Corvan v Chief Executive, Department of Lands [1995] QLC 59

LAND COURT BRISBANE 21 JULY 1995 Re: Appeals against Annual Valuations Valuation of Land Act 1944 Local Authority: BCC Wynnum (AV93-284 and AV94-246) Gloria Dorothy Corvan v. Chief Executive, Department of Lands (Hearing at Brisbane) D E C I S I O N The appellant lodged appeals against the unimproved values placed on the subject property by the Chief Executive under the provisions of the Valuation of Land Act 1944. In the case of AV93-284 the Chief Executive applied a value of $152,500 as at 31 March 1992, whilst the appellant says that the property ought to be valued at $100,000. As will be read later in this decision, the Chief Executive led evidence to a value of $140,000. In the matter of AV94-246 the Chief Executive applied a value of $160,000 as at 30 June 1993, whilst the appellant says the valuation ought to be $105,000. In this case the Chief Executive led evidence to a value of $147,500. Both matters were heard together with the consent of the parties. Mr Andrew Hamilton Corvan, the appellant's husband, appeared and gave evidence in these matters. Mr Corvan had previously been a registered valuer, retiring in 1973. Mr Corvan had been told a few minutes before the hearing commenced of the lower valuations that the Chief Executive would say should be applied to the subject land. In response to a question from me, Mr Corvan said that he had considered the matter and elected to proceed. The grounds of appeal in these matters are: AV93-284"The valuation of the subject property is grossly excessive in relation to other valuations on the block especially Lots 88 and 100 Akonna Street". AV94-246"The valuation is excessive in relation to other residential land in the block". The subject property is described as Lot 145 on Registered Plan 32988 and Lot 146 on Registered Plan 83961, containing an area of 870m2. The zoning of the land is "Residential B index 4" in the town planning scheme for the City of Brisbane, however, [1995] QLC 59 -- 1 of 7 -- 2 has a single-unit dwelling erected on it being used for single family purposes. Akonna Street is bitumen sealed and has concrete kerb and channelling. The roadway has been excavated in front of the subject and a concrete masonry retaining wall, approximately 2 metres high, has been constructed on the front alignment of the property. Vehicle access onto the subject is obtained via a driveway to the rear of the subject from Edith Street. The driveway is part of the subject land, however, is subject to an encumbrance easement which benefits land adjoining the subject at the rear. Usual services are available. The subject land is about 300 metres westerly from the Moreton Bay shoreline and enjoys some views of that bay. The ground level at the front of the subject is approximately 10 metres Australian Height Datum, whilst land on the opposite or eastern side of Akonna Street is at approximately 5 metres Australian Height Datum. Mr Corvan tendered a statement in these matters. In that statement Mr Corvan presented his view of the value of the subject land as at the later relevant date and asked that I take into account this evidence in considering both matters. He proceeded on the footing that the highest and best use of the subject land was multi-unit residential and in so doing compared the subject firstly with the property adjoining to the north (100 Akonna Street), otherwise known as "Island View". This property is improved with the construction of home units. Mr Corvan compared the subject with "Island View" on a dollar square metre basis, using the value of $157,500 placed upon that property by the Chief Executive as at 30 June 1993 as the base figure. In comparing this basis with the subject property, he made allowance for the encumbrance easement on the subject, costs of excavation to provide access to the subject for multi-unit purposes and other allowances arriving at a value for the subject land of $118,550 as a multi-unit residential site. Then, by reference to what he understood to be concessions provided elsewhere by the Chief Executive for residential property, Mr Corvan deducted a discount of 33 1/3% to arrive at a net valuation of $79,000. Mr Corvan made reference to the property located at 88 Akonna Street, referred to as "Metz Lodge", however, did not carry out a complete comparison with this property. His statement considered the adjoining property to the south of the subject and, in so doing, carried out a similar exercise of comparison with "Island View" as he had done with the subject. This exercise revealed a net figure of $87,700. This land was referred to in evidence as the Edwards' property. Mr Corvan saw it as being superior to the subject. Given the narrow grounds of appeal in AV93-284, I would not be able to take into account Mr Corvan's comparison with the Edwards' property as it is mandatory that an appellant is limited in the conduct of an appeal to the grounds set out in his Notice of Appeal. Section 45(4) of the Valuation of Land Act 1944 provides: -- 2 of 7 -- 3 " 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." Jayar Pty Ltd v. The Valuer-General (1984) 10 QLCR 132 is a case where the appellant led evidence to matters outside the ground of appeal and the Court held that it could not take these matters into account. The same reasoning would apply in the instant case, however, this has no impact on my final decision. In his approach, Mr Corvan has proceeded on the assumption that for the purposes of the Valuation of Land Act 1944 a property being used exclusively for residential purposes would attract a concession in the form of a discount from the highest and best use value. Section 17(1) of the Act provides: " In making a valuation of the unimproved value of land exclusively used for purposes of a single dwelling house or for purposes of farming, any enhancement in that value for that the land has been subdivided by survey or has a potential use for industrial, subdivisional or any other purposes shall be disregarded irrespective of whether or not, in case of potential use as aforesaid, that potential use is lawful when the valuation is made." It