Crebert v The Valuer-General [1993] QLC 64

LI ARY COPY_I Re: Determination of Unimproved Value - City of Brisbane - Division of Stephens. AV91-824 R G Crebert V. The Valuer-General DECISION LAND COURT, BRISBANE. 14th May, 1993. This is an appeal against the determination by the Valuer-General of an unimproved value of $324,000 for a riverfront "Residential A" zoned parcel of land situated at 55 King Arthur Terrace, Tennyson. The land is more particularly described at Lot 35 on RP 54173, parish of Yeerongpilly and contains an area of 903 m 2 • The relevant date for the determination of the unimproved value is 31st March, 1990 and the appellant contends within the Notice of Appeal for an unimproved value of $220,000. At the outset of the hearing of the matter, a preliminary point was raised by the Court with Counsel for the parties. This was that, in view of the exchanged evidence which was proposed to be called by the appellant, including that from a Registered Valuer and from a quantity surveyor, some consideration should be given to the grounds of appeal which, prima facie, did not appear to be so widely drawn as to be capable of being benefited from the type of valuation evidence proposed to be led. The grounds of appeal are:- [1993] QLC 64 -- 1 of 7 -- - Page 2 - "1 . Valuation of $360,000 is excessive compared with other valuations in the street, especially with those on the southern side (the valuation of $360,000 was subsequently reduced to $324,000 by the respondent under the provisions of section 21A of the Valuation of Land Act of 1944). 2. The amenity on both sides of the street is equal, but the valuations are inequitable. 3. General amenities are no better, and in some instances worse than in other suburbs. 4. My family and I are long term residents not property developers or speculators. 5. Approximately one-third of my land is "frozen" under the Town Plan, unstable, inaccessible and flood prone. 6. A 4,000% increase in valuation in 14 years is unrealistic. 7. Current depressed property market and fallen land values are not reflected in the valuation. 8. The refusal of the Valuer-General to grant me an interview contravenes Departmental policy." Now the relevant part of section 16J(3) of the Valuation of Land Act of 1944 reads:- "An appeal shall be instituted by filing a notice of appeal in the Land Court registry. Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner." Counsel agreed that the Court should proceed to hear the case on merit and that submissions on the point raised by the Court would be made at the end of the hearing. That appellants in cases of this nature are bound by the grounds of appeal is not in doubt. Authorities for the proposition include the judgment of the High Court in Re: Appeals against determinations of The Valuer-General - Brisbane Ci ty -- 2 of 7 -- - Page 3 - Council v. The Valuer-General - Shire of Esk - Somerset Dam lands - (1978) 5 QLCR 283 where at p. 304, after quoting the same appeal provisions in section 21 (3) of the Valuation of Land Act of 1944, the High Court said:- "The effect of these provisions is that an owner on appeal to the Land Appeal Court has the burden of proving the grounds of appeal". Again, in the judgment of the Land Appeal Court in Re: Appeal by s A G Pratt against the determination of the Valuer-General - Shire of Kilcoy - (1981-2) 8 QLCR 145 at p 147 that Court held:- "It is important for both parties to an appeal under the Valuation of Land Act to this Court to be ever mindful that, while the matter does come before the Land Appeal Court by way of re= hearing, the appeal is limited to the grounds set forth in the original notice of appeal". Further, in Re: G. Franklin and Others v. The Valuer-General - Shire of Johnstone (1978) 5 QLCR 181 at p. 184 the Court said:- "The provisions of the Valuation of Land Act as to appeal procedure are restricted in their operation, more especially to an appellant who has made his appeal on a narrow and particular ground rather than on a broad general ground such as "the valuation is excessive and contrary to law". The language used by the legislature is mandatory and binding not only on the parties but also on this Court and the Land Court ....... . In simple terms, in the conduct of his appeal before us, an appellant remains limited to the grounds of his original notice of appeal to the Land Court ............ The effect of these provisions is that an owner on appeal to the Land Appeal Court has burden of proving the grounds of his appeal... .... " I should now briefly outline the nature of the evidence called by the appellant. It must have become clear to her, as a result of the hearing by this Court of earlier cases involving the determination of unimproved value of other riverfront parcels in King Arthur Terrace, Tennyson, that the respondent Valuer- General was almost certain to rely, as a basis for his valuation, upon the analysis of the sale of a property at 53 King Arthur Terrace (adjoining the subject land) from Hamax Properties Pty Ltd to Con-Law Pty Ltd on 5th January, 1989 for $365,000. This parcel is more particularly described as Lot 33 on RP 54173, parish of Yeerongpilly containing an area of 918 m 2 • The premise made by Mrs Crebert was -- 3 of 7 -- - Page 4 - indeed correct. Valuation evidence called by the Valuer-General from registered Departmental valuer Ian Geoffrey Savage was to the effect that this sale was analysed by him to show an unimproved value of $354,000. Upon the land at sale date was a dwelling house which was given an added value of $10,000 by Mr Savage in his sale analysis. This was so in view of the intended use of it by the purchasing company ie. as a basis or foundation for the reconstruction of a much larger residence with the building plans involving the demolition of and/or the alteration of both the internal and external walls of the building. Evidence called by the appellant, including that from herself and a Mrs Ann Garms, who is director of Con-Law Pty Ltd, was to the effect that the dwelling house on Lot 33 on RP 54173 had at sale date, a considerably higher value than $10,000. Simon William Lovegrove, a quantity surveyor in the employ of Rawlinsons (Old) Pty Ltd, estimates the depreciated value of the house to have been $94,000 at sale date, and practicing registered valuer John Harold Frew, confirmed that the value added by the