Balapax Pty Ltd v Chief Executive, Department of Natural Resources; Nearhos v. Chief Executive, Department of Natural Resources [1997] QLC 77

LAND COURT BRISBANE 30 MAY 1997 Re: Appeals against Valuations Valuation of Land Act 1944 - Valuation Roll No: 200-13197 and Roll No: 200-13197/10000 Local Government: Toowoomba Balapax Pty Ltd (V96-150) v. Chief Executive, Department of Natural Resources and P A and A V Nearhos (V96-149) v. Chief Executive, Department of Natural Resources DECISION Background: These matters relate to two adjoining properties located on the corner of Purnawilla Court, and Mackenzie Street, Middle Ridge, approximately 6 kms south-east of the Toowoomba Post Office. The key issues relate to relativity between other properties, the value as englobo land, and the comparison of comparable sales. As the two properties are owned by the appellant, and the sales evidence is common for both subjects, it was agreed by both parties that the two cases be heard concurrently. At the request of the parties the two sites were inspected in company with the parties. Parcel A (V96-150) is described as Lots 1 to 17 on RP 886392, and occupies an area of 1.4857 ha fronting Mackenzie Street and Purnawilla Court, both of which are bitumen sealed with concrete kerbing and channelling fronting Parcels A and B. Access to both Parcels A and B is good. Parcel B (V96-149) is a large residential parcel occupied by a dwelling and is described as Lot 18 on RP 886392, having an area of 2661 m2, at the corner of Mackenzie Street and Purnawilla Court. [1997] QLC 77 -- 1 of 12 -- 2 Reticulated town water supply, electricity, telephone, gas mains and sewerage are available to both parcels. The land of both parcels is nearly level to gently sloping red soil eucalyptus forest country. Parcel B and Lots 1 to 6 on Parcel A adjoin part of the Middle Ridge Golf Club. Both parcels are zoned as “Residential A” under the planning scheme for the City of Toowoomba of 10 June, 1989, and effective at the date of valuation of 1 January, 1995. Parcels A and B were part of a conjunction sale purchased by the appellants from a vendor Edwards, with Parcel B as a home for the appellants, and Parcel A to be subdivided into 17 lots. On 1 August, 1995, the Chief Executive, Department of Lands (now Department of Natural Resources) issued valuations for Parcel A to $780,000, and for Parcel B to $110,000. Following objections the Chief Executive on 21 May, 1996 allowed in part the objection for Parcel A and issued an amended unimproved valuation to $400,000. The Chief Executive also on 21 May, 1996 disallowed the objection for Parcel B, and confirmed the valuation for Parcel B at $110,000. The appellants have now appealed to the Court claiming that the more appropriate valuation should be Parcel A ($334,025) and Parcel B ($72,000). Mr A Nearhos appeared and gave evidence for the appellants, and Mr D Grealy appeared for the respondent calling evidence from Mr P J Janke, a departmental registered valuer who was responsible for determining the valuations. Evidence: The appellants grounds of appeal rested upon: (Parcel A)  (i) Valuation is out of relativity with other properties and is not supported by sales evidence at the relevant date  (ii) Insufficient consideration was given to the value of improvements  (iii) There appears to be anomalies in the valuation process (Parcel B)  Valuation is out of relativity with other properties and is not supported by sales evidence at the relevant date Mr Nearhos gave evidence that he believed there was little difference between lots in the Spring Garden Estate and the subject, and he believed that the unimproved values of Lots 1 to 17 should be reduced accordingly to maintain similar values to similar lots in the Spring Garden Estate. The Spring Garden Estate is a similar estate to Parcel A situated about 0.5 kms to the north-west of the subject. Later Mr Nearhos conceded that in his personal view he believes the subject is slightly better land, particularly because of its close proximity to the golf course. In this matter he had drawn comparison between the two estates in his written objections to the Chief Executive, which were also submitted to the Court. In his written evidence he noted that: -- 2 of 12 -- 3 Estate Lot Area UCV Area per m2 Purnawilla Court 12 801 m2 $74,000 $92 Spring Garden 25 802 m2 $63,000 $78 However the specific features of each lot, other than their area, were not considered. This comparison provides little