Brooke v Chief Executive, Department of Lands [1993] QLC 154

LAND COURT BRISBANE 10TH DECEMBER, 1993 Re: Appeal against Annual Valuation Valuation of land Act 1944 Shire of Douglas (AV93-511) Peter Gilbert Brooke v. Chief Executive , De partment of Lands (Hearing at Mossman) DECISION Mr P G Brooke is the owner of land described as Lot 2 on Registered Plan 739134, Parish of Alexandra, County of Selander, containing an area of 8.727 hectares. In accordance with the provisions of Section 168(3) of the Valuation of Land Act 1944, the Valuer-General valued this land as at 31st March, 1992 at $85,000. Mr Brooke objected to this valuation and by letter dated 28th June, 1993, he was advised that his objection had been disallowed and the valuation remained unaltered at $85,000. Mr Brooke then lodged an appeal to the Land Court against this decision upon his objection. However, the Notice of Appeal was filed in the Land Court Registry on 3rd August, 1993, having been lodged by hand at 11.50 a.m. that day. The last date for receipt of appeals was 26th July, 1993 and therefore Mr Brooke's appeal was lodged out of time. On 5th August, 1993, a photocopy of Mr. Brooke's Notice of Appeal was received in the Land Court Registry by mail at 9 a.m. Mr Brooke's Notice of Appeal indicates that he realises that his appeal has been lodged out of time but says that when the matter is called on for hearing he will endeavour to satisfy the Court that the failure to institute the appeal within the [1993] QLC 154 -- 1 of 8 -- 2 time prescribed was caused by undue delay in the transmission of mail in the ordinary course of post. Under the provisions of Section 21 (3A) of the Valuation of Land Act 1944, in such circumstances the Court's jurisdiction does not lie unless the appellant satisfies the Court that his failure to institute the appeal within the prescribed time was caused by undue delay in the transmission of mail in the ordinary course of post. Accordingly, the Registrar wrote to Mr Brooke on 6th August, 1993, advising him that the matter would be set down for the purpose of initially determining the point of jurisdiction. When the matter was called on for hearing, Mr Brooke appeared and gave evidence that he was absent from his address from about the 4th April, 1993 to about the 14th August, 1993 and that he had paid the Post Office $10 per month to forward all his mail to his Brisbane address during that period. However, the notice of decision on objection had issued on the 28th of June 1993 and had gone into his private mailbag at Mossman, being held there by the Post Office until 29th July, 1993, when it was eventually forwarded to his Brisbane address. Mr Brooke tendered the original decision on objection and the envelope in which it came, which was clearly date stamped "29th July, 1993, Cairns Mail Centre". He also tendered a letter from the Postal Manager at Mossman dated 18th October, 1993, explaining that due to the shortage of staff and an investigation inquiry going on at the time, the Post Office was unable to keep the redirected mail up to date. The Postal Manager acknowledged that it was their fault that there had been a delay in the mail. -- 2 of 8 -- 3 Mr Brooke explained that immediately upon receipt of that mail, he had gone to the Registry of the Land Court and there had filled in a Notice of Appeal which he lodged. He was told by an officer in the Registry that he should post another one as soon as possible. This explains the receipt of the second copy of the Notice of Appeal. After hearing Mr Brooke's evidence, Mr Kevin Allan, senior valuer who appeared on behalf of the Chief Executive, Department of Lands, said that the Department did not wish to make any submissions regarding the jurisdiction point. In the circumstances of this matter, I am satisfied that there has been undue delay in the transmission of mail· in the ordinary course of post and that Mr Brooke has lodged his appeal as soon as possible after receipt of that delayed post. Having found that the Court had jurisdiction, the merits of the appeal were then heard. Mr Brooke's Notice of Appeal states that his estimate of the unimproved value is $56,000. His main ground of appeal is that he purchased the property for $100,000 and that at that time there were improvements on the land which he conservatively valued at $43,000. He also points out that the properties in the area will never be supplied with essential services such as water, sewerage, garbage collection or electricity. He states that the absence of these services make the land attractive to only a small section of the general population and therefore drastically reduces its value. He also emphasises the isolation of the area and the absence of facilities, and states that the area north of the Daintree River is subject to differential rating imposed by the Douglas Shire Council, which is nearly twice that for the rest of the Shire. -- 3 of 8 -- 4 Between the date of valuation and the date of hearing of this matter, the Lands Legislation Amendment Act 1992 has had the effect of substituting the position of Chief Executive, Department of Lands, for the former statutory office of Valuer-General. Therefore, it is appropriate that the Chief Executive be the respondent in this matter in place of the former Valuer-General. The subject land is situated off the Cape Tribulation Road, approximately 42 kilometres north of Mossman and approximately 26 kilometres north-east of the town of Daintree. There is a good bitumen road to the Daintree River ferry and then approximately 18 kilometres of mixed bitumen and gravel road from the ferry to the subject land. A bitumen section of road passes along the western boundary of the subject land. No services are available in the area except telephone. The land is zoned "General Farming" under the town planning scheme for the Shire of Douglas and is used for residential purposes. The Departmental report tendered on behalf of the Chief Executive describes the land as comprising a moderately sloping rural allotment with a benched house site, which was once cleared but is now so heavily under regrowth to be virtually in its uncleared state. A small semi-permanent creek is located near the road boundary. The land has been valued as a rural residential site. Mr Brooke said that the land had been subdivided from a farm which had been used to run cattle about 10 years ago. It had regrown in that time. Prior to his purchase, it had been on the market for 2½ years, originally for $160,000, then for $110,000 and he finally purchased it on the 21st October 1991 for $100,000. Mr Brooke said that when the value of improvements was