Bilbrough v Chief Executive, Department of Lands [1995] QLC 110

LAND COURT BRISBANE 14 September 1995 Re: Appeal against a valuation - Gold Coast City - AV95-82. Shirley Patricia Bilbrough 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 5 on Plan C33113, parish Tallebudgera, in the sum of $325,000 for the purposes of the Annual Valuation of the Area as at 1 January 1995. The appellant is contending for an unimproved value of $250,000 on grounds as follows: (1)Inadequate legal access to property (2)Council restrictions on development (3)Aircraft noise - flight path directly overhead (4)Rainwater from adjacent lots drains onto my property causing up to 30cm depth of water between my house and garage (5)Smells and noise from neighbouring restaurant and hotel The subject lot is a rectangular shaped lot of 1012m2 with frontage to the unformed Pacific Parade at Tugun and with legal access by easement 2.15 metres wide to a lane off Dune Street as shown on Annexure "A". The lot is developed with a single unit dwelling house and is used for this purpose. In terms of the usage made of lots within this block between Dune Street and Tooloona Street on the north, the usage of the subject lot is unique. The lot is separated from highwater mark of the sea at Tugun Beach by Pacific Parade which is unformed. Under the Town Plan for the Gold Coast City, the lot is within an area designated a Special Development area. At the date the valuation is required to be made, the lot was zoned "Special Facility - Dwelling House". This seems to have followed considerations given the area by Government and Local Government planners when reviewing the planning scheme for the area. A meeting of Council of 10 September 1993 records on p. 404 the intention which is apparent in the zoning as at the relevant date. Clause (vi) provides: "The zoning of all allotments within the area described as Site 6 be amended so as to include those allotments within the Special Facility Zone with the specific description for each allotment being as follows: [1995] QLC 110 -- 1 of 4 -- 2 Lot 3 RP 804688 - Hotel Lot 4 C33113 - Multi unit building Lot 5 C33113 - Dwelling house Lot 6 C33113 - Multi unit building Lot 7 C33113 - Multi unit building Lot 8 C33128 - Multi unit building Lot 1 RP 175957 - Multi unit building Lot 15 C33135 - Community hall Lot 14 C33122 - Medical complex, shop and residence Lot 19 C33122 - Restaurant and residence Lot 13 C33122 - Shop and residence Lot 1 RP 80763 - Dwelling house Lot 2 RP 80763 - Vehicle Sales Premises Lots 22 and 23 C33128 - Restaurant Lots 21 and 11 C33128 - Medical complex and residence The specific descriptions may be compared with the uses shown on Annexure A. Page 403 of the same record contains the intent of the Special Facility zoning of the area because of the impact of aircraft operations associated with the Coolangatta Airport. Generally speaking, the intent therein expressed is not to increase residential density of the area and to confine development to low-key commercial development such as small-scale offices, retail developments which require large display areas, service stations, etc. "Other development which may be acceptable in these areas includes residential development but only where no increase in population density results and where development is designed to minimise potential adverse impacts from airport operations". Mr PJ Bilbrough appeared on behalf of the appellant and gave evidence in support of the grounds of the appeal. The greatest emphasis was placed on the narrowness of the easement and the care and attention which must be undertaken in traversing it with conventional passenger sedans - estimates ranging from 10cms to 15cms of clearance on each side. It is conceded by Mr SRS Montgomery, registered valuer in the employ of the Department of Lands, that the site possesses these access problems, that it suffers from aircraft noise, takes rainwater and noise/smell nuisances from uses made of adjoining/nearby lots. Mr Montgomery says that the file dealing with the subject lot has been noted as to the access problem since as early as 1965 and that in 1992 and following, further allowances have been made for the effects of surrounding uses. He has valued the site under s.17 of the Act under which land exclusively used for single unit dwelling house purposes shall be valued without regard to any enhancement in that value for that the land may be put to higher and better uses. In terms of potential uses, Mr Montgomery said that under this zoning potential use is dependant upon acceptance by the Council of a proposal put forward by a developer. In this context, no good purpose can be served in addressing the question -- 2 of 4 -- 3 as to how the land might be used were it unimproved land or what it may be worth as unimproved land; be it developed as an entity or in conjunction with other land. As a 1012M2 residential site with ocean frontage, it is the opinion of Mr Montgomery that the site would fetch $325,000 for that purpose in the marketplace. He says that lots with such frontage are extremely rare on the Gold Coast and that most are of the order of 400m2. Mr Bilbrough in endeavouring to find a basis for the appellant's estimate of value referred to a sale of Lot 20 for $250,000. This lot fronts Golden Four Drive. It is within a commercial environment, does not have ocean frontage and is not comparable with the subject site. On the other hand, the worth which unit holders have as to the value of Lots 6/7 is displayed in the evidence of Mr Bilbrough, where he discusses possible costs of acquiring land to widen the easement. That evidence again is more relevant to highest and best use on general principles than it is with the valuation of the subject land as a residential site. It does, however, indicate in my opinion the value placed by these persons on location notwithstanding the agreed nuisances. Having considered the evidence, I am unable to say that the factors mentioned in the notice of appeal have not received due consideration by Mr Montgomery and the Chief Executive in deciding upon the objection to the valuation. Accordingly, the appeal is dismissed and the determination of the Chief Executive is affirmed. President of the Land Court -- 3 of 4 -- -- 4 of 4 --