support for the argument that the lots on the two estates should have similar valuations, as area is only one factor to be considered in valuing the land. A major concern of the appellant would appear to be the current policy of the Toowoomba City Council (hereafter called Council) in seeking contributions from developers towards public open space at the time of subdivision. The Council requires either a 10% contribution for park purposes of the land being subdivided, or on small estates where such dedication of parkland would be ineffectual for public park purposes, the Council requires 10% in cash contribution of the unimproved value of the new lots being created by the new subdivision. In exercising the latter approach with the appellants, the Council sought the advise of the Chief Executive in respect of the likely unimproved value of the new lots. This procedure is called a “notional valuation”, and the figures supplied by the Chief Executive to the Council, were used to determine the 10% cash contribution from the developer. Mr Nearhos in his written statement noted that the Council, as a condition of approval of the subdivision, had required the appellant to “lodge a bond with the Council for $140,625 for parkland contribution, being 10% of their expected valuation with a 15% margin of error.” This upfront cost had clearly caused concern in respect of the method of determining the estimated valuations of the parcels. Mr Nearhos noted that it was a major contributing factor in his appealing of the current valuations. Mr Nearhos claims that his estimated valuation of the 18 lots in both Parcels A and B should be $1,207,000 and not the “notional valuation” figure of $1,362,000 supplied to the Council. Mr Grealy confirmed that the appeal was in fact in respect of the unimproved valuations prepared by the Chief Executive, and have no direct relevance to the “notional values” supplied to the Council. However Mr Janke estimated that when supplying a “notional value” to Council he seeks to retain relativity, and the supplied values are usually close to the final unimproved values adopted once the subdivision is completed. Mr Nearhos also provided evidence that at arriving at his value of Parcel A for the appeal ($334,025), he had taken the Chief Executive’s valuation of the 18 lots, subtracted the -- 3 of 12 -- 4 value allocated to Lot 18 ($110,000), after applying a percentage reduction (16.5%) in line with his estimate total valuation figure. ie $400,000 multiplied by 0.835 equals $334,000. In respect of the evidence of the respondent, Mr Janke applied the following methods of valuing Parcels A and B: (1) Parcel A (V96-150) Method (1): Based upon comparison with comparable englobo lands Parcel A, with an area of 1.4857 ha, was valued at $250,000 per ha, providing an englobo value of $371,425, and an adopted value at $370,000. Evidence of sales involved:  Sale 1 - (Pillar and Ramsay Streets - Lot 2 on RP 140418). This is a 2.023 ha englobo site situated approximately 1 km west of the subject. The sale is zoned “Rural”, and consists of gently sloping land, is regularly shaped and opposite new subdivisional land. The sale is considered overall inferior to the subject due to its inferior situation. The sale sold in March 1994 for $483,000, and after allowing improvements of $26,000 provided an analysed unimproved value of $457,000, and an applied value of $405,000 or $200,000 per ha.  Sale 2 - (Hoepper Street - Lot 131 on RP 16891). This is a 1.949 ha englobo site situated about 3.7 kms north-west of the subject. The sale is zoned “Residential A”, and consists of elevated moderately sloping land on a corner and situated in close proximity to existing residential development. The Sale is considered overall inferior to the subject on a rate per ha basis due to its far inferior situation. The sale sold in August 1994 for $380,000, and after allowing for improvements of $6,000 provided an analysed unimproved value of $374,000, and an applied value of $340,000, or $175,000 per ha. Mr Nearhos queried the relevance of Sale 2 which he claimed was too far away. Method (2): Based upon s.25(1) of the Act, as the appellant is considered the original subdivider, the valuation is determined by multiplying the average unimproved value of the individual parcels (17) by five (5) times as follows: Table 1 Lot Area Unimproved Value 1 811 m2 $81,000 2 830 m2 $82,000 3 850 m2 $83,000 4 870 m2 $84,000 5 829 m2 $80,000 6 959 m2 $91,000 7 868 m2 $78,000 8 913 