Behm (deceased) & Ors v The Valuer-General [1991] QLC 158

,... _..... Re: Appeals against determinations of Valuer-General - Ipswich City Council. AV91-156/158. Estate Robert Behm deceased and Others V. The Valuer-General DECISION (Hearing at Ipswich) LAND COURT, BRISBANE 1st November, 1991 There are three appeals before the Court by the owners of three parcels of land situated in Behrns Road, Amberley, about 6/7 kilometres from the City of Ipswich. The lands are used for rural residential purposes. For the purposes of the Annual Valuation of the Area as at 31st March, 1990, the Valuer- General has valued the lots for that use as follows: AV91-156 - Behm (deed} - 24.69 ha - $52,000 - Appellant's value $42,000. AV91-157 - Pascoe - 12.72 ha - $34,500 - Appellants' value $27,500. AV91-158 - Denman - 10 ha - $37,500 - Appellants' value $30,000. Mr E.C. Denman, a registered valuer, lodged the objections against the valuations in each case and he instituted the appeals in each case. It is his submission that the value of these lots should remain frozen at the values determined for the lands for the purposes of the previous Annual Valuation of 31st March, 1989. He concedes that in the relevant period the value of rural residential sites would have increased across the board by an average of about 30 percent. [1991] QLC 158 -- 1 of 4 -- ( 2 Mr J.R. Lechel, registered valuer, who wrote the valuation on behalf of the Valuer- General said that in these cases the applied values represent an increase of the order of 25 percent. The three subject parcels are somewhat unique from a valuation point of view. They are each zoned "Non-Urban" - effective from 28th October, 1989. The former zoning was "Rural" under which the erection of a dwelling house was an as of right use. Under the present zoning the erection of a dwelling house is a consent use. In the case of Mr Denman, his current use of the lot for rural residential purposes has been registered with the Council as an existing lawful non- conforming use. In each case the lots have been valued by Mr Lochel under s.12(1A) - that is, on the assumption that the land may continue to be used for the purposes for which it is used. This in itself gives rise to no particular problem. However, there is more to it than that. The three parcels are within an area earmarked (my expression) for expansion of the Amberley Air Base. In fact they are the only three parcels remaining in a pocket formed by Warrill Creek on the north, east and south with the Air Base on the west. Access from the lots is by a dedicated road bordered by the Air Base on the west and land acquired by the Commonwealth (for extension of the Air Base) between that road and Warrill Creek. The policy of acquisition as explained by Mr Denman is one of opportunity buying as lands are put up for sale. The most recent purchase involved a parcel of 1O hectares adjoining the lot of Mr Denman at 174 Beams Road. This purchase was made in February 1991 for $115,000. For the purposes of the Annual Valuation of the Area as at 31st March, 1989, the value which should be applied to the lot of Mr Denman was -- 2 of 4 -- ( 3 tested in Court and the matters which he argued before this Court were then argued. In addition to the cloud of potential acquisition hanging over the heads of the owners, there was evidence from Mr Denman that as purchases occur the area winds down as opposed to areas (for example) Walloon where rural residential development is becoming more ,intense. In that case (decision being given on 28th August, 1990 - AV90-52) the Court applied a value midway between the former value and the value applied by the Valuer-General - a 5 percent increase as opposed to a 1O percent increase. The Act requires that an assumption be made under s.12(1A). Were the potentiality of acquisition not there, it could be argued that the lots should be valued in sums comparable with the agreed across-the-board increase in value. Further, it might well be argued that when the lands are acquired, the owners can expect to receive market value for the lands as is prescribed by law. Nevertheless what has to be determined is the effect this potentiality in the land has on the mind of a hypothetical prudent purchaser at the relevant date. In Stubberfield v. The Valuer-General (1988/89) 12 Q.L.C.R. 328 (F.C.), part of an owner's land had been shown on a new town plan as zoned "Public Open Space". At pp. 344/5 of the judgment of Connolly J. he said - II It follows that so long as the appellants are content to use their land for the purpose of a single dwelling and to have the advantage of s.11(1)(vii), the fact which is capable of depressing the value of their land is the likelihoo~ be it close or remote, of resumption by the Shire Council with attendant loss of privacy and amenity. That likelihood became public knowledge before the relevant date and was therefore capable of being a factor reducing value. Whether it did or not is a question of fact. The appellants are entitled to an order which will enable them to agitate that question. 11 On the matter being remitted to the Land Appeal Court and after that Court hearing -- 3 of 4 -- ( 4 evidence, it reduced the value of the land from $80,000 to $70,000 which is roughly a reduction of 10 percent (V88-106 - 27th August, 1990). In the circumstances of the subject cases, I cannot accept the submissions of Mr Denman that values should remain frozen. In the previous case the Court held that an increase was warranted but not to the extent applied by the Valuer-General. In this instance Mr Lochel has applied values which reflect an increase of about 25 percent or about 83 percent of the accepted across-the-board increase in value of rural residential sites. Having regard to the principles which I have stated and the evidence, I find that such is a reasonable allowance for the issues which may be of concern to a potential purchaser based on the assumption which must be made under s.12(1A). This type of approach may be followed by the parties in future valuations. Accordingly, the appeals are dismissed and the determinations of the Valuer-General affirmed. D. M. White Member of the Land Court -- 4 of 4 --