Amprimo v Chief Executive, Department of Lands [1995] QLC 170

[1995] QLC 170 ILIBRARY COPY] LAND COURT BRISBANE 3 AUGUST 1995 Re: Appeals against Valuations Valuation of Land Act 1944 Valuation Roll No. 2306/10000 Local Authority: BCC-Wynnum (V93-547 and V93-548) John F and Jacquel yn F Am primo V. C: Chief Executive , Department of Lands (Hearing at Brisbane) DECISION The subject land is located at 161 Wynnum Esplanade, Wynnum . It was purchased by the appellants on 8 May 1992, having previously been held together with the block immediately to the north. The joint blocks had been valued for the purposes of the Valuation of Land Act 1944 at $197,500 as at 31 March 1990, having a highest and best use of single-unit residential. Appeal V93-548 is with respect to the unimproved value placed on the subject land when it became a separate parcel on purchase by the appellants. The Chief Executive placed a valuation of $88,500 on the land as at a relevant date of 31 March 1990, whereas the appellants led evidence to a value of $83,680, having previously in the Notice of Appeal estimated a figure of $80,000. I refer to this matter later in this decision as the "split valuation". Appeal V93-547 is in respect of the annual valuation of $104,000 placed on the subject land by the Chief Executive as at 31 March 1992. In this appeal, referred to later as the "annual valuation", the appellants submitted an estimate of $90,000 in the Notice of Appeal, however, led evidence to a figure of $95,000. Mr John Felix Amprimo conducted the cases for the appellants and gave evidence. These two appeals were heard separately at the request of the appellants, however, it was agreed that evidence heard in both matters be taken into account in deciding each appeal to the extent that this is appropriate. The subject land comprises an area of 427m 2, is nearly level and enjoys views over Moreton Bay. Wynnum Esplanade is a bitumen sealed dual carriageway -- 1 of 10 -- 2 with concrete kerbing and channelling and formed footpaths. On the opposite side of Wynnum Esplanade to the subject lies a large wading pool set in an area of parkland which borders the Bay. The usual services are available to the subject land. The land is zoned "Residential B R4" under the Brisbane City Council Town Plan which was effective at each relevant date of valuation. The land was vacant at each of these dates. Evidence on behalf of the Chief Executive was given by Venerando Di Salvo, a registered valuer, who also conducted his side of the matter. His evidence on the question of highest and best use of the subject land was that whilst its zoning was "Residential B", the size of the subject was such that it did not satisfy the minimum area requirements for the City Council to consider an application for multi-use development. Having regard to this and to the other attributes of the land, its highest and best use was residential. Mr Amprimo, on the other hand, suggested that as the subject land had, at the time of the split valuation, the potential of being included in adjoining lands for unit development that this should be taken into account in determining its value. Whilst this would appear to be an argument that was contrary to the interests of the appellants, it seems as though it was based on Mr Amprimo's desire to have the subject land valued on a dollar square metre basis, using as bases properties valued for a highest and best use of multi-unit residential. I would say two things about this. The first is that there was no expert evidence indicating that the method of comparison between multi-unit residential sites should be on the basis of a dollar per metre basis of the total site, rather than some other method. Secondly, if I were to find there was some potential in the subject land for unit development, that would be expressed by way of a premium in value to be added to the value found as a single-unit residential site. Having regard to these matters, to the evidence of Mr Di Salvo on the issue, and to the fact that the appellants have, since purchase, constructed a single-unit residence on the subject land, I find that the highest and best use of the subject land at each relevant date is single-unit residential. Each valuation was carried out on behalf of the Chief Executive at the same time, however, as at different relevant dates. The concept of relevant dates is well described in RF & EA Wi gg ins v. The Valuer-General (19 November 1992) unreported at pp.3-4 : -- 2 of 10 -- 3 "The valuation was not to be made 'at' (or on) that date but 'as at' that date. As Mr Justice Windeyer has pointed out 'The value of any land must obviously depend not on the date when the assessment of value is made but on the date as of which it is made.' (Kilcoy Shire Council v. Brisbane City Council (1971) 124 CLR 60). In other words, the Valuer-General was not obliged to make the valuation on 31st March, 1991, but was obliged to determine what the unimproved value of each block of land was at that date. In making the valuation he could have regard to sales of comparable blocks of land at or about that date. The Act does not oblige the Valuer-General to consider only sales prior to or on that date and ignore proximate but after date sales which help to provide a basis for assessing the va_lue of a particular block at that date." One difficulty which Mr Amprimo appeared to have with respect to the split valuation was that a valuation of the joint blocks, (of which the subject was part as at 31 March 1990, the same relevant date for the split valuation) of $197,500 had been applied by the Chief Executive, whereas the total valuations of