m2 $79,000 -- 4 of 12 -- 5 9 1052 m2 $88,000 10 854 m2 $75,000 11 843 m2 $77,000 12 801 m2 $74,000 13 820 m2 $76,000 14 902 m2 $79,000 15 943 m2 $80,000 16 856 m2 $73,000 17 856 m2 $73,000 Total 1.4857 ha $1,353,000 Average value per lot = $79,588 5 x $79,588 = $397,941 Adopt $400,000. The valuation calculated on the basis of Method 2 reflects a higher value, which under s.25(2) of the Act must be adopted. The valuations of the individual 17 lots were based upon a comparison of 7 sales in the “Spring Garden Estate”. All sales consist of regularly shaped, gently sloping allotments, with reticulated town water supply, underground electricity, mains gas, sewerage and telephone available. All are zoned as “Residential A”. All lots are shown on Registered Plan 861184. Sales 1 and 2 are corner lots, and the rest are inside lots. Other details of the sales include: Table 2 Sale Street Lot Area Date of Sale Sale Price Improve ments Analysed value Applied value 1 Llanwynne Court 24 801 m2 4/5/94 $68,500 $1,000 $67,500 $61,000 2 Llanwynne Court 23 851 m2 16/4/94 $74,000 $1,250 $72,750 $67,000 3 Spring Garden Court 27 857 m2 6/5/94 $72,500 $1,250 $71,250 $65,000 4 Spring Garden Court 28 859 m2 13/5/94 $71,500 $1,250 $70,250 $65,000 5 Spring Garden Court 33 953 m2 18/4/94 $85,500 $1,250 $84,250 $77,000 6 Spring Garden Court 38 1000 m2 6/5/94 $85,000 $1,250 $83,750 $78,000 7 Spring Garden Court 37 1019 m2 5/8/94 $87,000 $1,250 $85,750 $79,000 The above sales range from $61,000 (801 m2) to $79,000 (1019 m2), and are similar to the subject but considered inferior because of the closer proximity of the subject to the Middle Park Golf Course, particularly Lots 1 to 6 of the subject which overlook the Golf Course. -- 5 of 12 -- 6 (2) Parcel B (V96-149): The highest and best use for Parcel B is to be subdivided into 3 residential lots. However Parcel B is presently used as a site for a single dwelling, and under s.17 of the Act it is valued for that purpose. Comparison was made with five sales in the Spring Garden Estate and a sixth in Donaghy Court about 1 km south-west of the subject. These sales were used to determine the valuation of $110,000 for an area of 2661 m2. The sales analysed were: Table 3 Sale Street Lot Area Date of Sale Sale Price Improve ments Analysed value Applied value 1 Spring Garden Court 39 1201 m2 3/5/94 $97,000 $1,500 $95,500 $87,000 2 Spring Garden Court 38 1000 m2 6/5/94 $85,000 $1,250 $83,750 $78,000 3 Spring Garden Court 40 1433 m2 2/9/94 $105,000 $1,500 $103,500 $95,000 4 Spring Garden Court 29 1055 m2 12/1/95 $85,000 $1,250 $83,750 $78,000 5 Spring Garden Court 31 1491 m2 8/3/95 $97,500 $1,500 $96,000 $86,000 6 Donaghy Court (on RP 849263) 13 4137 m2 25/4/94 $152,000 $2,500 $149,500 $136,000 Sales 1 to 5 are all lots on RP 861184, all zoned “Residential A”, and all are gently sloping land with underground electricity, reticulated town water supply, mains gas, telephone and sewerage available. Sales 1 to 5 are all considered inferior to the subject due to their inferior situation and smaller areas. Sale 6 is zoned “Rural Residential”, has a slightly inferior situation and services, but because of its larger area and views is considered superior to the subject. Mr Nearhos argued that there had been little change in the market between 1 January, 1995 and October 1995, but queried the relevance of the sales which had occurred after the date of valuation on 1 January, 1995. Mr Nearhos also advised that sales since 1995 have continued to be slow and Lots 1 and 9 in Parcel A remain unsold, while Lot 12 currently has a contract of sale. In respect of the value of Parcel B, Mr Nearhos noted that he had purchased Parcel B on 10 December, 1994, three weeks prior to the date of valuation, at a cost of $121,500. This involved not only the land, but also a brick residence and a tennis court and landscaping. He contends that based upon this sale price he believes the unimproved value of Parcel B should be $72,000. Mr Nearhos also conceded that the sale of Parcel B was contingent upon his purchase of Parcel A for subdivisional purposes, and while Parcel B was more impacted by -- 6 of 12 -- 7 traffic along Mackenzie Street than Lots 1 to 6 in Purnawilla Court, in his view the valuation at $110,000 was not unreasonable for Parcel B. In respect of the market for lots adjoining or near the golf course, Mr Grealy submitted Exhibit 4 which demonstrated the schedule of 1995 sales in Purnawilla Estate as follows: Table 4 Sale Date Lot Area Price