Damman v Chief Executive, Department of Lands [1995] QLC 141

LAND COURT BRISBANE 25 October 1995 Re: Appeal against annual valuation of the Chief Executive Shire of Albert AV93-542 Ronald G and Mary Damman v Chief Executive, Department of Lands (Heard at Coolangatta) DECISION Ronald G Damman and Mary Damman (the "appellants") own land at 19 Lindsay Parade, Paradise Point. They purchased the land in 1979 and built on it a modest home for their retirement. In the annual valuation of the land as at 31 March 1992, the respondent assessed the unimproved value of the land to be $207,500. The appellants objected to that valuation. Their objection was disallowed and the appellants appealed to the Land Court. They estimated the unimproved value of the land at that date to be $200,000. The valuation of Land Act 1944 (the "Act") provides that the unimproved value of land is 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 (section 3(1)). The Act also provides that: (a)a notice of appeal shall state the grounds of appeal; (b)the appeal shall be limited to the grounds so stated; and (c)the burden of proving any and every such ground shall be upon the owner (section 45 (4)). [1995] QLC 141 -- 1 of 3 -- 2 The grounds of appeal were as follows: "I appeal to the Land Court on the following grounds. My age is 74 and my husband is 80 years old. He is a full TPI recipient and is in poor health. Our house is our most valued possession naturally and if the land value goes up so does the council rate. This will make it impossible to live here any longer, and at our age the thought is unbearable. We bought the land in 1979 and paid $17,500 and it doesn't seem fair in the state of national economy today that the value now is $207,500." The grounds of appeal express the concern of many ratepayers, namely, that as property values rise so do the rates payable with respect to their blocks of land. The burden of such increases is felt particularly by those whose principal asset is increasing rapidly in value, but whose available financial resources are limited. Increases in rates and the capacity of people to pay rates are not, however, relevant in these proceedings. For the appeal to succeed, the appellants must establish that the unimproved value of their land is less than the sum of $207,500 and they must do so by reference to the grounds of appeal just quoted. The burden is not easy to discharge, particularly as the Act states: "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" (section 33). As the High Court has stated, the presumption created by that section is rebutted once it is shown that: (a)in making the valuation the respondent acted upon a wrong principle, or made a serious error of fact; or (b)the valuation was made by a method fundamentally erroneous. (Brisbane City Council v The Valuer-General (1978) 140 CLR 41 at 56-7.) No attempt was made to rebut the presumption in those ways, nor could the appellants have made such a submission given the grounds of their appeal. It has been stated in numerous cases that the best basis for assessment of unimproved value is the use of sales of vacant or lightly improved parcels of land. No such sales evidence was given in this case. -- 2 of 3 -- 3 Mr Savic, counsel for the appellants, tendered a list of sales of five properties in Livingstone Parade (Exhibit 3). The list stated no more than the address, sale price and dates of sales. The sales were between April 1994 and March 1995, some two to three years after the relevant date of valuation. Sales of comparable unimproved land substantially after the relevant date of valuation are of little or no use in determining the value of land on an annual valuation basis. These were not sales of that type. Apparently each property was sold in an improved state, that is, with a dwelling on it. Such sales are notoriously difficult to analyse for the purpose of ascertaining unimproved value of land. There was no evidence of the comparability of the subject land with neighbouring blocks, and the range of sale prices (from $235,000 to $1,350,000) give no indication of the land value of those blocks, let alone the unimproved value of the subject land. No weight can be given to Exhibit 3. Mr Savic asserted that, in an improved state, the appellants' property could not have sold for $207,500 in 1993. He called no evidence to support that assertion. In the absence of relevant evidence on behalf of the appellants, the respondent called no evidence. For their appeal to have had any prospect of success the appellants would have had to put in issue the basis of the valuation. They could, for example, have asserted that the valuation of the subject land was not supported by sales evidence or that their land was valued too highly when compared with similar neighbouring land. They did not appeal on those grounds. The preceding five paragraphs should not be read as critical of the appellants (who appear to have lodged their appeal without legal or valuation advice) nor of their counsel (who firmly argued his clients' cause in the face of legislative provisions which gave their cause no prospect of success). These paragraphs are meant to provide some guidance for the future, if the appellants are considering appealing against subsequent valuations. The appeal is dismissed and the valuation of the Chief Executive is affirmed. GJ Neate Member of the Land Court -- 3 of 3 --