the subject land and its now separate neighbour as at the same date resulted in a combined figure of $207,500. He noted that the values placed on the previously joint blocks bore a disproportionate relationship to each other, having regard to their respective areas. His land appears to have suffered in this regard. How could this be so? The answer lies first of all in understanding that whilst the subject land is to be valued as at 31 March 1990, it is to be valued having regard to the condition that it was in at the time that it became a separate parcel. Authority for this is found in State Government Insurance Office ( Old } v. The Valuer-General (1980-81) 7 QLCR 171 at 196: "To obtain consistency and correct relativity of valuation in respect of parcels created during a valuation period, it is necessary to go back to the level of valuation applying at the date of valuation for that period - the common date as at which all lands in the city or shire have been valued. However the parcel being valued has to be looked at in the environment, subject to any relevant laws and with the characteristics it possesses as at the date when it becomes liable to be valued, i.e. when it was created as a separate parcel." The subject at May 1992 was a separate residential site, whereas at 31 March 1990 had been part of a larger site valued, according to evidence from the Chief Executive, as a residential site. At this stage it is useful to introduce the case of Hand E Grahn v. The Valuer-General (AV89-246 and 247), 13 December 1990, unreported, where it was said: -- 3 of 10 -- 4 "for the purpose of valuing residential sites, the preferable method of comparison is on a site to site basis and not on the basis of a unit area value comparison. Site for site comparison should take into comparison such matters as the size of the lots, the situation of and access to the lots, the shape and topography of the lots etc and comparisons on a unit area basis do not necessarily reflect valuation considerations of the above features." It can be seen then that carrying out a split valuation is not a matter of splitting up and adjusting a pre-existing figure, but is a matter of valuing the subject land as a separate site and, in so doing, applying to that valuation the correct principles associated with all of its characteristics including its highest and best use. In his approach to the split valuation Mr Amprimo suggested this approach: Both 12 arcels Subiect garcel Other r2arcel Area (square metres) 1034 427 607 Percent of area 100% 41.3% 58.7% Proportionate UV at 30/6/91 $197,500 $81,560 $115,940 Assigned UV for split valuation $88,500 $119,000 Rate of increase in UV for split 8.5% 2.6% valuation He suggested that in this splitting process 'the subject. parcel was disadvantaged by being given a disproportionately higher valuation - 8.5% increase compared to 2.6% for the other parcel and that if the subject was also raised by only 2.6% then the split valuation would be $83,680. From what I have written above, it can be seen that this approach does not accord with principle. The grounds of appeal are similar in each matter and are expressed in the following terms: "1. Insufficient reasons given for disallowing the objection. No evidence given of criteria used in making the decision, the findings of fact for each criteria, and conclusions drawn. 2. Inadequate consideration has been given to the grounds of our objection. If same details for Lot 80/RP 33017/Tingalpa were used as a benchmark, then our valuation is too high. 3. Our valuation is too high when compared to neighbouring properties." The scheme of the Valuation of Land Act 1944 is that an objection is an administrative matter for the_Chief Executive and is not a matter for consideration -- 4 of 10 -- 5 by this Court. Accordingly, the first ground of appeal is not relevant to these proceedings. The first part of the second ground of appeal would appear to invite the Court to have regard to the grounds of the objection to the Chief Executive. I am unable to do this. In the matter of James J Bidner v. The Valuer-General (1992-93) 14 QLCR 88, it was held that a Notice of Appeal must be understood in its own terms not requiring reference to another document, neither annexed to the notice nor which the Chief Executive was formally obliged to provide to the Registrar. It seems to me, however, that the matters which the appellants wished to put before the Court were able to be brought under the remaining grounds of appeal. Before turning to these , however, I will refer to some aspects touching on the subject land which were considered during the course of the hearing. Each of these comprise matters which could have an impact on the value to be applied to the subject land and therefore feature in comparing the subject with basic properties. The first matter relates to the issue of fill. Mr Amprimo gave evidence that it is a Council requirement that the lowest habitable area of a house needs to be set at least 0.3 of a metre above the 1974 flood level. Whilst in a statement tendered in evidence the appellants said that 0.9 of a metre of fill had to be placed on the whole of the site to satisfy this Council requirement, as I understand the oral evidence of Mr Amprimo approximately 0.5 of a metre of fill would have satisfied Council's requirement, though an officer of the Council did advise Mr Amprimo to add a further 0.3 of a metre. Mr Amprimo took heed of this advice and even added another 150 to 200 metres to ensure that the subject land was not subjected to any localised water retention owing to the fact that the unit site on its northern side had