Barclay & Anor v Chief Executive, Department of Lands [1993] QLC 99

VCOPY LAND COURT, BRISBANE . 27th August, 1993. Re: Appeals against determinations of unimproved value Shire of Livingstone and City of Rockhampton (AV93-156 & 159) W M Barcla y: M & C Newton V. Chief Executive . De partment of Lands (Hearing at Rockhampton) DECISION By consent these two appeals were heard together. AV93-156 relates to land described as Lot 99 on Registered Plan 619051 Parish of Murchison, containing an area of 8004 square metres located at Green Avenue, Glenlee Estate, Parkhurst in the Shire of Livingstone, owned by Winifred M Barclay. The valuation appealed against was in the amount of $41,500 as at 31st March, 1992. AV93-159 relates to land described at Lot 1 on Registered Plan 605969 Parish of Archer, containing an area of 1108 square metres, located at No. 92 Nobbs Street, North Rockhampton in the City of Rockhampton, owned by Maurice and Charlotte Newton. The valuation appealed against was in the amount of $19,200 as at 31st March, 1993. Mr Charles G Barclay appeared as agent for the appellants. His evidence was that the appellants' estimates of value , i.e. $2000 for the Green Avenue land and $300 for the Nobbs Street were in accordance with a proper interpretation and [1993] QLC 99 -- 1 of 5 -- 2 the true meaning of the term unimproved values. He claims to be aware of the definition of "unimproved value in relation to improved land" as contained in the Valuation of Land Act 1944 (the Act) - the legislation under which the valuations appealed against, were carried out. Unimproved value in relation to improved land, is defined by the Act in section 12(1 )(b) as "the capital sum which the fee-simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bone fide seller would require, assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist: Provided that the unimproved value shall in no case be less than the sum that would be obtained by deducting the value of improvements from the improved value at the time as at which the value is required to be ascertained for the purposes of this Act: ...... .". "Improvements" means, (section 12(2)(c)) "in relation to land, improvements thereon or appertaining thereto, whether visible or invisible, and made or acquired by the owner or his predecessor in title, ... ." If I understand his submission correctly it is the contention of Mr Barclay that, with regard to residential property, at least, unimproved value may not be increased from the time that it is "improved" and purchased for residential use. He tendered a copy of the "Notification of Change of Ownership" which was lodged in connection with the Green Avenue property. This notice indicated that the land -- 2 of 5 -- 3 was purchased by contract dated 12th February, 1991, the sale price being $46,000. The apportionment of sale price was set out as follows: "Unimproved Value of Land (Freehold) Subdivisional costs and improvements TOTAL: $ 2,000 $44,000 $46 .000 A statement from the developer of the land was also tendered and contained the following advice: "To Whom It May Concern, This is to certify that at the time I purchased the property now designated "Glenlee Estate", this property was a fenced cattle property." Mr Barclay sees the Green Avenue land as being "improved" from the time when the infrastructure was provided to allow its use for residential rather then grazing purposes. The land value of $2,000 is, on his understanding, a reasonable apportionment, while the balance of the purchase price represents reimbursement to the vendor for the "improvements" provided. Mr Barclay provided the Court with the history of acquisition of the Nobbs Street property by his father-in-law Mr Newton, and his reasoning for the estimate of value of that land. Prior to the commencement of the hearing the respondent's representatives had provided copies of the Lands Department Valuation reports to Mr Barclay. These reports were tendered to the Court in confirmation of a submission that the valuations had been carried out under a proper interpretation of the provisions of the Act. It was the respondent's submission that the appellants, through Mr -- 3 of 5 -- 4 Barclay, had not carried the burden of proving the grounds of appeal. It seems to me that an argument similar to that submitted by Mr Barclay may have been aired by the appellant before the Land Appeal Court in the matter P.H. Clough v. The Valuer-General (1981-82) 8 QLCR 70, where at p.72 is found the following: "Mr Clough maintains that in arriving at the unimproved value of his land he should be given due allowance for the value (calculated as at the date of valuation) of all improvements effected either by the developer as his predecessor in title or by himself, irrespective of whether or not such improvements are on the subject land or within the former boundaries of the larger parcel which the developer subdivided into residential allotments. He points out that section 12(2)(c) of the Valuation of Land Act defines improvements as being "thereon or appertaining to" land and claims that the roads made by the developer appertain to his land in the sense that they belong to his land and were necessary to give it a real property description and a separate entity. Similarly, services (electricity, water, etc.) also belong to his land. Without all these improvements and/or services his allotment, be submits, could not be used as a residential site. It could not be used for anything. It would be in effect a pastoral holding." In that matter the Court, at p.73 referred : "to the judgment of Gibbs J., as he then was, in Brisbane City Council v. The Valuer-General for the State of Queensland (1977-1978) 140 C.L.R. 41 at pp. 50-1. The learned Judge pointed out that the Valuer- General was required to make a valuation of "the unimproved value" of land and after setting out the provisions of section 12(1) and 12(2)(b) and (c) said:- "These provisions ... indicate what tests should be applied in deciding what is an improvement for the purposes of valuation. In the first place an improvement in relation to land must be 'thereon or appertaining thereto' . This means that the improvements, if not on the land, must be 'such as are in the strict legal sense 'appurtenant' to the property and incident to its ownership'. (MacDonald v. Deputy Federal Commissioner of Land Tax (N.S.W.)-(1915) 20 C.L. R. 231 at 234-5.) ..." -- 4 of 5 -- 5 The Land Appeal Court went on to say at pp 73,74: "A road, or service (sewerage, water or electricity) are not in the strict legal sense appurtenant to a parcel of land. They do not belong to it as a property right. They do not pass with it as an appendage to its ownership. In point of fact the land in the road is owned by the Crown. Similarly the wires, pipes or drains exterior to the parcel (and in some cases within the bounds of the parcel) are owned by the relevant service authority. No improvement which is not on the subject parcel or strictly appurtenant thereto can be considered an improvement for the purposes of section 12 of the Valuation of Land Act. In our view the owner of a larger parcel of land which was originally alienated by the Crown and from which the smaller subject parcel has been subdivided, may only, for the purpose of the Valuation of Land Act, be regarded as the predecessor in title to the owner of the smaller parcel in respect of that part of the original parcel now contained in the small subject parcel." I do not find Mr Barclay's interpretation of what constitutes "unimproved value", "improved value" or "value of improvement" to accord with a proper interpretation of the meanings of those therms as provided in the Act. Section 16J of the Act deals with appeals to the Land Court against valuations and places "the burden of proving any and every such ground" upon the owner. That burden is not seen to have been carried in these matters. The appeals are dismissed and the valuations appealed against are affirmed. RE WENCK MEMBER OF THE LAND COURT -- 5 of 5 --