Carey v Chief Executive, Department of Lands [1996] QLC 60

LAND COURT BRISBANE 17 MAY 1996 In the matter of an appeal against a valuation. Valuation Roll No. 611 Local Government: BCC-Enoggera (AV95-665) Myrtle I Carey v. Chief Executive, Department of Lands (Hearing at Brisbane) D E C I S I O N This matter involves an appeal under the Valuation of Land Act 1944 against the value placed upon the subject land by the Chief Executive, as at a relevant date of 1 January 1995.. In the first instance the Chief Executive had valued the subject land at $94,000, however, following objection by the appellant, had reduced this figure to $90,000. The appellant contends for a figure of $75,000. Mrs Carey appeared on her own behalf and gave evidence, whilst Anthony James Whitelegg, a registered valuer in the employment of the Department of Natural Resources (which includes the previous Department of Lands) provided evidence on behalf of the Chief Executive. The subject land has an area of 794 m2 and is located at 84 Willmington Street, Newmarket. Mr Whitelegg said that the land is located approximately 4.5 radial km north-west of the GPO and about 900 metres west of the Newmarket Railway Station. He wrote in his statement tendered to the Court, “The land is rectangular in shape with an approximate frontage to Willmington Street of 15 metres. The site has a steep fall from an elevation at the northern boundary of 39 metre AHD to 10 metres AHD at the southern boundary. The site possesses a very good outlook towards the south including parts of Mt Coot-tha and views of the city skyline.” Mrs Carey attested to the steepness of the block, writing in her appeal document that “not even a mountain goat could negotiate the back slope of my property.”. She described the land as being the steepest in the area, however, evidence supplied by Mr Whitelegg via an orthophoto marked with contour lines indicated that numerous blocks in the area were of similar topography. Mrs Carey expressed concern about trees in neighbouring yards which were 10 to 15 metres high and which pose a hazard in times of storm. She also said that because of the topography of the road described below, the subject land did not enjoy breezes from the north or views in that direction. The most significant concerns of Mrs Carey emanate, however, from the nature of the construction of Willmington Street which her property fronts. Mr Whitelegg described [1996] QLC 60 -- 1 of 3 -- 2 Willmington street as being a split-level bitumen sealed carriageway with the lower southern section of the constructed road, which fronts the subject, being approximately 5 metres less in elevation than the constructed road on the northern upper level. He said that overall access onto the property is considered difficult. This is a matter with which Mrs Carey also agrees. She added to this that the split-level nature of the road means that “wheelie bins” have to be taken from the house and wheeled along that part of Willmington Street which fronts her property to the place where the street divides. More importantly, however, is her concern about the lack of kerbing and channelling along Willmington Street where it fronts the subject land. Mr Whitelegg had made a notation during his inspection that kerbing and channelling was in place, however, this was disputed by Mrs Carey. Mr Glancy who appeared for the Chief Executive invited me to inspect the subject land and the Willmington Street frontage to determine this dispute of fact regarding kerbing and channelling and I accepted this invitation and inspected the property in the company of the parties. It was revealed during inspection that Mrs Carey is correct in saying that there is no kerbing and channelling and Mr Whitelegg conceded that, in the absence of such, the flow of water onto the subject land would create a nuisance at times. Mr Whitelegg estimated that the cost of construction of kerbing and channelling would be about $25 per linear metre at the relevant date, making the all-up cost $375. He said, however, that he doubted that a contractor would carry out such a job for this price and he therefore expressed the view that the absence of kerbing and channelling amounted to a disability which should be valued at $1,000. Mr Glancy in turn submitted that the value to be placed on the subject land ought to be $89,000, a submission which in the circumstances I think was quite correct and proper. Mrs Carey maintained her view that the value of the subject land ought to be struck at $75,000 having regard to the evidence that she had provided. Mr Whitelegg’s evidence was that all of those matters that would have an impact upon value were sufficiently catered for in the valuation and in the reduction on objection from the initial value of $94,000. In a matter such as this, the legislation provides that the appellant has a burden of proof with respect to the grounds of the appeal. Section 45(4) of the Act expresses this:- "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 appreciate that what Mrs Carey has had to say about the subject land is largely accurate, however, having regard to Mr Glancy’s submission, I am of the view that all of these matters have been adequately taken into account in the proffered valuation of $89,000. Accordingly, the appeal is allowed and the valuation of the subject land is determined at Eighty-nine Thousand Dollars ($89,000). RP SCOTT -- 2 of 3 -- 3 MEMBER OF THE LAND COURT -- 3 of 3 --