Atkinson & Anor v The Valuer-General [1992] QLC 284

Re: Appeal against Annual Valuation of the Valuer-General City of Brisbane AV91-275 William F Atkinson and Ida L Atkinson V The Valuer-General DECISION LAND COURT, BRISBANE. 15 May, 1992. The appellants, WF and IL Atkinson, are the owners of Lots 11 and 23 on RP 80408 in Parish of Toombul, County of Stanley. Together the lots comprise a block of 723 square metres at 29 Jackson Street, Clayfield. In the annual valuation of all lands in the area as at 31 March 1990, the Valuer-General assessed the unimproved value of the subject land at $69,000. The appellants estimate that the unimproved value of the land at that date was $64,000. They have appealed to the Land Court against the Valuer-General's valuation. Annexed to their Notice of Appeal is a detailed statement of the appellants' grounds of appeal. That document contains various assertions of fact which were supported by evidence given orally by Mr Atkinson (who represented himself and his wife in the proceedings) and by documents prepared by him. Some confirmation of that material was given in the evidence of Mr JT Houghton, a registered valuer employed by the Department of Lands. The crux of the appellants' case is that the value of the subject land is diminished as a consequence of both the noise from passing trains on nearby railway lines and the use by railway employees of a level area between the eastern boundary of the subject land and the railway lines. The appellants seek a reduction [1992] QLC 284 -- 1 of 10 -- 2 in the amount of unimproved capital value assessed by the Valuer-General in line with the proportionate decrease granted on objection to the assessment of valuation in 1986. The subject land The subject land has a frontage on its western side to Jackson Street. It is at or slightly above road level and rises very gently to the rear with a slight south to north cross fall. The land is zoned Residential "A" and is used as a single unit dwelling site. The eastern or rear boundary of the land adjoins a level area of land across which pass three railway tracks comprising the Northern Rail line. The valuer's report prepared by Mr Houghton (Exhibit 5) makes the following remarks: Subject has sandy soil composition with good drainage and a westerly aspect ... Subject is situated in a good quality residential locality. Due to its location adjacent to the rail line, subject suffers from some noise detriment from rail traffic and maintenance activity. • In his evidence, Mr Atkinson sought, in effect, to qualify those remarks. He stated that the soil is shallow, overlying red clay which appears at the surface in some places and is a handicap to gardening or anything of an agricultural nature. The locality of the property, he noted, is literally and figuratively, on the "other side of the tracks" from Clayfield and is still associated with the working class origins of the area formerly known as Eagle Junction. That association, he submits, detracts from the unimproved value of the land. In other words, this area should not be valued on the same basis as other, more prestigious parts of Clayfield. Mr Houghton suggested, however, that the locality of the subject land has become more sought after in recent years. -- 2 of 10 -- 3 The bulk of the evidence related to the extent to which the subject land is affected by noise, dust and other inconveniences attributable to its proximity to railway lands. The railway lines running along a north-easterly/south westerly corridor to the east of the subject land carry freight and passenger traffic. In recent years a third track has been added on the side nearest to the subject land with the result that the noise of rail traffic is closer to the land than previously. Electrification of the track to Rockhampton has resulted in faster and heavier, though slightly more quiet, trains in the locality of the subject land. The noise and vibration through the house has increased. It can become acute on occasions. It is particularly noticeable when heavy freight trains pass at speed causing the wheels to "squeal", "scream" or "shriek" on the curve of the track. The sketch plan (Exhibit 3) and aerial photograph (Exhibit 6) show the curve to be reasonably proximate to the subject land. Railway traffic passes the subject land from early morning until very late at night. The inbound freight trains, which usually pass in the morning, often comprise empty wagons. The heavily loaded outbound trains usually travel during the afternoon and night. They cause vibrations on the subject land, which can be felt in the house and which result in windows rattling. The railway line from Toombul to Eagle Junction runs generally parallel to Jackson Street. However, the elevation of the line relative to the adjoining properties differs considerably. At the end of Jackson Street near Toombul (north- east of the subject land), the line is considerably higher than the adjoining Jackson Street properties. At the top of Jackson Street near Junction Road (south-west of the subject land), the line is lower than adjoining properties. The extent and locations of embankments and the locations of pylons and drains relative to the subject land and neighbouring blocks are shown on the sketch plan (Exhibit 3). -- 3 of 10 -- 4 The appellants contend that the noise from trains is greater at their property than at the properties in 7 - 25 Jackson Street (on higher ground towards Junction Road), which properties may obtain some benefit from an embankment which