Analysed Proposed 1 21/6/95 2 830 m2 $91,500 $88,500 $82,000 2 19/6/95 3 850 m2 $92,500 $89,250 $83,000 3 6/6/95 4 870 m2 $94,500 $90,250 $84,000 4 24/10/95 6 959 m2 $100,000 $95,750 $91,000 5 16/6/95 10 and 11 1679 m2 $160,000 $157,800 $143,000 (2 lots) 6 18/8/95 13 820 m2 $81,500 $80,400 $76,000 7 7/6/95 17 856 m2 $82,900 $81,800 $73,000 By comparison a similar schedule of sales for Spring Garden Estate shows: Table 5 Sale Date Lot Area Price Analysed Proposed 1 10/1/95 16 922 m2 $75,000 $73,750 $69,000 2 30/5/95 32 978 m2 $82,000 $80,500 $75,000 3 27/1/95 14 1000 m2 $84,000 $82,500 $78,000 4 12/1/95 29 1055 m2 $85,000 $83,750 $78,000 5 8/3/95 31 1491 m2 $97,500 $96,000 $86,000 The sales indicate the Purnawilla Estate was achieving higher sales which have maintained a steady market from 1 January, 1995 until 20 October, 1995. In respect of the allowance of improvements upon Parcel A, Mr Nearhos noted certain filling had occurred on Lots 4 to 9, some of which has now been allowed for by the Chief Executive following the objections. Cost of filling of $1,000 per lot for Lots 1 to 5 and 7 to 9 were allowed for by the Chief Executive in his determination of Parcel A by Method 2 at $397,441. However Mr Nearhos argues that inadequate allowance was made for the extra filling and compaction of a dam site on new Lot 6. While the Chief Executive has allowed $2,000 for the filling of Lot 6, in fact the actual costs were conservatively estimated at $4,000. Mr Janke argues he estimated the extra filling of the dam on Lot 6 as part of the overall earthwork costs associated with the subdivision and therefore part of providing a separate title to each lot. He therefore only provided for $2,000 for filling on Lot 2 rather -- 7 of 12 -- 8 than the claimed $4,000. However this would seem to be inconsistent if other filling was allowed for as improvements. On this basis the additional cost of filling on Lot 6 would seem appropriate. However it is also noted that while the appellant had claimed filling on Lots 4 to 9, Mr Janke had allowed filling also on Lots 1 to 3 at a total cost of $3,000. Mr Nearhos also claimed that improvements of a picket fence along the boundary of Lots 1 to 6 adjoining the golf course was a legitimate cost of improvement at $2,000 per lot as it was a requirement of Council for the subdivision. Decision: In considering the first ground of appeal and the matter of comparison of comparable sales in the vicinity, I note that both parties agree that sales of vacant land is the preferred method to be adopted. In this regard I note the decision in PH Clough v. The Valuer-General (1981-82) 8 QLCR 8 at p.76: “It has been judiciously laid down many times and in many jurisdictions that in ascertaining unimproved value, sales of unimproved land of comparable quality, situation, etc, to the subject parcel, if they are available, are to be preferred as the best guide for arriving at unimproved value. The reason is obvious. In applying such sales there is no room for error in analysing the value of improvements.” In the matter of relativity with other parcels I note the decision in R and MM Barnwell v. The Valuer-General (1989) 13 QLCR at p.16: “It is desirable that valuations made for the purposes of the Valuation of Land Act 1944 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.” Clearly any comparison of relativity needs to be soundly based upon values of comparable land. In this matter both parties have sought comparison between the subject and a new subdivision in Spring Garden. Both subdivisional estates would appear to attract a similar type of client, and both have probably benefited from purchasers who have compared the two estates before acquiring a property. Any comparison between the estates must seek to compare like properties in either, and should not be based only on the area of the lots. On the evidence supplied I would lean towards the subject as having a slightly better market value, mainly because of its closer proximity to the golf course. On this basis I believe the existing relativities between Parcel A and Spring Garden Estate is appropriate. In respect of the relevant dates of the sales analysed, I note that under s.18(1) the Chief Executive shall fix the date of valuation, and under s.18(2) all lands in the area shall be valued at the date so fixed. This sets the date at which sales occurring from the last date of valuation are to be analysed. However s.52 of the Act establishes the date from which an -- 8 