can be seen that this provision does not authorise the approach taken by Mr Corvan. Section 17(1) is an instruction from Parliament that lands used exclusively for residential purposes are subject to an exception to the general rule that land is to be valued for its highest and best use. The provision has frequently been described as a "protective provision". If I set aside the discount element of Mr Corvan's approach and proceed on the footing, as I should, that the highest and best use of the subject land is residential, then I am, with respect to the balance of his approach, left with a block-to-block comparison based on a value per unit area. The first difficulty I would have in following such an approach is that residential valuations ought to be carried out on a site basis, not on a value per unit area basis. The Land Appeal Court expressed this proposition in H and E Grahn v. The Valuer-General (AV89-246 and 247), 13 December 1990, unreported: "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." The second difficulty I would have is that comparisons with basic properties should be carried out on the basis of comparing like with like. This is a principle of the practice of valuation and has received judicial approval on many occasions. The evidence was that the valuation on "Island View" relied upon by Mr Corvan was based -- 3 of 7 -- 4 on a multi-unit highest and best use, whereas the subject must be valued on the basis of its residential usage. It follows then that I am not able to place reliance on any part of Mr Corvan's statement for valuation purposes. In addition to his statement, Mr Corvan tendered some photographs which were useful in understanding the evidence. Evidence on behalf of the Chief Executive was given by Gerard Francis Glancy, a registered valuer, employed by the Department of Lands. Mr Glancy did not carry out the original valuations which generated the figures appealed against and does not agree with those valuations. His figures are $140,000 with respect to AV93-284 and $147,500 with respect to AV94-246. In his written valuation of the subject Mr Glancy relied on two sales, the first being located on the corner of Boswell Terrace and Nelson Parade, yielded an analysed unimproved value of $209,000; and the second being located on Carlton Terrace, yielded an analysed unimproved value of $118,500. Mr Glancy's valuation included a comparison between the sale properties and the subject and he expanded upon this in oral evidence. He explained that he had taken into account the encumbrance easement affecting the subject land and, following cross-examination on the point, said that he would make no further discount on his valuation with respect to the evidence from Mr Corvan that there were sometimes disturbances associated with the use by the public of toilet facilities located on the land to the rear of the subject. Mr Corvan challenged the sales on the basis that they were in a more prestigious area than the subject, however, Mr Glancy convinced me that his comparison was sound in that views from the subject outweighed any remnant of prestige associated with the addresses the basic sales occupied. I find that I would accept Mr Glancy's view of the value of the subject land at the respective relevant dates. Mr Glancy was aware of the grounds of appeal, namely based on relativity, and therefore sought to address this in his evidence. Mr Glancy did not agree with the values applied by the Chief Executive to the "Island View" property of $132,000 as at the 1992 relevant date, and $157,500 as at the 1993 relevant date. He relied on two multi-unit sales to arrive at a value for the "Island View" block of $155,000 as at the 1992 date and $157,500 as at the 1993 date. These figures were based on Mr Glancy's understanding that six home units were constructed on the "Island View" site. Following the conclusion of the hearing, he discovered that there were only four units on the site. He completed another exercise on this basis and forwarded this to the Registrar of the Court. A further copy was provided to Mr Corvan who elected to offer no further comment. In this subsequent exercise, Mr Glancy valued the "Island View" site at $152,000 as at the 1992 date for multi-unit purposes, but then carried out a valuation on the land for single-unit residential purposes and in this exercise arrived at figures of $160,000 as at the 1992 date and $170,000 as at the 1993 date. -- 4 of 7 -- 5 The applied values for the "Metz Lodge" property were $139,000 for the 1992 relevant date and $167,500 for the 1993 relevant date. Mr Glancy disagreed with these valuations also, and, based on the two sales referred to earlier, concluded that the valuations ought to be $160,000 and $190,000 respectively. Mr Glancy did not revalue the Edwards' property, however, the relativity between the value placed on this property of $142,000 as at the 1992 relevant date and $149,000 as at the 1993 relevant date have changed as they relate to his changed valuations for the subject land. In his evidence, Mr Glancy outlined points of comparison between the subject and the Edwards' property which substantiated the new relationship in values. In brief, he pointed out that Edwards has more usable land; has better security of views; and has no need for a retaining wall on its frontage. This comparison reinforced Mr Glancy's view of the value of the subject. I have no authority to alter the valuations which apply to the "Island View" property or the "Metz Lodge" property in that neither is subject to an appeal to this Court. Section 33 of the Valuation of Land Act 1944 provides: " 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." I do not express an opinion as to whether the valuations for the "Island View" and "Metz Lodge" properties suggested by Mr Glancy are correct, excepting to say that I agree with Mr Glancy that it is appropriate, having regard to all of the evidence, that the valuations placed on the subject land should be lower than the valuations applied to both of these other properties. The state of the evidence is such that I am of the view that Mr Glancy's valuations for the subject land are correct, yet