Della & Anor v The Valuer-General [1990] QLC 248 (1990) 13 QLCR 155

Re: Appeal against determination of the Valuer-General - Mulgrave Shire Council. AV90-583. John Della and Chantal Westecott v. The Valuer-General DE C ISION IANDCOURT, BRISBANE. 23rd November, 1990. This appeal is against the determination of the Valuer-General of the unimproved value of Lot 15 on RP 710830, Parish of Smithfield, in the sum of $36,500 for the purposes of the annual valuation of the area as at 31st March, 1989. The appeal is made on grounds of relativity; it being the case for the appellants that by comparison with Lot 22 on Plan 709626 which adjoins and with Lot 22 on Plan 709125 which is situated on the corner of Machan Street and Marshall Street, the valuation of the subject land should be $33,000. Evidence was given on behalf of the appellants by Ms Westecott and she detailed the reasons why the estimate of $33,000 was advanced as the correct value of the subject land. It is not in dispute that the subject land which is situated at 62 Marshall Street Machans Beach and being Lot 15 on RP 710830 containing an area of 848 square metres is a regular shaped rectangular lot being near street level and possessing a slightly lower area along the rear boundary. The land is zoned residential B and is used for single unit residential purposes. The lot abutting the rear boundary of the subject lot fronts the esplanade. The evidence is that that lot and other lots fronting the esplanade comprise a sand dune of higher elevation than that of the subject land which in the course of time with the build up of sand has been the cause of the depression existing at the rear of the subject land and generally in respect of other lots facing [1990] QLC 248 -- 1 of 4 -- 2 Marshall Street. This lower area of the subject land has been filled by the appellants at a cost estimated at $1,000. It is submitted by the appellants that the added value comprised in these works (estimated at $1,000) should be accounted for in the valuation and it forms part of the comparison made with the lots nominated for the purpose. Lot 22 which adjoins has an area of 533 square metres and is valued at $31,500. This lot is also of regular rectangular shape and is comparable in all respects of the subject land save for size; although it is submitted by Ms Westecott that the lot does not suffer the same water problems as that experienced by the subject land prior to it being filled. She accordingly submitted that the advantage the subject lot possessed in size was offset to some degree by the need for fill. The other basis which is a corner site of rectangular shape with the longer boundary to Machan Street and the shorter boundary to Marshall Street is valued at $34,500. This lot is zoned local shopping but is developed and used for single unit residential purposes. The value applied to the lot is as a single unit residential site without regard being had to any potential in the land for a higher and better use (Sll(l)(vii)). When the element of zoning is taken from the evidence of Ms Westecott her case is that the lot has advantages over the subject lot in being a level corner site requiring no fill and possessing a view of the sea down Machan Street. This lot has an area of 540 square metres. The home constructed on the site has been constructed so as to take advantage of the view to the sea. Although smaller in area the lot is considered to be superior to the subject lot by reason of the elements of view, corner position and in contour (requiring no fill). Evidence of value was given on behalf of the Valuer-General by the Mr D.P. Hyde, Registered Valuer in the employ in the Department of Lands. He was not the valuer responsible for striking the value appealed against. He agrees with the value as determined. In essence his submission is that the value of the subject lot is correct in relationship to the sales evidence and is in correct relativity with Lot 22 adjoining and -- 2 of 4 -- 3 with other lots in the area, but not with the basic corner site - not because the subject valuation is wrong but because the value of the basic site is out of relativity with the sale market. In this respect he agreed with the evidence of Ms Westecott. He agrees that the site has a view of the sea and with other factors including corner position and contour is, in his opinion, a superior site to the subject lot. On market evidence at the date of valuation he would value Lot 22 at $42,500. He supports his opinion with the following evidence. Lot 17 on RP 71985 containing 599 square metres is on the corner of Machan Street and Christensen Street and opposite a school. This lot sold in June 1988 and is valued at $33,500 being a figure below the selling price. The sale lot is well back from the frontage and is clearly inferior to the basic corner site which is valued at $34,500 and when location and size is considered is inferior to the subject site. He then referred to examples of the application of the market to lots more comparable in size to the subject land. Lot 47 in Phillip Street (to the west of the subject lot) containing an area of 840 square metres of regular shape is valued at $38,000. Mr Hyde says that in recognising that some allowance should be made for fill in the valuation of the subject land the value of the subject land at $36,500 is in correct relativity with Lot 47 at $38,000. In Machan Street Lot 7 on RP 711497 which contains an area of 873 square metres of irregular shape is valued at $34,500. This lot is considered to be inferior to the subject land in shape which has necessitated the home being constructed nearer the frontage than would normally occur. Here again he says that the relativity is correct. Coming then to Lot 22 which adjoins, he submits that the block is comparable in all respects with the subject land except for size - a difference of 315 square metres which in his opinion justifies the difference in values. The law to be applied in circumstances of this kind has been stated by the Land Appeal Court in re R. & M.M. Barnwell -v- The Valuer-General, 19/12/1989 (not reported). At pages 3/4 of the Judgment the Court said: -- 3 of 4 -- 4 " We are conscious that it is desirable that valuations made for the purposes of the V ~uation of Land Act of comparable lands should bear proper relativity, one to the other, if the valuations are soundly based. It is, however, untenable to adopt a value for one parcel on relativity with another which has no sound basis. In Ladies' Hosiery and Underwear Ltd. v. West Middlesex Assessment Committee (1932) 2KB. 679; (1932)All E.R. Rep. 427 (CA.), Scrntton LJ. (at p. 686 of (1932) 2 KB.) said:- One would have thought that this evidence destroyed the ratepayer's objection, but he said: 'No, I will show you that seven other hereditaments in the borough are assessed at sums lower than the rents which their hypothetical tenant would pay, and I require that I also should be assessed at a sum lower than the hypothetical tenant would pay. I do this because the essence of rating is fairness and unifonnity, and I prefer my assessment to be inaccurate but unifonn, rather than it should be accurate but out of hannony with my neighbours. It is tme that I can, if my facts are right, secure unifonnity by co"ecting the inaccuracy of my neighbour's assessments, on objection to those assessments, and can get those assessments made unifonn with my co"ect assessment. But I do not want this; I want to indulge my passion for unifonnity be securing unifonn inaccuracy, though that unifonnity makes my co"ect assessment inco"ect, but the inaccuracy is to my pecuniary advantage.' I think this view is wrong. It is a vital principle of the law of rating that each hereditament should be independently assessed. " and at p.688 - ,, The appellants here, however, say that besides the principle of independent valuation there is another vital principle - that as between different classes of hereditaments and as between different hereditaments in the same class the valuation should be fair and equal. I agree, but, in my view, there is a third important qualification, that the assessing authority should not sacrifice co"ectness to ensure unifonnity, but, if possible, obtain unifonnity by co"ecting inaccuracies rather than by making an inaccurate assessment in order to secure unifonn e"or. " This third principle was referred to without disapproval by the Court of Appeal in R.v. Hastings Justices, ex parte Pevensey Levels Internal Drainage Board (1962) 1 All E.R. 278 and applied in Vaughan v. Auckland City Council (1973) 2 N.Z.L.R. 269 (S.C.). We adopt the third principle stated by Scrutton L.J. " The principle when applied to the evidence in this case must put the comparison with the corner basic site out of consideration - that valuation in my opinion cannot be supported by evidence of the market. In other respects the evidence points to a finding that the value applied to the subject land is correct. Accordingly the appeal is dismissed and the determination of the Valuer-General affirmed. (D.M. White) Member of the Land Court -- 4 of 4 --