rises to some 3 metres or more in height near to Junction Road and which provides a buffer to noise from the railway line below. Mr Houghton, however, submits that the properties which are closer to Junction Road are affected more than the subject land by the squeals of wheels on the curve in the line, the reverberation of railway noise from the Junction Road bridge over the railway line and the noise of traffic on Junction Road. In other words, the different sources and locations of noise together produce an equally deleterious effect to properties along that part of Jackson Road from the subject land to Junction Road. Mr Atkinson volunteered the opinion that the noise from the railway line running past properties to the north-east of the subject land may be exacerbated to some degree because the line is at a higher level than those properties. The levels of the railway lines land and neighbouring land are the same where the railway lines pass the subject property (and adjacent blocks). The railway lines land is flat and is not impeded by embankments, drains or other installations. It is almost opposite an access gate from Thomas Street (on the eastern side of the railway lines). Vehicles are driven through the gate and across the tracks, the gaps between which have been filled for this purpose. They are parked with other plant and equipment next to the rear boundary of the subject land. This area of railway land is used as an assembly and holding area for men, materials, trucks, tractors, bulldozers and other equipment whenever any track maintenance is in progress. Any ballast, spoil or any other debris which has to be removed is dumped for temporary storage within a few feet of the Atkinsons' back -- 4 of 10 -- 5 fence. Despite what Mr Atkinson described as "care and consideration by the Railways Department", the appellants are affected from time to time by the dust and noise created by these activities. Mr Atkinson estimated that there are spates of activity on this area of railway land every 2 or 3 months and that the activity continues for up to 3 weeks at a time. The appellants submit that, although neighbours on either side of their property (at 27 and 33 Jackson Street) would be affected by activities on the flat area of railway land, the impact would be diminished the further properties are away from the subject land. The valuation of the subject land Mr Houghton stated that the valuation of the subject land had been made on the basis that it was one large parcel and having regard to three sales of lightly improved land in the district. Details of the sales are set out in a schedule attached to the valuer's report (Exhibit 5). The main features of the sale blocks are summarised as follows: (a) 14 Norman Parade, Clayfield. The block comprises two lots with a combined area of 809 square metres. It was sold in February 1990 for $172,000. Having regard to improvements by way of clearing and fencing, the Valuer- General determined the applicable value to be $135,000, or $67,500 for each 16 perch lot. The land is situated a few hundred metres from the subject land on a road which carries "considerably more" vehicular traffic than Jackson Street. The land is located in what Mr Houghton described as a "good quality residential locality of substantial homes" which is far "superior" to the locality of the subject land. Each lot is smaller in area and frontage than the subject land, but they have higher elevation. The lots are well below street level at their frontage and require retaining at the road frontage. They -- 5 of 10 -- 6 fall to the rear where they abut the northern rail line along their rear boundary. A railway reserve immediately behind the land (like that adjoining the subject land) is used for car parking (including some all day parking) and for maintenance purposes (including the dumping of, soil and gravel and the use of equipment such as backhoes). It appears that the lots are some 20 metres from railway lines, separated by the reserve land for a greater distance than is the subject land from the railway lines. The embankment behind the lots is approximately 3 metres above the railway lines. The size and elevation of the railway reserve land suggests that railway generated noise levels at the lots are likely to be lower than those at the subject land. Those railway lines, however, carry more traffic than the lines past the subject land as trains from the Pinkenba line also travel past the lots. (b) 22 Howie Street, Clayfield (Eagle Junction). The block has an area of 607 square metres. It was sold in February 1989 (more than a year before the relevant valuation date) for $90,000. Having regard to improvements by way of clearing, fencing, landscaping and some retaining, the Valuer-General determined the applicable value to be $72,000. The land is above road level, with a gentle fall to the front, good drainage and a northerly aspect. It is a few hundred metres from the subject land. Although it is smaller in size and frontage than the subject land, Mr Houghton considered it to be superior to the subject land as it does not have detriment related to nearby railway activity. (c) 7 Lewis Street, Clayfield (Eagle Junction). The block has an area of 405 square metres. It was sold in August 1989 for $61,000. Having regard to improvements by way of clearing, fencing and land treatments, the Valuer- General determined the applicable value to be $54,000. The land is at road level at its frontage and falls to a gully at the rear. Some cut to fill has been -- 6 of 10 -- 7 carried out on it. The land was partially flooded in 1974. It is smaller than the subject land and Mr Houghton considered it to be inferior to the subject land due to its size, frontage, drainage and elevation. The appellants have calculated their nominated unimproved value by reference to the valuation of the subject land given following objection to the Valuer- General in 1986. The Valuer-General's original valuation of $33,500 was reduced to $30,000. A comparison of the rate of increase in the valuation of the subject land (by reference to each of the 1986 figures) with the rate of increase in the valuation of neighbouring properties (Nos. 25, 27, 33 and 35 Jackson Street) show that: (a) from 1986 to 1988 the rise in the valuation was: (1) in the case of the neighbouring properties, in the range of 45.28 - 60.71%; and (2) in the case of the subject land 61.19% (compared with the original 1986 valuation) or 80.00% (compared with the 1986 valuation following objection to the Valuer-General); and (b) from 1988 to 1990 the rise in valuation was: (1) in the case of the neighbouring properties, in the range of 26.47 - 27.27%; and (2) in the case of the subject land, 27.77%. -- 7 of 10 -- 8 Those figures and others set out in Exhibit 4 show that, in terms of its relativity to those neighbouring properties, the discount for the detriment which was apparently accepted by the Valuer-General in 1986 was lost in 1988 and not regained in 1990. The appellants have calculated their estimate of the unimproved value of the land by determining the percentage increase from the original 1986 valuation to the 1988 valuation, applying that percentage increase to the revised (lower) 1986 figure, then adding.to the resulting figure an amount representing the percentage increase between the 1988 and 1990 valuations. The final figure shown on Exhibit 4 ($63,635 rounded up to $64,000) was, the appellants recognised, calculated inaccurately. A proper calculation on their approach gives a figure of $61,785, which could be rounded up to $62,000. Mr Houghton criticises this approach on a number of grounds. First, he submits that it is not proper to estimate a valuation at a valuation date merely by applying some mathematical formula to previous valuations. The valuations at each date are to be made by reference to actual sales of comparable properties within a relevant period, not by some arbitrarily applied percentage. Second, he submits that the figures used by the appellants to make the comparison with the values of the subject land are not appropriate because the nominated neighbouring blocks are not comparable with it. They are significantly smaller in area and the market for blocks of that size may move, from year to year, at a different rate from the market for blocks the size of the subject land. Mr Atkinson added, in his oral evidence, that land at 15 Jackson Street has a comparable area to the subject land and has also been assessed by the Valuer- General at $69,000. Mr Houghton's general assessment was that the higher -- 8 of 10 -- . . . 9 properties in Jackson Street nearer to Junction Road (such as 15 Jackson Street) would normally attract much higher valuations because of their elevation and bigger frontages. The disabilities of noise from rail and road traffic, however, counteract those advantages. I accept that, generally speaking, the Valuer-General has taken the proper approach in making the annual valuation of the subject land. The only issue is whether sufficient deduction was made for disabilities peculiar to that land. As noted earlier, the valuer's report (Exhibit 5) notes that the subject land "suffers from some noise detriment from rail traffic and maintenance activity". In his oral evidence, Mr Houghton defended the valuation by reference to the sales described in Exhibit 5. He noted, particularly with respect to the application of sales 2 and 3, that some allowance had been made for the detriment which Mr Atkinson suffers because the subject land is adjacent to the railway line. He also referred, in general terms, to allowance being made for "his rail problem" In my view the appellants have established that the subject land is affected not only by noise from the railway lines (which noise must also affect the row of Jackson Street properties about which evidence was given) but also by detriment from various activities on the flat area of railway land abutting the eastern edge of the subject land. That detriment may affect, to some extent, the two properties adjoining the subject land, but it seems to particularly affect that land. The evidence shows that, although the Valuer-General's valuation was prepared taking account of the effects of noise, insufficient regard may have been had to the detriment peculiar to the subject land. The table which Mr Atkinson prepared (Exhibit 4) provides some support for that finding. The table, whilst not determinative of the result, should not be dismissed as a mere mathematical exercise that establishes nothing. It provides some guidance to relativities previously recognised by the Valuer- General. The result which it is used to support receives further support from the valuation given to the land at 15 Jackson Street. -- 9 of 10 -- 10 The appropriate unimproved value of the subject land at the relevant date is $66,000. The appeal is upheld. The valuation of the Valuer-General is set aside and the unimproved value of the subject land is determined at $66,000. GJ Neate Member of the Land Court -- 10 of 10 --