of 12 -- 9 appellant may appeal a valuation, as being within 60 days of the issue of the valuation. This principle has been adopted by the Court and noted in KP and RD Weisenberger v. The Valuer-General (1978) 5 QLCR 125, and again in RG Murray v. The Valuer-General (1983) 9 QLCR 35 where the Court found at p.36: “As is stated in the decision handed down by the learned President, the Land Court, and on appeal the Land Appeal Court, can only consider the primary production activities carried on on the land between the date of the valuation (31 March, 1980) and the date of the issue of the valuation (12 February, 1981).” In the current cases the objections to Parcels A and B were determined, following the issuing of notices on 1 August, 1995, which is the effective limit beyond which sales evidence has no relevance to this decision. In the matter of the policy of the Council to require a monetary contribution for parkland in lieu of an appropriate area of land for that purpose, I note that this was a contributing factor in the lodging of an appeal to the valuations. I note also that in providing “notional valuations” to the Council, Mr Janke believes that the final unimproved values would not vary greatly from the “notional values” supplied. I also note that the appeals are in fact against the final valuations supplied by the Chief Executive, and have no relevance to the “notional values” previously supplied. I turn now to the valuation of Parcel A which is a valuation of subdivided land. In this respect I look to the Act for direction and note: “Valuation of subdivided land - s.25 (1) Notwithstanding any other provision of this Act except subsection (3), where an owner subdivides land into 6 or more parts, the parts that continue to be owned by the owner (being not less than 6) shall be deemed to form a single parcel and shall be valued as such pursuant to this Act (notwithstanding that the same may not adjoin) and in valuing that parcel any enhancement in the value by reason of works carried out by that owner on the land so subdivided shall be disregarded. (2) However, the unimproved value of that parcel shall be not less than 5 times the average unimproved value of the parts continuing to be so owned and for the purpose of determining the unimproved value of each such part it shall be taken to be a part to which this section does not apply. (3) Nothing in subsection (1) shall affect the operation of section 17.” Firstly I note that Mr Janke in adopting his Method 1 as a comparison of englobo land has sought comparison with two sales of englobo land, both of which are seen as inferior to the subject. Sale 1 provided an estimate of $200,000 per ha, and Sale 2 provided an estimate -- 9 of 12 -- 10 of $175,000 per ha. Mr Nearhos agreed that Sale 1 was inferior to the subject, and queried the relevance of Sale 2 as it was so far away from the subject. However he also agreed that he would not buy Sale 2 and agreed it was considerably inferior to the subject. While the englobo valuation of $250,000 per ha was not supported by englobo sales of equal or superior quality to the subject, the rate was not effectively challenged by the appellant. I would therefore be prepared to accept the valuation of the subject by Method 1 at $370,000 as appropriate. I turn now to the calculated valuations by Method 2 under s.25(2). I note the comparison of the seven sales in Spring Garden at Table 2. I note also that there is agreement between the parties that Spring Garden is slightly inferior to the subject. Under s.25(2) it is noted that the unimproved value of the subject is to be “not less than five times the average unimproved value of the parts continuing to be so owned”. The purpose of s.25 is to provide a concessional valuation to an original owner who subdivides, until such time as the remaining unsold lots total “not less than six lots”. In seeking to determine the average unimproved value of the remaining lots in Parcel A, I turn firstly to Table 1. The unimproved values of Lots 1 to 5 and Lots 7 to 9 have all been reduced by $1,000 (filling), and Lot 6 by $2,000 (filling). As discussed previously further additional adjustments should be provided as follows: Lots 1 to 3 = + $3,000 (added as no filling needed) Lot 6 = - $2,000 (filling of dam) Lots 1 to 6 = - $12,000 (fencing) Total $11,000 Previous total = $1,353,000 Minus $11,000 New Total $1,342,000 (for 17 lots) Average per lot = $78,941 5 x $78,941 = $394,706 Say $395,000 As the determination