Aspinall v Chief Executive, Department of Natural Resources [2000] QLC 38

LAND COURT, BRISBANE 28 June 2000 Re: Appeal against Annual Valuation Valuation of Land Act 1944 Valuation Roll No: 804-5005 Local Government: Bowen Shire. (AV99-1162). Howard William Aspinall v. Chief Executive, Department of Natural Resources (Hearing at Bowen) D E C I S I O N Background: This matter relates to a parcel at Aspinall Road, Collinsville, and described as Lot 1 on Plan MPH 20110, Parish of Springlands. The subject land has an area of 4.047 hectares, and is located approximately 2km south of the township of Collinsville. Access is via Aspinall Road which is bitumen sealed for 50 metres, and then 350 metres of formed earth leading to Pelican Creek. Reticulated town water, telephone, electricity and garbage disposal are available. The key issues are changes in the market, the nature of the land, and comparison of sales. The subject land is zoned "Rural Grazing" under the Bowen Shire Town Plan of 28 May 1998, and current at the date of valuation of 1 October 1998. On 29 March 1999, the Chief Executive issued a valuation of the subject land at $10,000. Following an objection the Chief Executive confirmed that figure on 28 July 1999. The appellant has now appealed, claiming the unimproved value should more properly be $3,200. Mrs Beryl Ruth Aspinall appeared and gave evidence for the appellant. Mr Damien Grealy, Counsel of Crown Law, appeared for the respondent, calling evidence from Andrew Trevor Brown, the Departmental Registered Valuer now accepting responsibility for the valuation. [2000] QLC 38 -- 1 of 5 -- 2 The Evidence: Mrs Aspinall has resided for over 40 years on the subject land. She argues that, to her knowledge, there have been no changes in the general market in Collinsville in recent years that would justify any increase in the unimproved value of the subject land. Mrs Aspinall argues that the previous valuation of $3,200, established in January 1996, should therefore not be disturbed. The subject land is regular in shape, and consists of an elevated sand ridge in the south-west corner, falling away to sandy creek flats. Mrs Aspinall also notes that the subject land is severely impacted by overland surface water flows during periods of heavy rainfall. These flooded areas impact a large part of the subject land, and on occasions water has entered the downstairs areas of the dwelling into the toilet, bathroom and laundry. The dwelling is two storeys with living areas downstairs, and bedrooms upstairs. However, Mrs Aspinall concedes that flooding is not a problem from Pelican Creek. The periodic overland water flows tend to occur in some years once or twice a year. The subject land is used entirely as a single rural residential site, and Mrs Aspinall sees no advantage to the land in fronting Pelican Creek, as the residence relies entirely upon town water. Mrs Aspinall notes in fact that Pelican Creek is really a detriment to the subject land, as the creek is badly infested with noxious weeds such as rubber vine and rag weed, which require regular major remedial action. Mrs Aspinall believes that in the current depressed state of the property market in Collinsville, a vacant land parcel similar to the subject land would be difficult to sell. She contributes this decline in value to the fall in prices in the area, which started at about the time of the valuation in October 1998. (1) The Comparison of Sales - To support his valuation Mr Brown relies upon comparisons with the following sales of lands, all zoned as "Rural Grazing" and used for rural residential purposes:  Sale 1 - (Mt Coolon Road, Collinsville - Lot 11 on RP 900246) This is the key sale, and has an area of 6.423 hectares, and is located about 2.5km further from Collinsville on the Bowen Developmental Road. The sale slopes from the road, and has a gully through it, and with a small portion severed by a creek. The sale gets some surface water across it, but is not as susceptible to flooding as the -- 2 of 5 -- 3 subject land. The sale was seen as slightly superior to the subject land due to its larger size and the more difficult access and flooding on the subject land. The sale sold in March 1997 for $21,000 which, after allowing for improvements, was analysed at $16,000.  Sale 2 - (Pelican Creek Road, Collinsville - NCL 201229) This is a leased area of 3.517 hectares, located close to the subject land, with access via a 2km formed gravel road. It is close to the railway line and the water pipeline, and has good rural views. Because of the leased nature of the tenure, Mr Brown sees the tenure type as likely to impact the mind of the purchaser at the time, and Mr Brown sees the sale as overall inferior because of tenure type, location, access and size. The sale sold in May 1996 for $16,500 which, after allowing for improvements, was analysed at $15,400.  Sale 3 - (Pelican Creek Road, Collinsville - Lots 11 and 12 on Plan MPH13506) This is a 63.09 hectare improved parcel with a similar location to the subject land, and with some irrigation potential. After assessing the added value of the improvements on the basis of replacement cost less a market rate for depreciation, determined from industry statistics in the area, the resulting unimproved value of the sale was seen as considerably superior to the subject land, due to its size and arable potential. The sale sold in May 1996 for $198,000 which, after allowing for improvements, was analysed at $43,665.  