Davey v Chief Executive, Department of Natural Resources [1999] QLC 83

LAND COURT, BRISBANE 6 August 1999 Re: Appeal against Annual Valuation Valuation of Land Act 1944 Shire of Livingstone. (AV98-283). Beverley M Davey v. Chief Executive, Department of Natural Resources (Hearing at Rockhampton) D E C I S I O N This is an appeal by Mrs Davey against the unimproved value applied to her land by the respondent Chief Executive under the provisions of the Valuation of Land Act 1944 (“the Act”). Introduction: Mrs Davey is the owner of land described as Lot 2 on Registered Plan 612000, Parish of Meadow Flats, containing an area of 10 hectares. As at 1 October 1997 the respondent applied an unimproved value of $55,000 to that land. Mrs Davey objected against that valuation and following advice that her objection had been disallowed, she appealed to the Land Court against that decision upon her objection advising that her estimate of unimproved value was $44,625. Mrs Davey’s grounds of appeal related to:  The extent of the increase in the valuation, while the market for land had not increased but decreased,  The dust nuisance, from the unsealed Coowonga Road, and  Her reason for purchasing the subject land in 1993. At the hearing of the appeal, Mrs Davey was represented by her husband, Mr Errol J Davey, while the Chief Executive was represented by Mr T Coe of the Department of Natural Resources. Valuation evidence was given by Mrs CA Cowan, a registered valuer employed by the Department of Natural Resources. The Subject Land: [1999] QLC 83 -- 1 of 7 -- 2 The following details are taken from the report of Mrs Cowan, but Mr Davey did not disagree with those details. The subject land is situated on Coowonga Road, approximately 4 kms north- west of the town of Keppel Sands. Access to the property is by means of 3.2 kms of formed gravel Coowonga Road, which is located off the bitumen sealed Keppel Sands Road. Electricity and telephone services are available to the property, which is zoned “Rural A” under the Livingstone Shire Town Planning Scheme. Mrs Cowan described the land as follows: “The property comprises a narrowleaf iron bark and spotted gum gravelly ridge level with road rising to the rear. A house site has been cleared and levelled at the rear of the property, this is elevated and has excellent sea views.” At all relevant times the property was vacant and it was common ground that its highest and best use was as a rural residential site. The Case for the Appellant: Mr Davey tendered a written statement accompanied by maps, upon which he elaborated. He explained that he and his wife have an orchard on nearby land. In 1992 the adjoining property was developed for pineapples and the owner of that property commenced spraying with insecticide which drifted onto their land, onto the roof of their house and into their water tanks. They decided it would be healthier to move to another nearby location. The subject land is situated on the upwind side of the offending pineapple farm so they purchased the subject land in January 1993 for $45,000. Mr Davey went on to explain that at the time of purchase they were aware that the Livingstone Shire Council intended to seal Coowonga Road but since that time Council had changed its priorities and had decided not to seal the road. As a result, dust from traffic on the unsealed road is blown by the prevailing easterly winds over the subject land creating what Mr Davey described as “an unpleasant environment” as the property is inundated with dust continuously. He said it is so bad that the dust is blown onto their farm, which is well removed from the road, and collects in the roof guttering which has to be cleaned out periodically. However, he said that they have not yet built on the subject land, because the property adjoining their farm has ceased growing pineapples and the spraying has stopped. At present their intentions were uncertain. They may build there at some time in the future. He now considers that -- 2 of 7 -- 3 his wife paid too much for the land in 1993 and she certainly would not have paid $45,000 if they had known that the road was not going to be sealed. Mr Davey concedes that there are sea views available from the subject land, but he said that it had no other redeeming features. It was a rocky hill bordering a dirt road, with no drinkable groundwater available and of no use for any rural pursuits. It was situated in a particularly dry area with much less rainfall than Tanby or Yeppoon. Mr Davey felt that there was a poor market for land in the subject area. He said that four properties had gone to auction in the Coowonga area in the last six months and had failed to attract a single bid. They are still for sale. In addition, the adjoining 10-hectare property which had been cleared, fenced and developed with a dam and upon which mango trees had been planted, had been for sale for three years and was still for sale. He described the subject land as consisting of “… a hill rising 40 metres above sea level from the entrance …” and stated that a 4-wheel-drive vehicle was necessary to gain access to the top of the hill. I assume that was