs that indicate the boat ramp to be both functional and not revealing a level of degradation greater than one might expect for such a structure exposed to the elements. Ground 5 [15] This ground referred to the letter from the Chief Executive to the appellants advising that the objection lodged by them had been disallowed. It is relevant to the extent that it reveals that the objection process was availed of prior to the lodgement of appeal, however the disallowance of the objection as such has no relevance to the valuation of the subject land. -- 3 of 6 -- 4 [16] Mr Allan also raised the fact that the Yalanji Peoples have lodged a native title claim over a large area of land to the rear of the subject property and extending a considerable distance to the north and south. Mr Allan expressed concern that should the claim succeed the development and use of the land may take place in a manner not in sympathy with the usage of the subject property. [17] Mr Quirk-Anderson said that in studies the Department had undertaken through its valuation work it had not been able to reveal any effect of native title claims on the value of lands such as that of the appellants. He said also that any effect, if any, on the value of the subject land would have also been experienced in the properties the subject of his Sales No. 1 and 2. In an attempt perhaps to allay Mr Allan’s concerns Mr Quirk- Anderson said that it was his understanding that any development and usage of successfully claimed native title lands would need to be in accordance with the prevailing planning requirements of the Local Authority. [18] On the northern side of the Daintree River there are, according to Mr Allan, approximately 450 Lots which may not be built upon for residential purposes according to an initiative of the Local Authority which is yet to become law. Mr Allan expressed concern that there would be some unspecified effect that would impact on the value of the subject land in the future should the Council initiative be implemented. [19] Any effect of this initiative on the value of the subject land would be felt in the marketplace and would either be taken into account by the Chief Executive or would be adduced by appellants at that time in pursuit of any appeal. The valuation in the present case is to be struck as at 1 October 2002 based upon circumstances prevailing at that time. [20] Mr Allan expressed understandable concern at the challenge the Chief Executive Department would face if it was required to value the 450 Lots for compensation purposes. [21] The access road to the subject land is less steep than that of some neighbours. These neighbours therefore sometimes use the appellants’ access road for purposes of convenience and safety, as I understand it. This is not a matter which appears to me to have any discernible impact on the value of the subject land. In any event it is a matter I assume can be addressed by the owners of the subject land. [22] As I said earlier, Mr Quirk-Anderson included eight sales in his valuation report. Mr Allan commented on two of these sales only to which I will now turn. Sale 1 took place on 5 September 2001 and involved the sale of Lot 2 on RP 747732, having an area of 5,360 square metres. The land is zoned Rural Residential, sold for $185,000 which analysed to an unimproved figure of $180,000. The Chief Executive’s valuation of -- 4 of 6 -- 5 $75,000 was arrived at without reliance being placed on the sale but by simply continuing a relativity set in place many years ago. Mr Quirk-Anderson expressed the view that the sale land is inferior to the subject property – a comment Mr Allan described as fair. [23] Sale 2 in Mr Quirk-Anderson’s report involved the sale of the old Rocky Point school site to the Douglas Shire Council. The analysed unimproved value of that land was calculated at $220,000 by Mr Quirk-Anderson. He suggested that the sale is superior to the subject land, a comment with which Mr Allan agreed saying that the sale land could be subdivided into a number of allotments. [24] For completeness I will make passing reference to the other sales included in Mr Quirk- Anderson’s report. Sale 3 involved a sale of Lot 32 on RP 747728, having an area of 1.19 hectares. The sale took place on 31 January 2001 for a sale price of $210,800 and was analysed to $204,300. The Chief Executive applied a value of $170,000 to that land which Mr Quirk-Anderson said is superior to the subject. [25] Also superior to the subject in his opinion is Sale 4 of Lot 1 on RP 733460 with an area of 1.146 hectares which sold on 6 March 2000 for $750,000. The sale price was analysed to a figure of $743,000 unimproved and the Chief Executive’s application was at a figure of $385,000. The remaining sales are all considered to be inferior to the subject property. Sale 5 of Lot 7 on RP 910274, having an area of 2.063 hectares, took place on 19 September 2001 for a sale price of $80,000. The land was unimproved. The Chief Executive’s application was $72,000. [26] Sale 6 comprising Lot 2 on RP 736716 with an area of 3.426 hectares sold on 27 August 2001 for $100,000. That sale was analysed to $94,500 with an applied value of $87,000. [27] Sale 7 took place on 15 February 2002 and involved the sale of Lot 8 on RP 865078 having an area of 4,000 square metres and a sale price of $50,000. The analysed value was $45,000 and that was applied at $37,500 by the Chief Executive. Sale 8 comprised Lot 9 on RP 850469, and area of 1.108 hectares, which sold on 10 October 2002 for $130,000. That was analysed to an unimproved figure of $120,000 and applied at $95,000. [28] I have perused the details of the sales evidence referred to by Mr Quirk-Anderson in his valuation report, together with the comparisons provided by him between the sales properties and the subject land and find that the value of $143,000 settled upon by him to be supported. I conclude that the appellants have not demonstrated that the Chief Executive has proceeded on the basis of any error of law or any substantial error of fact, nor that Mr Quirk-Anderson has employed any valuation methodology which is defective -- 5 of 6 -- 6 in adoption or application. Accordingly, the appeal is dismissed and the valuation of the Chief Executive is affirmed. RP SCOTT MEMBER OF THE LAND COURT -- 6 of 6 --