Benfer v Chief Executive, Department of Lands [1993] QLC 137

ILIBRARY C OPl I Re: Appeal against Annual Valuation Valuation of Land Act 1944 Shire of Redland (AV93-492) LAND COURT BRISBANE 29TH OCTOBER 1993 Albert John Benfer and Alison Lesle y Benfer v. Chief Executive , De partment of Lands DECISION Mr and Mrs Benfer are the owners of land described as Lot 412 on Registered Plan S311948, Parish of Redland, containing an area of 34.2 hectares. Under the provisions of Section 168 of the Valuation of Land Act 1944, the Valuer- General assessed the unimproved value of the subject land as at 31st March, 1992 at $260,000. Mr and Mrs Benfer objected to this valuation and by letter dated 28th June, 1993, they were advised that their objection had been disallowed and the valuation remained unaltered at $260,000. The owners then appealed to the Land Court against this decision on their objection advising that their estimate of the unimproved value is $180,000. The grounds of appeal may be summarised as follows: 1. There are no comparable sales; 2 The property is too small to be a viable poultry farming enterprise; 3 The land is too steep to be profitable for any other form of agriculture; 4. The privacy of the property is diminished by the use of an easement through the middle of it by Telecom and other service authorities, [1993] QLC 137 -- 1 of 12 -- 2 private communication firms and the public, both authorised and trespassers, which causes inconvenience and disruption to our way of life. Between the date of valuation and the date of hearing of this matter, the Lands Legislation Amendment Act 1992 had the effect of substituting the position of Chief Executive, Department of Lands, for the former statutory position 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 at Seaview Road, Mt Cotton, approximately 2 kilometres west of the Mt Cotton Primary School and approximately 16 kilometres from Cleveland. Seaview Road consists of a bitumen sealed carriageway with formed earth table drains and provides good access to the land. Electricity and telephone services are available. According to the Departmental report tendered on behalf of the Chief Executive, the land comprises an elevated top ridge in the western portion of the property which falls to the east and west with a cross-fall to the south. It enjoys panoramic views to the east and north of Moreton Bay, South Passage Bar and the bay islands. To the west it has views of Beenleigh, Mt Tamborine and distant ranges, including Mt Warning. The land is zoned "Rural Water Supply Catchment" under the provisions of the town planning scheme for the Shire of Redland. Two dwellings are constructed on the land while the balance is used for the limited grazing of cattle and deer. It has been valued as a rural residential homesite. The report goes on to say: -- 2 of 12 -- 3 "An access easement traverses the property to a communications site located on the subject's western boundary. The easement consists of a bitumen sealed road and has a locked gate within the property boundary. The easement provides all-weather access to the most elevated part of the property." Mr AJ Benfer, one of the owners, gave evidence and tendered a written statement setting out the history of the appellants' ownership of the land and the details of the acquisition and use of the easement. The owners purchased the property in 1972 as both a residence and an existing poultry farm. They operated the poultry farm until 1979 when two-thirds of one of the sheds was dismantled by the Commonwealth Department of Construction to make way for an access to the top of Mt Cotton on the adjoining land, in order to erect a tower to provide a microwave telecommunication link to the Redland district and surrounding area. The farm then became non-viable and they ceased to use it as a poultry farm in 1980 or 1981. In 1977 the Commonwealth Department of Construction advised them that their property had been selected as the means of access to the top of Mt Cotton, because of the existence of an established road which had been constructed over many years by the owners and their predecessors in title. After 12 months of negotiation they were given an ultimatum that they either agreed to an easement through their land or one would be resumed. Ultimately an amount of $1,300 was paid as compensation which they think was for the part of the road which they had sealed. An agreement was signed by both parties, allowing either party use of the existing road and the part which was to be upgraded. It also provided for use by whoever either party nominates with the mutual consent of the other party. The -- 3 of 12 -- 4 owners' copy of the agreement was not forwarded to them and attempts to obtain one from Telecom have been unsuccessful. Mr Benfer was therefore uncertain just what rights the agreement gave Telecom or its nominees. While the agreement was between the owners and Telecom, at no time have they