Sale 4 - (Pelican Creek Road, Collinsville - Lot 7 on DK278) This is a resale of the Sale 2 property after the land had been freeholded from the Government. The sale resold in October 1999 for $14,000, which was analysed at $13,000. The sale is a late sale, well after the date of valuation of 1 October 1998, but provides further support evidence. In considering those sales, Mrs Aspinall was not familiar with the specific nature of each sale, but she was critical of the lack of any face to face consultation with the respondent, during the inspection of the area. Mrs Aspinall concedes that she had no knowledge of the impact of noxious plants upon any of the sales. Mr Brown advises that Sale 1 has rubber vine and parthenium infestation; and Mr Brown had -- 3 of 5 -- 4 also relied upon Departmental files which had formerly noted the level of weeds and flooding problems on each parcel. For that reason, and following his inspection from the road, Mr Brown had not seen the need to personally visit each owner to discuss the matter. He notes for instance the file record of Noogoora Burn upon Sale 1. Decision: I consider first Mrs Aspinall's concern that the large rise of $6,800 in the unimproved value is not warranted, and is inconsistent with the market in Collinsville. While large percentage rises are often a concern to appellants, the rises are not in themselves evidence that an error has been made by the Chief Executive. That was found in the matter of NR and PG Tow v. Valuer-General (1978) 5 QLCR 378, where the Land Appeal Court said at page 381: "It follows that a large increase over and above the previous valuation is in itself not a relevant issue provided bona fide sales of comparable parcels support the new valuation. " That matter was also considered in C and BD Henricks v. Valuer-General (1983) 9 QLCR 59, where in the Full Court of Queensland, Macrossan J (CJ) said at page 63: "The appellants also relied upon a schedule, exhibit 4 in the Land Appeal Court, which showed percentage increases in the value applied by the Valuer-General to a number of selected parcels of land from the date of the preceding valuation up to the March 1979 valuation date. The percentage increase shown in the selected cases was in each instance considerably less than the increase applied to the subject land as between the two valuation dates. The weakness in such a selective comparison is obvious as there could be any number of reasons why blocks in the same valuation area should increase at different rates over a period of five years." If I consider then the nature of the land, I find that Mr Brown concedes that surface overland flood waters are a problem on the subject land, and he has taken that into consideration in his valuation. The Departmental file had previously recorded that disability. If I then consider the impact of the noxious weeds along Pelican Creek, I find that Mr Brown's sales also suffer from similar intrusions. Mrs Aspinall was unable to identify whether the sales were in fact so impacted. That then leaves the comparison of sales by Mr Brown. The appellant has provided no other sales which might discredit Mr Brown's sales, and I must do the best I can with the evidence. If I consider the sales, I find that Mr Brown sees the -- 4 of 5 -- 5 subject land as slightly inferior to the analysed unimproved value of Sale 1 ($16,000); superior to Sale 2 ($15,400); and considerably inferior to Sale 3 ($43,665). The use of the late Sale 4 is seen only as a supporting sale, acknowledging the declining market conditions from October 1998. The lower analysed resale price of Sale 4 ($13,000) is seen to reflect in part the declining market, but also an allowance for the now freeholding tenure of that property. On the basis of that evidence I could conclude that the current determined unimproved value of the subject land at $10,000 is very conservative. However I note that Mr Brown's comparison has made a generous allowance for the surface flooding problem on the subject land. In the end I turn to the Legislation for guidance, and note that in respect of an appeal, section 45(4) places the onus to prove his case upon the appellant: "45.(4) Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner." I note also that unless the Chief Executive has been found to have applied a wrong principle, or has made a serious error of fact, then section 33 of the Act dictates that the valuation of the Chief Executive is deemed to be correct. That principle was established by the High Court of Australia in Brisbane City Council v. Valuer- General (1977-78) 140 CLR 40, at 56. On the evidence before me, I find that the appellant has not satisfied the onus of proof, and the valuation of the Chief Executive should not be disturbed. Conclusion: Having considered the whole of the evidence I am not persuaded that the appellant has proved his case. The appeal is dismissed, and the unimproved value of Lot 1 on Plan MPH20110, as determined by the Chief Executive in the sum of $10,000 is affirmed. (NG Divett) Member of the Land Court -- 5 of 5 --