added approximately 1 metre of fill, thereby creating the potential of water damming on the subject land. Mr Di Salvo, for the Chief Executive, agreed that 0.5 of a metre of fill placed on the subject land would be appropriate for its development for single residential purposes. He also said that there was historical evidence indicating that all of the land along the Esplanade was filled to a depth of about 1 metre. There was a difference of opinion between Mr Di Salvo and Mr Amprimo regarding the extent of flooding of the subject land during the 1974 flood which had combined with a king tide. Mr Di Salvo referred to a flood map supplied by the Brisbane City Council using the BCC datum which indicated the subject land to be -- 5 of 10 -- 6 inundated to a depth Mr Di Salvo calculated to be about 7 inches. Mr Amprimo, on the other hand, tendered a map whose origins were unclear and from which he understood that the subject had been inundated to an extent of 2. 33 feet. I have referred to the information attached to Mr Di Salvo's map showing conversions between the BCC Datum and the State Datum, the Railways Datum and the Australian Height Datum in the Wynnum area, however, none of my calculations based on this information were sufficient to reconcile the apparent differences between the two maps. Apart from this, th _e indicated flood lines on each map differed in certain respects. What I have done, however, is to take the 0.5 of a metre fill requirement (which would be necessary to raise the level of the subject land to a level of 0.3 of a metre above the 1974 flood level) and to say this is about 20 inches; then to say 0.3 of a metre is about 13 inches; therefore if the 1974 flood level was 7 inches above the surface of the subject land there would need to be an addition of about 0.5 of a metre (that is about 20 inches) of fill to take the land level to about 0.3 of a metre (that is about 13 inches) above the flood level. By this process I would arrive at the conclusion that, given the consistency of the figures of 7 inches flood level and 0.5 of a metre fill, then both of these figures are probably right. If I am wrong in this conclusion, then that can only be because the appellants have failed to adduce sufficiently clear evidence on these points. Nevertheless, I think that this is a sufficiently reliable approach for me to proceed on the conclusions that I have arrived at. It was common ground between the parties that the subject land had foundation problems requiring concrete piling over the whole slab area. There was also agreement between the parties that the subject land was subject to traffic noise being located on the busiest part of the Espfanade. Mr Amprimo, quite properly, · attempted to give some precision to his appreciation of the traffic issue by referring to vehicle counts supplied to him by the Brisbane City Council. These indicated that on 7 April 1991 a total of 4,145 vehicles passed the subject land, whilst on 16 June 1993 a total of 2,140 vehicles passed land located at 317 Upper Esplanade (a basis used by the Chief Executive in the split valuation appeal). I have checked the calendars for the years in question and have found that the traffic count near the subject land occurred on a Sunday, whilst that of the other block occurred on a -- 6 of 10 -- 7 Wednesday. Given that there was undisputed evidence from Mr Di Salvo that the subject land would experience a high volume of traffic on the weekends, I find that I cannot rely on the traffic count evidence adduced by Mr Amprimo. Whilst his reference to this evidence was based on his view that Mr Di Salvo had not paid sufficient regard fo the traffic noise impacting upon the subject land, I have looked at the evidence closely and have concluded that Mr Di Salvo appreciated the traffic issue. In pursuing his estimate of $95,000 bei~g the annual valuation for the subject land, Mr Amprimo referred to the Chief Executive's determination of $112,000 of the property located at 317 Upper Esplanade. This property was referred to throughout the hearing as "Lot 80". The sale of this property on 18 March 1990 was relied upon by Mr Di Salvo as a basis in the split valuation appeal. The sale was for an amount of $135,000 which was analysed by Mr Di Salvo to a figure of $130,000 being applied at $92,000 and seen by him to be superior to the subject. In Mr Amprimo's evidence, he made the points that Lot 80 was clearly superior to the subject land in that it required less fill (0.4 of a metre needed on Lot 80); had only minor foundation problems; was in a quieter area than the subject and was less subject to localised flooding, having a catchment of 4,500m 2 impacting upon it compared with 7,600m 2 for the subject. None of these matters was disagreed with in Mr Di Salvo's evidence although in comparing the subject with Lot 80, whether for the purposes of the split valuation or the later annual valuation, Mr Amprimo was of the view that there was insufficient allowance in the comparison for the superiority of Lot 80 over the subject. I note that in his written valuation Mr Di Salvo failed to record that the sale property had a house on it at the time of sale: this fact emerging in Mr Di Salvo's oral evidence. Whilst it is preferable that such a fact be included in the written valuation, I note that the information was volunteered by Mr Di Salvo, who understood the house to have no value. In the split valuation appeal Mr Di Salvo relied upon a second basis, that being a sale on 3 May 1990 for an amount of $128,000. This sale was located on the corner of Esplanade Crescent and Bride Street and analysed to an unimproved