dwelling house at sale date was in the order of $94,000. Accordingly Mr Frew analysed the sale to show an unimproved value of $271,000 compared with the 31st March, 1990 relevant date valuation of the sale land made by the then Valuer-General of $325,000. Prima facie, then, if the Court accepts the quantity surveying evidence of Mr Lovegrove and the valuation evidence of Mr Frew, then it is clear that it must follow that Mr Savage's valuation of the subject land and the Con-Law land is quite excessive. It also may well be that his valuations of other appealed riverfront sites in King Arthur Terrace are excessive. Evidence was led by the respondent from Departmental registered valuer Ian Geoffrey Savage whose report is in the hands of the parties for reference. For the -- 4 of 7 -- - Page 5 - reasons I am about to outline, I do not find it necessary to cover Mr Savage's evidence in detail in this decision. Counsel for the respondent Valuer-General urges the Court to dismiss the appea1, and to find that the onus of proof of the grounds of appeal which rests on the appellant has not been discharged. Alternatively, counsel for the appellant, although recognising that there are numerous authorities which support the view that appellants are bound to the grounds of appeal, urges the Court to accede to and consider the valuation evidence on the basis that the Land Court is a Court which is governed in its procedure and in its decisions by equity, good conscience, and the substantial merits of the case, without regard to technicalities or legal forms or the practice of other Courts - vide section 41 (5)(a) of the Land Act of 1962. He further submitted that the Court should not fall back on technicalities which developed during the hearing of a matter unless it finds itself in the position to so · do, and that it would be in the best interests of justice and fairness for the Court to have regard to the valuation evidence notwithstanding the nature of the grounds of appeal. Now the meaning of equity and good conscience in the context of the Anti- Discrimination Act of 1977 was the subject of a brief comment by the New South Wales Court of Appeal in a recent case - Re: Qantas Airways Pty Ltd v. Gubbins and Another - (1992) 28 NSWLR 26 where at p. 31, in a joint decision by Mr Justices Gleeson CJ and Handley JA that Court held:- "In our view the duty to act according to equity and good conscience, in the context of this Act, did not free the tribunal from its duty to apply the general law in declaring the issues raised by the defence of release by deed." Now the general law within the context of this case is enshrined within the provisions of the Valuation of Land Act of 1944 as previously outlined in this -- 5 of 7 -- - Page 6 - decision. I have carefully considered the grounds of appeal, the evidence led by the appellant from the various witnesses called, including herself, and have reluctantly come to the conclusion that the onus of proof resting upon her has not been discharged by that evidence. If there had been reliance placed upon the sale of 53 King Arthur Terrace within the grounds of appeal, or indeed if there was a general claim that the valuation was excessive in relation to sale evidence, or even if there was a ground that the valuation was excessive and contrary to law, then it is clear that the evidence would not only be admissible but would have been of assistance. I say reluctantly because the evidence by its nature was certainly persuasive, and sufficiently so as to have led me to a finding that Mr Savage's analysis of the sale was defective in so far as his allowance of $10,000 as the added value of the house on Lot 33 on RP 54173, was inadequate. A further point of reluctance is that I do not like coming to a conclusion which denies what would otherwise be the right of an appellant to pursue an appeal but the Court too is bound by law in this respect. I turn now to each ground of appeal. Ground 1 - No evidence was led by the appellant as to the comparison between the valuation of the subject land and that of other properties in King Arthur Terrace. The only evidence I have as to comparisons between the valuations of riverfront parcels was in the form of a relativity map produced by Mr Savage (Exhibit 16). Ground 2 - Again, no evidence is before the Court to support this ground. Ground 3 - No evidence is before the Court to support this ground. Ground 4 - This is hardly a relevant ground of appeal. Ground 5 - There is evidence of a Brisbane City Council requirement for a building setback of 20 metres from the riverfront, and there is evidence as to the sloping nature of the -- 6 of 7 -- - Page 7 - land on the riverfront, but there is no real dispute between the appellant and the respondent in regard to these matters, or at lease no dispute which could have any affect on the Valuation of the Land. Ground 6 - This Court has often said that reference to percentage increases in valuations over time is not a worthwhile ground of appeal. What has to be determined is the unimproved of land as at a specific date, and this is best tested in relation to sales evidence. Further there is no evidence as to the basis of the valuation of the land some 14 years ago. Counsel for the appellant urged the Court to find that the sales evidence is admissible in support of this ground of appeal, but I have decided this to not be so as the appellant stresses in the ground that it is the increase in the valuation which she considers unreasonable. Mr Frew's valuation evidence does not point to valuation increases since he does not relate to values some 14 years ago. Ground 7 - Both valuers called in the case agree that there was no fall apparent in the market for lands in King Arthur Terrace as at the relevant date for assessment here - viz 31st March, 1990. Accordingly, there is no evidence to support this ground. Ground 8 - This is not a relevant issue for this Court. I find that the onus of proof resting upon the appellant in accordance with the provisions of section 16J(3) of the Valuation of Land Act of 1944 has not been discharged. It follows then that the appeal be dismissed, and that the unimproved value of Lot 35 on RP 54173, parish of Yeerongpilly as determined by the Valuer- General in the sum of Three hundred and twenty-four ($324,000) is affirmed. (C.H. Carter) Member of the Land Court. -- 7 of 7 --