been approached to give formal approval to others to use the road. However, it is used by many other bodies including State and Federal Police, SEQEB, Fire and Ambulance services, radio hams, Phillips Communications, Bell Page, the Commonwealth Communication Authority, plus the many inquisitive members of the public who insist on driving through, despite clear indication that the land is private land. Attempts have been made to secure the property by locking the entrance gate. Until recently, there were 10 locks interlocked together, each lock indicating an interested party. For the first 10 years from the construction of the Telecom tower, the property was either not locked or the owners' locks were bypassed, locking them out of their own property. On many occasions they were forced to use bolt cutters to gain access. On other occasions the other users' locks were bypassed and the owners had to lend their key or had to open the gate for another interested party, often losing keys in the process. On other occasions when the gate was locked, the owners suffered abuse from sightseers who would demand access and only threats to call the police would persuade them to leave. The owners have had barbecue plates and axes stolen from their private picnic area on their own land. They have also caught people taking ferns and plants from the bush on the property. Three years ago, Telecom dug a 1.5 metre trench through the entire -- 4 of 12 -- 5 property to install fibre optic conduits to the communication site. This took approximately six months of disruption to their entrance and house yard. The owners estimate that there would be an average of 25 visits per week to the various sites on the top of Mt Cotton, all of which use their road. During periods of construction, the workers use the road to go to the shop for morning tea and lunch and on some days it is possible to count 30 to 40 visits per day. During the storm season, many of the service authorities visit the site during the night to repair storm damaged equipment. When there is an electricity failure, a generator automatically starts up on the Telecom site, often running for many hours during the night. In addition, on many occasions the owners have to intercept visitors, usually late at night, who turn out to be sightseers wishing to get to the top of the mountain. The owners have been threatened and abused for not allowing access to such people, who are often intoxicated. With the recent practice of the service authorities calling for tenders, it is not uncommon for the owners to see six tenderers called to quote for a small job. They expect this will increase the traffic through the property in the future. Mr Benfer explained that the actual summit of Mt Cotton is about 500 metres away from the Telecom site on a neighbour's property. Telecom had originally wanted to purchase a site on that land and gain access by means of the road on the subject property. With the threat of resumption hanging over both properties, the neighbour eventually agreed to sell a small site on his land and the Senters agreed to the easement access. In addition to the Telecom tower, there are a number of other towers on the Telecom site, as well as four buildings, three owned by Telecom and one by SEQEB, plus the generator room and tank. There is a -- 5 of 12 -- 6 track leading on from the Telecom site to the top of Mt Cotton where the police have a tower in addition to some others. Access to all these facilities is by means of the road through the subject property. Mr Benfer said that most of the visitors have some sort of business at one or other of the towers, but the biggest concern arises from people to whom the owners have not expressly given any approval. They constantly leave gates open, allowing the owners' cattle to mix with those of the neighbours. There are also the abusive trespassers late at night, with the potential for serious incidents. Mr Benfer said that the gates are no longer locked because of the constant harassment about the locks. They have recently installed automatic closing gates worked by a push-button arrangement and so far have had only one trespasser follow a vehicle in. Mr Benfer gave details of each of the authorities and people who gain access by means of the easement road. Many of these do ask permission in some sort of way, but the problem is that the houses are not always attended and when the owners see vehicles on the property, they are uncertain whether they are on official business or are trespassers. Mr Benfer said that the second house was built this year, within 50 metres of the Telecom tower. When asked why he built so close to the tower, he said that this site was near the top of the hill and gives the best view without destroying the bushland. The owners had used this spot as a picnic area for many years and had always intended to build there. Mr Benfer said that the ground of appeal in relation to the easement and