deducted, the unimproved -- 4 of 8 -- 5 value of the land came to $56,000. Mr Brooke said that it was a shock to him recently to hear the Premier say there would be no electricity north of the Daintree River and that the residents there would have to continue to rely on alternative energy sources. Mr Brooke said that he already has an alternative source of energy with solar panels, batteries and a generator which he has to run five hours a day. He said that solar panels in that area were only partially successful. Mr Brooke explained that the Council levied a high differential rate of in that area, as he thought it •was not encouraging people to live north of the Daintree River. There is no work in the area, no overnight accommodation, although tourists were bussed from Cairns and Port Douglas daily. He was also concerned about the possibility that the Government would buy back or resume land in the area and he said that the uncertainty keeps prices depressed. Mr Brooke explained that the only access across the Daintree River was by the Daintree Ferry at a cost of $25 per annum. The alternative was to pay $5 per trip. Mr Brooke said that he makes pottery and supplies galleries. He had wanted to establish in an area where there were tourists, but has been disappointed. He now thinks there is little prospect of tourists going to the area because there will be no electricity. Mr Brooke gave ev idence of a number of properties that were for sale at prices varying from $45,000 to $95,000, all of which were negotiable. He said that these properties were indicative of the market in the area and all demonstrated that the unimproved value of $85,000 applied to the subject land was excessive. -- 5 of 8 -- 6 Mr Brooke knows Sale No. 1 used by the Department as a basis of valuation. He does not agree with the description, saying it is better rain forest than the subject land and is inferior only because of its size. He considers that the application of $36,000 to this land supports his argument for a valuation of $56,000 on the subject land. Mr I S Quirk-Anderson, registered valuer employed by the Department of Lands, gave evidence on behalf of the Chief Executive. Mr Quirk-Anderson explained that he was not the original valuer in this case, but had taken the matter over after that valuer had been transferred. He looked at the subject land and the sales and had satisfied himself that the valuation was correct. Mr Quirk-Anderson said that the property had been valued by reference to four sales in the area, three of which were supporting sales and one, his Sale No. 3, was the basic sale. This sale is situated in Camelot Close, Cape Tribulation, and contains an area of 3.825 hectares. This property sold in July 1991 for $55,000 in an unimproved state and a valuation of $53,000 has been applied in the 1992 valuation. This property is situated near Cape Tribulation to the north of the subject land at the end of a cul-de-sac. It is a wedge-shaped allotment with narrow frontage, gravel road access and is uncleared natural rainforest. He considers that it is inferior to the subject property as it is smaller. Mr Quirk-Anderson's other three sales are as follows: Sale No. 1, situated in Forest Creek Road, Forest Creek, just north of the Daintree River. This property has an area of 3.832 hectares and sold in September 1991 for $46,000 in an unimproved state and a valuation of $36,000 has been applied in the 1992 valuation. -- 6 of 8 -- 7 Sale No. 2, also situated in Camelot Close, Cape Tribulation, contains an area of 3.648 hectares and sold in July 1991 for $75,000 in an unimproved state and a valuation of $58,000 has been applied in the 1992 valuation. This property is very similar to sale No. 3. Sale No. 4 is situated in Zena Close, Cape Tribulation, and it has an area of 5.04 hectares. This property sold in October 1991 for $82,500 in an unimproved state and a valuation of $53,000 was applied in the 1992 valuation. This property is also a wedge-shaped allotment with narrow gravel road frontage, moderate to steeply sloping natural rainforest and is considered to be inferior to the subject land. Mr Quirk-Anderson said that the subject land is considered to be superior to all the sales because it is larger and has wider bitumen main road frontage, although it is inferior as country. There was not a great deal of evidence of the value of allotments of the size of the subject land and the four sales were the only ones that had taken place in the area. However, he felt that a purchaser would pay more for larger sites than for smaller rural residential sites. The 1993 annual valuation for the Shire of Douglas was on display at Mossman at the date of hearing and Mr Brooke said that the latest valuation of the subject land is $77,000, compared with the 1992 valuation at $85,000. Mr Quirk- Anderson explained that the market was stronger in 1992 and that it has slipped since then. He said that he has not endeavoured to analyse the October 1991 sale of the subject land, because there were unimproved sales available and they were better evidence of unimproved value: The provisions of Section 21 of the Valuation of Land Act cast the burden of -- 7 of 8 -- 8 proof on the appellant. Mr Brooke has not been able to produce evidence of sales in the area which demonstrate that the applied value of $85,000 as at 31st March, 1992 is incorrect. He has given evidence of present asking prices, but there is evidence from Mr Quirk-Anderson that the market has slipped since 1992. Therefore, the only evidence I have available to me of the market as at the relevant date is that provided by Mr Quirk-Anderson. Although he has not any evidence of sales of the size and in the immediate locality of the subject land, he has drawn conclusions from smaller sales situated in somewhat different localities. Although I have some doubts about the applied value of $85,000, I have no evidence to indicate just what the valuation should be. Mr Brooke has not been able to assist with any direct evidence as to the valuation apart from the asking prices he has submitted and his own analysis of his purchase of the subject land. In relation to this sale, Mr Brooke could have got a bargain, as it had been offered for sale at a higher price for some time. Therefore, any analysis of this sale may not demonstrate the unimproved market value of the subject land. In the circumstances, the appellant has not discharged the burden of proving that the valuation of the Chief Executive is incorrect. Therefore, the appeal is dismissed and the valuation of the Chief Executive is affirmed at the sum of $85,000. J J TRICKETT MEMBER OF THE LAND COURT -- 8 of 8 --