the area referred to as the best homesite. He contended that the adjoining land was considerably lower and has easier access, as the gradient is less steep than on the subject land. Mr Davey was aware of the sales that had been used by the respondent as the basis for the valuation of the subject land and considered that each of them was inappropriate. The Case for the Respondent: Mrs Cowan was not the valuer responsible for making the valuation which is the subject of this appeal, but she made a detailed inspection of the sales and the subject property and she agreed with the amount of the valuation. In support of the valuation Mrs Cowan relied upon four sales. Sale No 1 is situated on Keppel Sands Road near the outskirts of Keppel Sands. It has an area of 21.08 hectares and sold in October 1997 for $55,000 and that was the figure applied by the respondent to that land at the relevant date. That property has bitumen road access and was described as level to low-lying, with approximately one-third of the area comprising salt pan and tidal mud flats. The property backs onto Pumpkin Creek. Mrs Cowan described the sale as being comparable to the subject land, but located close to Keppel Sands. Although it was larger than the subject land, one-third -- 3 of 7 -- 4 of its area was useless mudflat. She described it as being very overgrown at the date of sale. Mr Davey thought that sale to be a most inappropriate basis for the valuation of the subject land. It was much larger, situated on the outskirts of Keppel Sands, near the Keppel Sands school and on a bitumen road. It bordered Pumpkin Creek, which he described as a local crabbing and fishing spot. He thought that the sale was not comparable with the subject land in any way. However, Mrs Cowan did not agree. She thought that it was “very similar to the subject”. She went on to say: “Both properties are very different however we thought they were very similar in a lot of ways. Sale No 1 is very low-lying, about one-third of it is mud flat and salt pan which would leave a useable area of about 14 hectares, so size wise it’s quite similar to the subject. It has bitumen access to Keppel Sands. It’s got mangroves along the frontage to Pumpkin Creek. … it went to auction and he purchased it after the auction. There are no views from that block at all and while it is close to the town of Keppel Sands there is limited subdivision potential. That whole area is zoned ‘Rural A’ and Council is quite loathe to change the zoning of any of the blocks in that area.” She thought that as the subject land had views and the sale had frontage to Pumpkin Creek, “they’d bring the blocks back together”. Mrs Cowan’s Sale No 2 is situated fronting Coowonga Road, some distance to the south of the subject land. That property has an area of 40.43 hectares and sold in August 1998 for $57,000. It was analysed to show an unimproved value of $56,500 and as at the date of valuation the respondent had applied an unimproved value to that land of $52,500. Mrs Cowan described that property as elevated forest ridge falling to a sandy low-lying swampy flat, with a gravel road frontage. It is traversed by two powerlines. She considered it to be comparable to the subject land. Although larger in area, the majority of the block is sandy and traversed by two powerlines, which she said impedes the location of a dwelling. She went on to say that the sale had limited views, but the balance area was very sandy with 4-wheel-drive access only and of limited use. Mr Davey did not consider that Sale No 2 was comparable to the subject land. It is four times the size, was sold 12 months after the date of valuation, it was low- lying land and he believed that it was going to be farmed for the growing of date palms, whereas the subject land was not suitable for rural purposes. -- 4 of 7 -- 5 Mrs Cowan’s Sale No 3 is situated in Hoffmans Road to the west of the subject land. It has an area of 1 hectare and sold in October 1996 for $32,000. That sale was analysed to show an unimproved value of $29,600 and at the relevant date the respondent had applied an unimproved value to that land of $27,000. Mrs Cowan described it as a small site, approximately half forest flat, with the balance area creek banks. It was level to low-lying. Mrs Cowan considered it to be inferior to the subject land, mainly because it was smaller. Once again, Mr Davey did not consider the sale to be comparable to the subject land. Although it was situated on a gravel road it did not suffer from the dust problem because it was to the east of the road so that the prevailing winds blew the dust the other way. He had spoken to the people who bought the property and had ascertained they have drinkable groundwater in a bore on that land. Mrs Cowan’s Sale No 4 is an allotment of 2023 square metres situated in Keppel Sands Road, approximately midway between Sales 1 and 2. That property sold in April 1996 for $17,000, analysed to show an unimproved value of $16,000 and at the date of valuation the respondent had applied an unimproved value of $15,000 to that property. Mrs Cowan described it as a small low-lying site, with a low