its use was by far the most important, as it is the disturbance and disruption to the family's life which is of greatest concern. With regard to the other grounds of -- 6 of 12 -- 7 appeal, Mr Benfer argued strongly that the sales used by the Department were not comparable, because he thought that the majority of the land in the sales could be cultivated and utilised for grazing or small crops or pineapples. They also have good sites for the construction of dams and for irrigation and have complete privacy. Each of the sales has areas that can be cultivated with machinery, while the subject land is too steep for the use of machinery and it has no rural potential other than for running the small herd of deer and cattle. Mr Benfer said that there are no dam sites on the subject land, the only water supply being by means of water tanks and a small spring in the north-eastern part of the property which is used for stock water, for toilets and garden purposes. Although it is on the lower part of the property, it is pumped to the top house. Mr GW Knight, registered valuer employed by the Department of Lands, gave evidence on behalf of the Chief Executive. In arriving at his unimproved value of $260,000 for the subject land, Mr Knight had regard to the sales of properties in the Sheldon area. Mr Knight's sale No 1 is situated in Avalon Road, Sheldon, and comprises an area of 20.03 hectares, zoned "Rural Water Supply Catchment", which sold in August 1991 for $210,000. This property was unimproved and Mr Knight applied $210,000 in the 1992 valuation. Access is by approximately 850 metres of rough earth track which traverses a powerline easement. The land consists of an easy forest ridge which falls to gullies along the property's eastern and western boundaries. The ridge top has a cross-fall to the north. Mr Knight considers that the sale property is inferior to the subject because it is smaller and has inferior land type, aspect and access. It has no views except of surrounding bushland. -- 7 of 12 -- 8 Mr Knight's sale No. 2 is of a property situated at the north-east corner of the junction of Avalon and Schoeck Roads, comprising an area of 3. 703 hectares, zoned "Rural Water Supply Catchment", which sold in February 1992 for $145,000. This property was also unimproved and Mr Knight applied a valuation of $145,000 in the 1992 valuation. The land is sloping and comprises gravelly forest ridge tops along three boundaries, falling to a gully which forms within the property and flows in a northerly direction, exiting the property through its north-east corner. Mr Knight considers that the sale property is inferior to the subject property because it is smaller and inferior in land type and aspect. It has no views except of the surrounding bushland. Mr Knight's sale No. 3 is of a property situated in West Mt Cotton Road, Sheldon, with an area of 1.776 hectares, zoned "Rural Non-Urban", which sold in March 1992 for $114,000. Like the other two sales, this property was unimproved and Mr Knight applied a valuation of $110,000 in the 1992 valuation. The land has an easy fall from West Mt Cotton Road to a gully which traverses the rear portion of the property. Mr Knight regards this property as inferior to the subject property, because it is smaller and has inferior land type and aspect and like the other sales, has no views except of the surrounding bushland. These sales are all smaller than the subject land and Mr Knight comments that the only sales of large sites with views have been to developers, which renders them unsuitable as a basis for the valuation of the subject property. He expresses the opinion that the subject land is vastly superior to the sales, not only in its aspect but also in its land type, as it consists of good forest with pockets of scrub, while the sales are predominantly poor forest. He explained that he has taken into -- 8 of 12 -- .. 9 account the existence and the use of the easement. However, he points out that the easement is a roadway which provides all-weather bitumen sealed access to the best and most elevated site on the property and to other potential building sites which have equally good views. Mr Knight said the three sales reflect the market for rural homesites of different size. Most of their attributes are similar as they are all forest and have similar aspects with rural outlooks but no views. Sale No. 1 suffers from a substantial disability of access over 850 metres of very rough forest track along a powerline easement. By way of contrast, Mr Knight tendered photographs of the panoramic views available from the subject land. There is no doubt that the view from the new house site is spectacular, while the view from the old house on the lower part of the property is of the bay and South Passage, but not being as elevated, does not have the panorama of those from the higher site. There is a difference in elevation between the two sites of approximately 75 