at $395,000 under s.25(2) is the greater, that is the appropriate value to be adopted for Parcel A. In the valuation of Parcel B, I note first that the parcel is valued as a single residence under s.17 of the Act. I turn then to the comparison of sales in Table 3. I note that Sales 1 to 5 are considered inferior because of the greater area of Parcel B, and Sale 6 is a much larger parcel and is considered superior. On the balance of that evidence I believe the value of Parcel B at $110,000 would seem appropriate. In respect of the dates of those sales, all are prior to the date of issue of the valuations from the Chief Executive on 1 August, 1995. -- 10 of 12 -- 11 In comparing sales of large parcels in Parcel A (Table 4), I note that Sales 4 and 6 occurred after the date of issue, and should not be analysed. However I also note that in Mr Nearhos’s evidence, sales from January to October 1995 had shown little change in the market. All sales of larger parcels in Table 5 appear to be relevant. In respect of the sale of Parcel B on 10 December, 1994 I believe the “conjunction” nature of the sale, in that it was linked to the purchase of Parcel A, suggests that the sale of Parcel B on its own was not totally “at arms length”. In this matter I turn to Jowett v. The Federal Commissioner of Land Tax 38 CLR 325, which determined at p. 329: “A sale of the subject land or of comparable land, affords the best means of arriving at the fee simple value of any land.” However this needs to be seen also in the perspective of the decision of The Chief Executive, Department of Lands v. J and J Lorenzen (AV 93-22), 1 June, 1994, unreported, where the Land Appeal Court found at p.4: “Whilst we agree that a sale of the subject land should always be considered in assessing its value we hasten to stress that such a sale is only prima facie evidence of its value. The weight which will be given to the sale is dependent upon a number of factors, the most important of which is whether the sale is in reasonable conformity with the market as demonstrated by other sales of comparable land.” In determining the weight to be applied to the sale of Parcel B, I also seek guidance in Determination of rents and unimproved values for conversion purposes - perpetual lease selections and grazing selections - Goondiwindi District (1974) 1 QLCR 45, at p.48: “Whilst a sale of a subject property around the relevant date in normal circumstances is cogent evidence of its value, it is always necessary to check the analysed value against the standard reflected by other sales of comparable properties to ensure that it conforms to the ‘norm’ of the market. If the sale does not so conform caution must be used in its application and it may be even proper to reject it if it is shown to be a sale out of line with the market ‘norm’. This check becomes vital, in my opinion, in times of varying market be it rising or falling or in times of an erratic market. One cannot assume, ipso facto, that the analysed sale figure equates fair market value for the subject purposes.” While there is no evidence of an erratic market in the current case, the special features of the sale of the subject, and its linking to the sale of Parcel A, provides some reason for caution in adopting the sale as reflecting the normal market for a parcel of that area. On the evidence supplied, and in view of the appellant’s concurrence that “the valuation at $110,000 was not unreasonable”, I find the valuation of that amount for Parcel B is appropriate. Summary: -- 11 of 12 -- 12 In determining amendments or alterations to the valuation, the onus of proof rests upon the appellants under s.33 of the Valuation of Land Act 1944: “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.” In summary I believe the appellants have partly proved their case in respect to Parcel A, but have not done so in respect to Parcel B. Conclusion: After having considered the whole of the evidence, in summary my decisions are as follows: Appeal V96-150 - The appeal is partly allowed, the Chief Executive’s valuation is set aside, and the unimproved value of Lots 1 to 17 on RP 886392 is determined at Three Hundred and Ninety-five Thousand Dollars ($395,000). Appeal V96-149 - The appeal is dismissed and the unimproved value of Lot 18 on RP 886392, as determined by the Chief Executive, Department of Natural Resources, in the sum of One Hundred and Ten Thousand Dollars ($110,000) is affirmed. DR N G DIVETT MEMBER OF THE LAND COURT -- 12 of 12 --