Cotterill v The Valuer-General [1990] QLC 245

Re: An appeal against a determination of the Valuer-General, Brisbane City - AV90-107. N,R. & BJ, Cotterill v. The Valuer-General DE C ISI O N lAND COURT, BRISBANE. 5th December, 1990. Mr and Mrs Cotterill have appealed against the Valuer-General's determination of the unimproved value of land situated at No.93 Warriewood Street, Chandler, described as Lot 37 on RP 92862, Parish of Tingalpa, containing an area of 1.957 hectares. The Valuer-General's assessment is $125,000 and the appellants contend for a value of $100,000. The grounds of appeal are that the subject valuation increased by a greater percentage than the majority of others in the area; properties with larger area (and capable of subdivision) have lesser valuations; the subject valuation is $35,000 greater than an adjacent property; the subject property adjoins premises used for commercial purposes; the rise in the annual valuation was much greater than any applied under the previous system and the $50,000 increase in the subject valuation is unreasonable. Mrs B.J. Cotterill appeared in support of the appeal. She has carried out research into the valuations applied by the Valuer-General to other properties in Warriewood Street and is of the opinion that the appeal property has been disadvantaged, particularly in comparison with the previous valuation on Lot 39, one property removed to the west; Lot 1 adjoining to the east; then several lots in the street with larger area, but lesser valuations. The appellants are particularly concerned with the usage of the property immediately to the west (Lot 38) as registered dog kennels together with, they say, additional activities of a commercial nature. Reference was [1990] QLC 245 -- 1 of 5 -- 2 made to a previous Land Court decision of the learned Member as he then was and now President, Mr Barry, handed down on 1st October, 1987 (Reference V87-143) when the question of adjacency to the dog kennels was examined and discussed. The unimproved value of the subject property was at that time reduced to $78,000 being the same level as had been applied to Lot 36 adjoining to the east and of which Lot 1 now forms part. It emerged that on objection to the subsequent annual valuation, the Valuer-General whilst not altering the general relativity or levels of value, did reduce the valuation of the subject to $75,000. The next annual valuation, subject of this appeal, then increased to $125,000. A reading of Mr Barry's decision confirms that matters raised in this appeal, such as the topography of the land and comparison with other properties in the street, were also discussed at the previous hearing. Evidence for the Valuer-General was, as in the previous hearing, given by Mr LG. Savage, registered valuer. He explained that he had specifically examined the question of relativity of previous valuations in Warriewood Street and confirmed that the immediately previous relativity of the subject had been altered. He had found that the valuation of the subject had, subsequent to the Land Court decision, been further reduced by the Valuer-General on grounds of adjacency to the kennels. In his opinion that amendment disturbed the relativity set by the Land Court decision and was as it appears in his evidence, for that reason, incorrect. The valuation now appealed against in his opinion restores reasonable relativity. Mr Savage had gone to some trouble to investigate the situation with the adjoining kennels. He had established that an extension of the development had, in fact, been carried out since the previous hearing. His evidence was that while an additional kennel building had been constructed, the additional building had not increased the registered number of dogs able to be accommodated. The new "state of the art" building was further from residential -- 2 of 5 -- 3 buildings and should lessen the noise detriment. He explained that the dogs were previously accommodated in an older building close to residential buildings and this older building was now used as a sick bay. He agreed that a wire mesh enclosure had also been constructed around the new building but was unable to confirm or deny Mrs Cotterill's assertions that this enclosure was used (at least sometimes) for exercising of dogs either attended or unattended. He advised that he had again discussed the question of kennel nuisance with one of the owners of Lot 39, a matter which was referred to in Mr Barry's decision, and again was told that these neighbours are not concerned by the presence of the kennels. He agreed that the open enclosures were closer to the house on the subject property than the house of the neighbours to whom he had spoken. He was aware from his enquiries that Mrs Cotterill had made various complaints to the Authorities regarding the kennel operation but was not aware if there had been any breach of ordinances, and believed