the appellant has not led evidence towards this view nor, importantly, towards proving the grounds of appeal as is required by section 45(4) of the Valuation of Land Act 1944. The question that I ask is whether the appellant can discharge the onus imposed upon her by section 45(4) by relying on the evidence adduced by the Chief Executive. It seems to me to be quite clear that section 45(4) imposes a "legal burden" of proof on an appellant, that is a burden which remains with her throughout the case. See, for example, Fitzpatrick v. Walter E Cooper Pty Ltd 1935 54 CLR 200 at 218 and the discussion on this topic in "Cross on Evidence" Fourth Australian Edition, pp.185-187 from which text these quotes are taken: " The legal burden of proof is the obligation of a party to meet the requirement of a rule of law that a fact in issue be proved (or disproved) either by a preponderance of the evidence or beyond reasonable doubt, as the case may be." ... -- 5 of 7 -- 6 " The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue, due regard being had to the standard of proof demanded of the party under such obligation." The text discusses the topic by referring to a criminal law example: "Depending on what follows, it is up to the accused to produce or elicit this evidence, although it will be sufficient if the evidence might raise a reasonable doubt in the minds of the jury as to whether his conduct was provoked or unprovoked. Secondly, it must not be supposed that the production of evidence always involves the giving of testimony or the tendering of documents. This will be necessary in the vast majority of cases in which an evidential burden has to be discharged, but there are rare instances in which the evidence called on the other side is such that it discloses facts which might give rise to a defence." An example may be found in the case R v. Bonnick (1976) 66 Cr App R 266 (CA). The following quotation taken from State Government Insurance Office (Qld) v The Valuer-General (1980-81) 7 QLCR 171 at 193 provides guidance in this jurisdiction: "The Valuer-General joined issue with the appellant and in so doing revealed omissions and weaknesses inherent in the process of his valuation. Consequently, in my opinion, he cannot claim the protection of section 13(7). The judgment of Gibbs J., as he then was, in Brisbane City Council v The Valuer-General for the State of Queensland, (1977-78) 140 CLR 41 at p.57 gives support to this opinion." I gained some further assistance in this matter from Appeals against Determinations of the Valuer-General, Shire of Cloncurry (1971) 38 CLLR 1 where Mr Dodds said at pp.3 and 4: "No doubt if the Valuer-General elects to give evidence the appellant is entitled to seize on any revealed weakness in his evidence in relation to any ground of appeal," ... "But when all the evidence is in, then at the end of the day if the balances are not tipped in favour of the appellant in relation to any or all of his grounds of appeal, even if the balances are then level as between the two parties, then in my view the decision must go against the appellant. The Land Court has wide powers in its decisions under the equity and good conscience provisions of the Land Acts, in s. 41(5)(a), but these cannot save the appellant in the circumstances outlined immediately above." At the outset of a hearing then, an appellant has both the legal burden of proof and the burden of adducing evidence sufficient to convince the Court that the grounds of appeal, or any of them, have been proven. If, at the conclusion of the appellant's case, the Chief Executive elects to not call evidence, then the Court must consider the case on the state of the evidence at that stage. On the other hand, the Chief Executive may form the view that a prima facie case exists, or has been made out on a limited matter, or range of matters, not encompassing the complete grounds of appeal; or he -- 6 of 7 -- 7 may, as in the subject case, form the view that the original valuation is wrong and ought to be corrected. He may elect to lead evidence accordingly. If, in the subject case, Mr Glancy had elected not to call evidence, quite clearly the appeal would have failed. However, this was not the case. From a practical perspective, it would be an horrendous task for a tribunal of fact to be permitted to draw conclusions on the part of one party from evidence adduced by that party only. This is particularly the case in valuation matters where, in arriving at a conclusion on a particular issue, the evidence of both parties will often be considered useful, in part. Mr Glancy has given evidence that the valuations placed on the subject land at the relevant dates are too high, based on sales evidence. He said that the subject ought to, on a direct comparison basis with the Edwards' property, be of lower value and that in the market area in question it is not appropriate that the subject have a value higher than either the "Island View" block or the "Metz Lodge" block. It follows, as a matter of logic, when I consider the grounds of appeal that the appellant has discharged the onus of proof. Whilst I am prepared to determine the matters, I must say that another course was open to the Chief Executive. That would have been to alter the valuation, as is provided for by sections 28 and 29 of the Valuation of Land Act 1944. By utilising that process, the landholder would have been afforded a right of objection and appeal against the new valuations and sufficient time to address the matters, rather than the very brief time afforded Mr Corvan before the hearing. Having said that, I must commend Mr Glancy for deciding to lead evidence and not relying on the technical opportunity provided by section 45(4) of the Act, and for the forthright way in which he gave evidence. In the result, the appeals are allowed and the unimproved value for the subject land as at 31 March 1992 is determined in the amount of One Hundred and Forty Thousand Dollars ($140,000); and the unimproved value as at 30 June 1993 is determined in the amount of One Hundred and Forty-seven Thousand Five Hundred Dollars ($147,500). RP SCOTT MEMBER OF THE LAND COURT -- 7 of 7 --