Gosden v Valuer-General[2015] QLC 45

LAND COURT OF QUEENSLAND

Background

1. [1]
   This is the decision in respect of two appeals against a statutory valuation issued pursuant to the provisions of the Land Valuation Act 2010 (LVA).  The two appeals were given file numbers LVA666-12 and LVA722-12. 
2. [2]
   Both lots of land are located with frontage to an unnamed road off the Macalister Wilkie Creek Road at Macalister, a small township approximately 25 km north west of Dalby. 
3. [3]
   In appeal LVA666-12 the land is described as Lots 84 to 96 on M606, Country of Lytton, Parish of Macalister which land is held under a term lease 211021. 
4. [4]
   The lease subject to which that aggregation of land is held is for Commercial / Business purposes and commenced on 8 August 1998 for a term of twenty years. 
5. [5]
   Those Lots 84 to 96 have a combined area of 1.3156 ha. 
6. [6]
   The land the subject of LVA722-12 is described as Lot 97 on M606, County of Lytton, Parish of Macalister.
7. [7]
   Lot 97 is freehold land and it has an area of 1,012 m². 
8. [8]
   It was not disputed that access to each of the properties is gained via an unformed road which crosses black soil country so that it would become impassable in wet weather. 
9. [9]
   Both of the parcels of land are capable of being serviced by electricity and telephone and both parcels are near level black soil country lightly timbered with scattered trees and on one of them some derelict buildings exist.
10. [10]
    Both lots are zoned ‘Small Town’ under the planning scheme for the former Shire of Wambo which came into effect on 22 April 2005.
11. [11]
    Both parcels of land are now located within the local government area administered by the Western Downs Regional Council.  That is as a consequence of the amalgamation of a number of smaller regional local governments. 
12. [12]
    In respect of each parcel of land the valuation was carried out at a valuation date of 1 October 2011 effective from 30 June 2012. 
13. [13]
    In respect of the 13 leasehold lots the subject of LVA666-12 at a valuation of $55,000, an objection to that valuation was lodged but was disallowed so that the valuation for which the respondent Valuer-General contends is $55,000. 
14. [14]
    In respect of LVA722-12 the Valuer-General ascribed a valuation to the freehold lot of $13,200 and that valuation was objected to but the valuation objection was disallowed and the valuation contended for remains unaltered at $13,200.
15. [15]
    In each case the reason for the decision disallowing the objection was said to be “when compared to similar properties the delegate decided that no change in the valuation should be made.” 
16. [16]
    Mr and Mrs Gosden whom I shall, with no disrespect, refer to simply as the Gosdens in the course of this decision, appealed pursuant to the Land Valuation Act 2010 against those determinations.
17. [17]
    In the notice of appeal filed in each case the Gosdens identify the following grounds of appeal:

“This block was originally purchased because it came with the lease of neighbouring blocks.  It has virtually no use by itself because of location, size and lack of access or services.  Traffic, noise and dust and inconvenience, on highway and railway line, is increasing with time making residential use and even commercial use less desirable.  Traffic speed is 80kph not 60 or 50.  Residential use in Macalister is not to be recommended because of proximity to highway – trucks and cars at speed and trains.  After 20 years of coal mining, coal seam gas, power station construction and operations and pipelines the coal train loader down the road (dust Problems) there has been nil benefits for villages like Macalister (imaginary or real).  The bare house blocks purchased were for quick resale profit by speculators and none of which has been realized.  Two houses sold after many years on the market because they appeared cheap.  Residents in one lasted a few months but couldn’t handle the conditions any longer and left (lots 62 – 64).  Bachelor chap in the other one (81 & 99) sold in Caboolture and bought here (because it seemed cheap) and there should be job opportunities which, or course, is not the case and is now stuck and trying to save hard earned money to shift the house and start again.

When the lease was originally negotiated 13 years ago on these blocks, it was on a commercial basis with all lots considered as one for that purpose.  I have looked at valuations for the village of Macalister but find them very confusing and possibly incorrect.  There does not seem to be another commercial/business lease to compare to.

All blocks on the eastern side of town have highway, side road and or council road access.  The western side has none of the above.  There are 2 drains causing inconvenience and lack of land use.  Because of township and highway situation, these low lying blocks are very wet and inundated after heavy rain.  Main Roads very clearly states no highway access and local council made it very clear no access road, sewerage, curbing & channelling or water supply would be constructed or maintained.  Highway blocks can only be accessed through the front blocks.  This is essentially a holding paddock for farm machinery and cattle in the bush with few other uses.