the complex met the standards required by both Brisbane City Council and the Noise Abatement Authority. He had inspected the kennels in connection with this appeal but was not aware of other commercial activities (an air-conditioning business) said by the appellants to be operated from the site. He explained that in his valuation of those larger properties which had subdivisional potential but used for the purpose of a single dwelling house, he was required by Section ll(l)(vii) of the Valuation of Land Act of 1944 (as amended) to ignore subdivisional potential. He valued the various properties referred to by Mrs Cotterill based on sales evidence then his opinion of fair relativity with consideration to matters including size, available building area and elevation, homesite access etc. He was quite comfortable with the relativity he had established. The level of value had increased significantly, but he was of the opinion that the desirability of this locality for rural residential sites had also increased significantly as vacant sites were becoming scarcer. -- 3 of 5 -- 4 Now Mrs Cotterill is of the opinion that because the Court had established, relative to the 30th June, 1985 date of valuation, a similar level of value between this and the then Lot 36 (2.127 hectares) that relativity was now disturbed even though Lot 36 had subsequently been subdivided into Lots 1 and 2. She refers to Lot 1 ( of 1 hectare) as now being valued by the Valuer-General at $90,000. She does not accept that the larger area of the subject (1.957 hectares) warrants the difference in value of $35,000. Her somewhat theoretical reasoning suggests to her that a value of $100,000 affords better relativity. She says that because the subject property is cut in two by a watercourse, the back half is not always accessible and the extra land on the subject is of little benefit. I am unable to agree with her reasoning in this aspect of the appeal. Mrs Cotterill provides no evidence to support her contention. The previous decision of the Land Court is now of no assistance due to the significant difference in size of the parcels. Mrs Cotterill says that Lot 39 is a better block than the subject but its increase was $48,000 in comparison to the $50,000 of the subject. Except for the change in relativity, it is not the previous valuation that needs to be considered here but the valuation as at 31st March, 1989. Lot 39 at that date, on the evidence, is valued at $128,000 as opposed to the $125,000 of the subject. It seems to me that the dominant question in this matter is the effect of the adjoining dog kennels. The use of the adjacent property is quite obviously causing stress to the appellants. The question is - what is the deleterious effect, if any, of the dog kennel and other commercial use of the adjoining property on the unimproved value of the subject? Neither the Valuer-General nor the appellants are able to provide evidence to show the effect, but the Valuer-General has recognised a detriment in the past, although to varying degrees. The actual dog-kennel property (lot 38) is valued at $133,000 then Lot 36 $128,000 and the subject $125,000. When the previous Land Court decision was given the resultant relativity between Lot 36 and the subject was $80,000 -- 4 of 5 -- 5 and $78,000. At the subsequent valuation the Valuer-General saw fit to establish a relativity of $80,000 and $75,000 respectively (Mr Savage says however without due consideration to the Land Court decision). The evidence before me is that since the Land Court decision, the kennel operation has not expanded in terms of dog numbers, but the building development has increased and nature of use of buildings has changed. Mr Savage is of the opinion that the change should be for the better but the appellants not unnaturally, do not agree. They say the physical presence of the development has intensified and a fenced exercise enclosure causes further detriment than before. It is the opinion of the appellants that this added detriment is of greater significance to the subject than to Lot 35. I see no reason for slavish adherence to the relativity set by the previous Land Court decision when circumstances have changed. For a start, Mr Savage's evidence is that the area has become far more desirable as a rural residential address than previously. Accepting this and what appears to be a reasonable consequence, that any detriment to that desirability will be also accentuated, together with a visually, if not acoustically, more intense adjacent detrimental development, I have decided to re- establish the immediately previous relativity, not on the basis of Lot 39 and the subject, but between the immediately adjoining Lot 38 and the subject. The appeal is allowed, the determination of the Valuer-General is set aside and the unimproved value determined at $120,000. (R.E. Wenck) Member of the Land Court. -- 5 of 5 --