wet depression at the front rising to a forest flat. Keppel Sands Road is bitumen sealed. Mrs Cowan described it as inferior to the subject land because it was significantly smaller. Mrs Cowan conceded that the sale did not provide much assistance in valuing the subject land. Mr Davey had ascertained there was a bore on that property, but he did not know about the quantity or quality of water obtained. Access to the Homesite There was an issue between Mr Davey and Mrs Cowan concerning access to the cleared homesite on the top of the hill on the subject land. Mr Davey contended because of the steep gradient, access could be gained only by 4-wheel-drive vehicle. On the other hand, Mrs Cowan contended that if the track was properly maintained then access could be gained by a conventional vehicle, as the adjoining owners are able to access their sites by such means. She did not agree with Mr Davey that the neighbour’s land was at least 20 metres lower than the house site on the subject land. In any case, she thought that would not have affected her valuation because if it was 20 metres higher it would have much better views. The Hof Sale -- 5 of 7 -- 6 Mr Davey had marked on his map the sale of a 75.81 hectare property fronting Keppel Sands Road which sold on 15 July 1998 for $45,000. Mrs Cowan had investigated that sale and had ascertained that it was never on the open market but was a private sale by a Mr Hof who, with hindsight, considers he sold it too cheaply, having regard to the price paid for Sale No 4 immediately to the north. Mrs Cowan went on to say that it had only about 5 to 10 hectares of useable country, with the balance being very low-lying swampy country. Although it fronted a bitumen road the only area where a dwelling could be constructed was in the north-west corner which adjoined a gravel road. Mr Davey finished by saying that he did not think there were any sales which were comparable to the subject land. Conclusion: I accept Mr Davey’s evidence concerning the purchase of the subject land, and that they expected Coowonga Road to be sealed by the Council in the not too distant future. However, when they found it was to remain an unsealed road and because of the dust nuisance from that road, they think they may have paid too much for the land. I also accept what he had to say about the difficulty of marketing properties in the area. When asked why she thought properties were not selling in the area, Mrs Cowan responded by saying that perhaps the purchasers were asking too much. However, that does not explain the absence of bidding for each of the four properties that went to auction. The principal issue between the parties was the comparability of the sales relied upon by the respondent. In my opinion, Sales Nos 3 and 4 can be disregarded as they are simply too small to do anything more than indicate a minimum value for sites in the area. The evidence indicates that Sale No 1 could be said to be contrastable rather than comparable with the subject land. It is better located, with frontage to a bitumen road, with a recreational creek at the rear and is physically quite different. It would be stretching the imagination to attempt to reason that adjacency to Pumpkin Creek was somehow equivalent in terms of comparison to sea views available from a hilltop on an inland dusty site. Sale No 2 is only a little better. It is four times the size of the subject land, and although situated on a gravel road, would not suffer greatly from dust as it is on the upwind or eastern side of that road, and physically appears to be quite different to the subject land. -- 6 of 7 -- 7 However, as has been said in so many cases, a valuer must make the best of what sales are available. Mrs Cowan was in the unenviable position of having to support a valuation which was not her own. It is understandable that she was not as familiar with the area as the original valuer would have been. In the circumstances, where there is disagreement about the physical characteristics of the land, I feel I should prefer the evidence of Mr Davey to that of Mrs Cowan. Under the provisions of the Act, the burden of proof is upon the appellant. In this case I feel that the appellant has partially discharged that burden. Although the evidence indicates that there have been no recent sales in the immediate vicinity of the subject land, the four sales produced by the respondent do indicate that there is at least a market for land in the vicinity. Having regard to those sales, I am not prepared to find that there has been no increase in the value of the subject land since it was purchased over four years prior to the date of valuation. However, I do not think that it has increased to the extent of the respondent’s applied unimproved value. Having regard to all the evidence, I have come to the conclusion that an unimproved value of $50,000 would be appropriate. Order: Accordingly, the appeal is allowed. The valuation of the respondent is set aside and the unimproved value of the subject land as at 1 October 1997 is determined at Fifty thousand dollars ($50,000). JJ Trickett President of the Land Court -- 7 of 7 --