I compared land values for Bowenville, Warra, Brigalow and Dulacca which are in higher demand because of access, bitumen frontages and town water and proximity to coal seam gas major developments and therefore should have a higher value.  Investment in earthwork and infrastructure in this small outpost offers virtually nil return and certainly no benefits when it comes to resale.”

18. [18]
    Before the hearing I carried out an inspection of the subject properties in the presence of Mr Gosden, the Valuer-General’s lawyer Ms Johnson and Mr Doyle, a registered valuer in the employ of the respondent.  That inspection was useful to me and has assisted me in my understanding of the evidence adduced before me. 

Legislative provisions

19. [19]
    This appeal is brought pursuant to the provisions of the Land Valuation Act 2010 (LVA).
20. [20]
    The LVA made a number of significant changes to the valuation process which had previously been carried out pursuant to the provisions of the Valuation of Land Act 1944 (VLA).
21. [21]
    The LVA retains an obligation upon the Valuer-General to carry out a valuation of all properties throughout Queensland for the purpose of rating, land tax and other associated purposes. 
22. [22]
    The respondent is required to comply in its conduct with the requirements of the Land Valuation Act when undertaking various valuations required. 
23. [23]
    The LVA has brought about a change to the valuation approach insofar as under the previous Act, the Valuation of Land Act, all valuations were of unimproved value but now under the LVA valuations are broken into two categories:  non-rural land which embraces residential, commercial and industrial land on the one hand and rural land on the other. 
24. [24]
    Pursuant to the provisions of the LVA, the value of land to be valued by the respondent is in the case of non-rural land its site value which term is defined in the Act, and for rural land, its unimproved value.^[1] 
25. [25]
    The Land Valuation Act also draws a distinction between the unimproved value of improved land (Chapter 2, Part 2, Subdivision 4) and the value of unimproved land (Chapter 2, Part 2, Subdivision 5).
26. [26]
    Section 26 of the LVA provides a meaning for the “unimproved value of improved land” in the following terms: 

“26 What is the unimproved value of improved land

 (1) If land is improved, its unimproved value is its expected realisation under a bona fide sale assuming all site improvements and non-site improvements on the land had not been made.

 (2) However, the land’s unimproved value is affected by any other relevant provisions of this chapter.”

27. [27]
    Similarly, s 29 provides a meaning for the value of unimproved value in the following terms:

“29 What is the site value and unimproved value of unimproved land

If land is unimproved, both its site value and its unimproved value are its expected realisation under a bona fide sale.”

28. [28]
    The Dictionary in Schedule 2 to the LVA defines “unimproved” as:

“means land in its natural state.”

29. [29]
    In the present case the valuation exercise which must necessarily be conducted is one which calls for the determination of the unimproved value of improved land, that is assuming that all site and non-site improvements do not exist.
30. [30]
    In the Lawson decision, footnoted above, His Honour Mr Smith referred to a decision^[2] of His Honour Mr Isdale in Steers v Valuer-General^[3] where His Honour was obliged to consider the valuation of land pursuant to the LVA.
31. [31]
    His Honour Mr Isdale said:

“[8] The use of sales to provide comparisons of value is well established. In NR and PG Tow v Valuer-General (1978) 5 QLCR 378, the Land Appeal Court constituted by Stable SPJ, Mr Smith and Mr Carter said at page 381:

‘Courts of the highest authority have laid down that the best test of value is to be found in the sales of comparable properties, preferably unimproved, on the open market round about the relevant date of valuation and between prudent and willing, but not over-anxious parties.”

[9] This Court is required to follow the decisions of the Land Appeal Court and accordingly must prefer the evidence of comparable sales to the method contended for by the appellant, simply increasing a previous value by a factor of 10. Mr Steers did not explain why this particular multiplier and not some other one should be applied.”

32. [32]
    His Honour Mr Smith in Lawson then said:^[4]

“[14] I consider it remains a relevant feature under the LVA, to consider market value. As then President Trickett said in Fairfax v. Department of Natural Resources and Mines.