value of $127,000 applied to $120,000. This property was seen by Mr Di Salvo as being superior to the subject. Mr Amprimo did not know this property and offered no evidence with respect to it. -- 7 of 10 -- 8 In so far as the split valuation is concerned then, I have Mr Amprimo's exercise based on the valuation of $197,500 which had applied to the parent parcel from which the subject was subdivided; and Mr Di Salvo's two sales, one of which (Lot 80) Mr Amprimo was in a position to offer evidence about. From what I have written earlier in this decision, it will be clear that I gain no assistance from the exercise proffered by Mr Amprimo. The question is whether the appellants have proved their grounds of appeal, as is required by section 56(2) of the Valuation of Land Act 1944. As reprinted 27 January 1994, this section provides: "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." Mr Amprimo and Mr Di Salvo agreed that Lot 80 was superior to the subject, the issue being whether Mr Di Salvo had made sufficient allowance for that superiority in striking his value for the subject. I find that he has, and in so finding I am influenced by the fact that he is an expert witness in such matters. I should add that my conclusion of preferring Mr Di Salvo's evidence on the comparison between the subject and Lot 80 applies equally in the annual valuation matter. In his evidence in the annual valuation appeal, Mr Amprimo referred to properties located at 159 and 165 Wynnum Esplanade. These basic properties adjoin the subject land on either side. Each is used for multiple residential unit purposes and was valued as such. It is a well established basic principle of valuation that comparisons should be made on a like-with-like basis unless, of course, such evidence is unavailable. That evidence being available, I find no assistance afforded by the two basic properties referred to here as I have found that the highest and best use of the subject is single-unit residential. Mr Amprimo also referred to a property located at 11 Clara Street which had, - at the same date as the annual valuation for the subject land, a valuation of$68,000 placed on it by the Chief Executive. The basis is of elongated shape with the short boundary facing Clara Street. It is used for residential purposes and is the same size as the subject land. The eastern boundary of the Clara Street property abuts both the rear boundary of the subject and that of 165 Wynn um Esplanade. Both of these properties have buildings constructed on them to heights of 9 metres and in excess of 10 metres, respectively. These structures would have a substantial impact on the views available from the Clara Street property, though according to -- 8 of 10 -- 9 Mr Amprimo some views were still available from the front and the rear of the land. He said that the subject land also faced the risk of losing its currently uninterrupted views by having a development such as a tourist development constructed in the place of the wading pool. This, I would think, is such a remote possibility that a prudent purchaser would not make any allowance for it in arriving at a purchase price for the subject land. Mr Amprimo further points out that the subject land is impacted more by traffic and potential flooding and would suffer more with respect to drainage problems than would the Clara Street property. This would be so, however, I have perused the various contour and locality maps tendered in evidence and have formed the view that, excepting with regard to the issue of traffic noise, there would not be a significant difference between the basic property and the subject with regard to these factors. In the annual valuation matter Mr Di Salvo relied upon the subject sale. The sale price was $123,000 which analysed to $118,000 which Mr Di Salvo applied to a level of $104,000 only. Mr Amprimo's evidence was that at the time of purchasing the subject land, he and his wife had only recently arrived from Warwick and were unaware of the disabilities of the site mentioned earlier. He said that had he and his wife been aware of the site problems associated with the subject land they would not have agreed to a $123,000 sale price and "we probably would not have agreed to a $104,000 price either". Mr Di Salvo also tendered a relativity map showing unimproved values determined by the Chief Executive for a number of other properties on the Esplanade. Mr Amprimo saw these valuations as being "fairly ... equitable" to the $104,000 placed on the subject land, however, he questioned Mr Di Salvo on one of these valuations being a house adjoining a takeaway food outlet. Nothing, however, turns on this. It seems to me that the valuation placed on the subject land bears a reasonable relationship with values applied to other properties on the Esplanade identified on Mr Di Salvo's relativity map. I also find that whilst the subject sale was criticised by Mr Amprimo as a basis of valuation, it should not be disregarded as it is supported by the properties on the relativity map which indicate that Mr Di Salvo's analysis and application of the subject sale sufficiently caters for any defect in the transaction. The values placed on the properties on the relativity map also show that the basis referred to by Mr Amprimo at 11 Clara Street is at a -- 9 of 10 -- • ! 10 much lower level of values than properties on the Esplanade. Mr Di Salvo explained that Wynnum Esplanade is a different sub-market area from others in the vicinity. The appeals in these matters are dismissed and the valuations of the Chief Executive are affirmed. RP SCOTT MEMBER OF THE LAND COURT -- 10 of 10 --