Denman & Anor v The Valuer-General [1990] QLC 288

Re: Appeal against determination of Valuer-General - Ipswich City Council. AV90-52. Elwyn C. Denman and Nola E. Denman v. The Valuer-General DECISION (Hearing at Ipswich) LAND COURT, BRISBANE 28th August, 1990 This appeal is against the determination of the Valuer-General of the unimproved value of the appellants' rural residential block in the sum of $32,000 for the purposes of the Annual Valuation of the area of the City of Ipswich as at 31st March, 1989. The appellants are contending to an unimproved value of $29,000 which is the sum of the previous annual valuation. The appeal is on grounds that the area in which the subject land is situated is isolated from elsewhere by Commonwealth property forming the Amberley Royal Australian Air Force Base and its sound buffer area. For this reason, the appellants contend that the previous valuation should stand for the purposes of this annual valuation. Evidence was given on behalf of the appellants by Mr Denman. He is a registered valuer and an alderman of Ipswich City Council. The valuation was written on behalf of the Valuer-General by Mr J.R. Lochel, registered valuer. The subject land which is described as Lot 1 on RP 159805, parish of Jeebropilly, contains an area of 10 hectares and is situated in Behrns Road and within the immediate environs of the Air Force Base, more particularly within the sound buffer area of the Base as designated by the Australian Government. The [1990] QLC 288 -- 1 of 4 -- 2 property has narrow bitumen access via Behrns Road and has electricity available. Town water and sewerage are not available. Under the Town Plan for the area which was gazetted in 1976, the land was zoned "Rural" under which a dwelling could be constructed on the land as of right. Under the Town Plan which was gazetted on 28th October, 1989, the land was zoned "Non Urban" under which the erection of a dwelling is a consent use. Mr Denman informed the Court that he and Mrs Denman purchased the land in 1984 and built their home in 1985, that the land was at that time and has remained caught up in a policy under which development was not encouraged by the Australian Government as it intended in the long term to acquire such land (land within the designated sound buffer area) as a noise buffer to the Air Base. Mr Denman said that up until about 18 months ago the practice of the Council was to permit the erection of dwellings on such land notwithstanding objection to such development by the Australian Government and that his development was one such case. Since the inception of the firmer policy, Council informs intending purchasers, who search the offices of the Council, of the Australian Government's interest in the area and they are advised to contact the Government. Under the provisions of the Town Plan gazetted in October, 1989, the intentions of the Australian Government can be given greater effect by the Council than would appear to have pertained at the time Mr and Mrs Denman built their home. Since the inception of the policy, a number of blocks have been acquired by the Australian Government on a private treaty basis. The result is that there has been a depressing effect on values in the area and that with some acquisitions, lots which were once improved have become vacant and those that were vacant have remained vacant. According to Mr Denman there remain only four improved lots in his particular area. He says further that the Council is considering whether maintenance of services in -- 2 of 4 -- 3 the area is worthwhile when it can be seen that in the long term such assets will become redundant. Mr Denman said that but for the policy of the Australian Government consent would likely be given to the construction of a home on the subject land under the zoning effective as from October, 1989. The gist of all this lies in the question as to how the subject land should be valued. Mr Lochel has valued the land under the provisions of s. 12 (lA); that is, that for the purposes of the valuation it can be assumed that the subject land may continue to be used for the purposes for which it is used. In other words, he sees the combination of the policy and the attitude of the Council as putting the subject land in a position where the use made of it is akin to an existing lawful non-conforming use. This line of reasoning is accepted by Mr Denman and it appears to be correct in my opinion. It follows that the site must be valued as a site upon which a home may be constructed but situated in an area which will wind down as time goes by. The sales upon which Mr Loche! relies are of rural residential sites but outside the impact of the policy. The sales are situated in the areas of Churchill, Karrabin and between the Brisbane Valley Highway and the Warrego Highway. The sales generally reflect values for these types of blocks of around $30,000 plus. The sales in the areas of Churchill and Karrabin are not free of aircraft noise. I find that as bases the sales are more preferable than sales introduced in evidence by Mr Denman within the area of the subject land which were made either to the Commonwealth in which event the purchase price is in the nature of a compensation payment or to private persons, in which event they appear to reflect the impact of the policy. In the evidence of comparability, Mr Denman says that he enjoys the site. Mr Lochel says that there are rural residential purchasers who prefer isolation. On the assumptions which must be made, I am of the opinion that the prudent purchaser -- 3 of 4 -- 4 would see the value of the block as being relevant to the market for comparable blocks where the policy would not apply, but I have some doubts whether the isolation would carry the weight he would give it otherwise, particularly if he forms the opinion that services may not be properly maintained. It seems to me that any general rise of rural residential sites in unrestricted areas would flow over to the subject land on the assumption which must be made but probably not to the same extent. I have therefore considered that some increase in the previous valuation is warranted but not to the extent applied. The appeal is allowed, the determination of the Valuer-General is set aside and the unimproved value of the subject land is determined in the sum of Thirty thousand dollars ($30,000). (Signed) D.M. White Acting President of the Land Court -- 4 of 4 --