Etlin v Chief Executive, Department of Lands [1995] QLC 147

LAND COURT BRISBANE 27 October 1995 Re: Appeal against a valuation - Brisbane City Council - Moggill AV94-379. Robert Etlin v. Chief Executive, Department of Lands D E C I S I O N This is an appeal against the determination of the Chief Executive, Department of Lands, of the unimproved value of Lot 3 on RP 181337, parish of Moggill, in the sum of $180,000 for the purposes of the Annual Valuation of the Area as at 30 June 1993. The appellant is contending for a valuation of $175,000 on grounds which in substance are that sewerage to the property is not connected and could not be connected except with permission first having been obtained for a line to pass through a lot at the rear and, secondly, that the market upon which valuations are based reflects costs of services, etc., provided by developers. Mr Etlin appeared on his own behalf. The respondent was represented by Mr Uday Singh, registered valuer in the employ of the Department. He wrote the valuation which is the subject of the objection and appeal. The subject lot is a rectangular shaped lot containing 3923m2 and is situated at 176 Kenmore Road, Fig Tree Pocket. It has a lot of 2421m2 adjoining and is otherwise surrounded on the sides and to the rear by smaller size residential lots ranging from 609m2 to about 1000m2. The land is elevated with a moderate cross-fall from south-east to north-west with an outlook towards Mt Cootha. Electricity, water and telephone services are connected, sewerage is in the area but, in order to connect the system in Errogie Place to the rear, permission would have to be required from the owner of Lot 27 which adjoins. The appellant has made no attempt to connect to the service as he has been content with a septic system. The record of valuations applied to the lot over the years since 1987 to the present shows that objections to the valuations have been allowed and disallowed. Mr Etlin said that recently the valuation which issued for this year was reduced from $197,500 to $195,000. An objection to [1995] QLC 147 -- 1 of 3 -- 2 the valuation, the subject of this appeal, was disallowed. Mr Etlin did not directly challenge the sales evidence tendered by Mr Singh, other than to say, as a generalisation, that the market reflected works performed by developers in developing lots for sale. Principles which govern the ascertainment of unimproved value have been stated frequently. Under s.3 of the Act the Chief Executive must decide the unimproved value of land to be valued for the Acts under which Local Authorities are established. "Unimproved value" is defined in s.3 as meaning:- "in relation to improved land - the capital sum which the fee-simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require, assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist." In Toohey's Ltd v. The Valuer-General (1925) A.C. 439 P.C. Lord Dunedin at page 433 discussing "unimproved value" said:- "Now, what he (the valuer) has to consider is what the land would fetch as at the date of the valuation if the improvements made had not been made. Words could scarcely be clearer to show that the improvements were to be left entirely out of view. They are to be taken, not only as non-existent, but as if they never had existed ... What the Act requires is really quite simple. Here is a plot of land; assume that there is nothing on it in the way of improvement, what would it fetch in the market? It will be observed that the value is not what has been sometimes designated by the expression 'prairie value'. The land must be taken as it exists at the date of valuation. " See also Tetzner v. Colonial Sugar Refining Co Ltd (1958) AC 50 (PC). The test requires that the subject land be viewed as unimproved land but with all other services, developments, etc., external to its boundaries as they exist at the date of valuation. The question which Mr Etlin raises generally was considered and ruled upon by the Land Appeal Court in Clough v. The Valuer-General (1981-82) 8 QLCR 70, where at pp.73-74, the Court said:- "A road, or service (sewerage, water or electricity) are not in the strict legal sense appurtenant to a parcel of land. They do not belong to it as a property right. They do not pass with it as an appendage to its ownership. In point of fact the land in the road is owned by the Crown. Similarly the wires, pipes or drains exterior to the parcel (and in some cases within the bounds of the parcel) are owned by the relevant service authority. No improvement which is not on the subject parcel or strictly appurtenant thereto can -- 2 of 3 -- 3 be considered an improvement for the purposes of section 3 of the Valuation of Land Act. " It follows that the enhancement which flows to a block of land from the provision of roads and other services is to be considered in ascertaining unimproved value. Mr Singh who wrote the valuation was fully aware of the position with sewerage. It is a matter which more than likely has been on the Department's file dealing with this lot since objection was made in 1986/87. I am unable to say on the evidence that Mr Singh has failed to appreciate the significance of the point regarding sewerage nor can I say that he has failed to apply the market in accordance with valuation principles. In the circumstances, the appeal is dismissed and the determination of the Chief Executive is affirmed. (DM White) President of the Land Court -- 3 of 3 --