metres. Mr Knight said that his researches of the market in the Redland Shire indicates that properties with good views and good elevation are commanding a premium of up to 100 per cent. By way of example, he referred to sales of 6,000 sq. metre park residential sites in Dicameron Street at Thornlands, which have bitumen road access and water, but no sewerage. He pointed out that sites on the high side of the road, with good views of the bay and islands, sold for between $220,000 and $230,000 in late 1991. On the western side of the street, properties with purely rural outlook and no bay views, sold in March 1992 for $120,000 to $122,000. The only difference, Mr Knight said, was the view that was available from the higher sites. He admitted, however, that this estate was in a more closely -- 9 of 12 -- 10 settled area, on the fringe of residential development. Mr Knight ventured the opinion that if the sale price of $210,000 for sale No. 1 was adjusted for the difference in access and a premium added for the views, he would have valued the subject land at around $350,000. However, he had applied $260,000 after making allowance for the difference in size, topography, access, views and the considerable disabilities caused by the traffic on the easement. If it had not been for those easement disabilities, he would have valued the subject land at $325,000. As it was, he made a 20 per cent allowance for the easement traffic. When asked whether the subject land was the best site in the area, he gave instances of 10 hectare sites on Serpentine Creek Road which fronted the bay, which brought prices of between $600,000 and $1,000,000. He said that the purchasers of such property were particularly seeking seclusion. The evidence discloses that the subject land is a site with remarkably panoramic views of Moreton Bay and the islands and also of the hinterland. In this respect it is almost unique, as the only higher land is the neighbouring property on which is the peak of Mt Cotton. It was therefore very difficult for Mr Knight to find a basis of valuation which is credible. Not having any sales of directly comparable properties, Mr Knight has made a careful assessment of the sales of rural homesites in the Sheldon area, which is in fairly close proximity to the subject land. Although these properties differ from the subject property, his reasoning of the allowances for the differences between sale No. 1 and the subject property and his rationalisation of the premium paid for views, appear to me to be soundly based. If it was not for the difficulties suffered by the subject land, I would have no -- 10 of 12 -- 11 hesitation in accepting Mr Knight's assessment of the unimproved value of $325,000. However, he has made a 20 per cent allowance because of the disruption and disturbance of the easement traffic, both authorised and unauthorised. The question is whether that is sufficient allowance in the circumstances. In my view, potential purchasers of land such as the subject site are seeking seclusion as well as the panoramic views. If it was otherwise, they would seek properties such as those described by Mr. Knight in Dicameron Street, where 6,000 sq. metre properties are in reasonably close proximity to neighbours and also have ready access to the services of both Thornlands and Cleveland. However, in the case of the subject land, the owners' dream of seclusion and quiet enjoyment of the property is ruined and has been replaced by something of a nightmare of almost constant disturbance. There is no doubt that the views are still there and that is the reason that the owners built their home so close to the Telecom tower. However, the other equally important attribute of seclusion is no longer available to this property. The prospect is that this invasion of their privacy will continue into the foreseeable future and perhaps intensify. After considering the evidence, I have come to the conclusion that an allowance of 30 per cent for the problems created by the easement traffic would be more appropriate in the circumstances. It could be suggested that the Senters should have located their house at another site more remote from both the easement and the Telecom tower. However, there is little doubt that the house site affords the best views on the property and it is the owners' right to position their -- 11 of 12 -- 12 house exactly where they wish, regardless of what easement rights other authorities have. Therefore, I think that a 30 per cent allowance is reasonable in the circumstances. I accept Mr Knight's view that if it was not for the easement, an unimproved value of $325,000 would be appropriate in this case. After making a 30 per cent allowance, this would bring the unimproved value to $227,000. Accordingly, the Appeal is allowed, the valuation of the Chief Executive is set aside and the unimproved value is determined at the sum of $227,000. J J TRICKETT MEMBER OF THE LAND COURT -- 12 of 12 --