[11] The principles for determination of the ‘market value’ of land were established by the High Court in Spencer v The Commonwealth (1907) 5 CLR 418. In that case, the High Court found that the value of land is determined by the price that a willing but not over-anxious buyer would pay to a willing but not over-anxious seller, both of whom are aware of all the circumstances which might affect the value of the land, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding facilities, the then present demand for land and the likelihood of a rise or fall in the value of a property. (See Griffith CJ at 432 and Isaacs J at 441).

[12] It has been well established that the unimproved value of land is ascertained by reference to prices that have been paid for similar parcels of land in Waterhouse v The Valuer-General (1927) 8 LGR (NSW) 137 at 139, Pike J said that:

 ‘Land in my opinion differs in no way from any other commodity. It certainly is more difficult to ascertain the market value of it but-as with other commodities-the best way to ascertain the market value is by finding what lands comparable to the subject land were bringing in the market on the relevant date-and that is evidenced by sales.”

[15] Despite the legislative change, it is refreshing that the views expressed by the High Court in Spencer, now well over a century ago, remain just as current and relevant today as they did when they were first uttered. It is certainly my view, at least at this stage until other authorities may prove me wrong, to continue to apply the Spencer test under the LVA.”

33. [33]
    In addition to the changes with respect to the valuation process, the regime established by the Land Valuation Act also brings a change in the evidentiary onus.
34. [34]
    Under s 3 of the Valuation of Land Act the valuation made by the Valuer-General was deemed to be correct unless proved otherwise either upon objection or appeal.  That is to say there was a presumption of correctness in favour of the valuation contended for by the Valuer-General.
35. [35]
    The Land Valuation Act does not retain that evidentiary provision but rather provides at s 169(3):

“However, the appellant has the onus of proof for each of the grounds of appeal.”

36. [36]
    The only grounds of appeal which are able to be contemplated at a hearing are those grounds stated in the valuation appeal notice.^[5] 
37. [37]
    Accordingly, the Gosdens are limited to those matters which are recited in the notice of appeal.  Those matters are set out above.

The Witnesses

38. [38]
    The Gosdens did not engage a valuer to provide a valuation report.  They did however file a detailed statement in each appeal which sets out the matters upon which the Gosdens propose to rely. 
39. [39]
    Those statements became Exhibit 1 and Exhibit 3 respectively.  Save for the variations in the area and the valuation figure those grounds are expressed in identical terms for each valuation. 
40. [40]
    In respect of LVA666-12 the Gosdens contend that the valuation should be $39,000 and in respect of LVA722-12 they contend that the valuation should be $3,000. 
41. [41]
    Appeal LVA666-12 is in respect of 13 blocks of land and so that the Gosdens contend each block should be valued $3,000. 
42. [42]
    I have commented previously on the difficulties confronted by self-represented parties to an appeal against a valuation of the Valuer-General, in circumstances where they elect not to engage the services of an appropriately qualified and experienced valuer and have to confront the evidence which, inevitably, is adduced by the Valuer-General utilising the services of a qualified and experienced valuer (generally one in the employ of the Valuer-General) and a lawyer.^[6]
43. [43]
    As I observed in other cases, comments by other Members of this Court in a similar vein have been made over a long period of time.^[7]
44. [44]
    In the Nimmo case His Honour Mr Jones commented as follows:^[8]

“[16] Assessment of the unimproved value of land is an enterprise considered to be within the province of a recognised area of expertise.  Accordingly, in appeals such as these, a valuer's evidence on matters of opinion relating to his field of expertise would ordinarily be preferred to differing opinions of a lay person.  However, it is quite another thing to say that, because the valuation of land is the issue, the valuer's evidence should automatically be preferred to that of a lay person.

[17] It may be that the valuer's opinion is expressed in a manner or upon bases which are unable to be scrutinised, or otherwise lacks rational explanation.  It may also be shown that in reaching his opinion the valuer has relied on information shown to be wrong or has failed to take into account relevant and material facts.

[18] Accordingly, it is clear, in my view, that the opinions of value expressed by Mr Van Hees are not immune from challenge by the appellant.  That said, in the absence of any demonstrated error of approach or reasoning on the part of Mr Van Hees, his opinions on matters within his field of expertise ought to be preferred to the opinions of the appellant on the same matters.”

45. [45]
    That is not to say that the self-represented person’s prospects are entirely forlorn.  There are instances where self-represented parties enjoy considerable success before this Court but it must be noted that the task they set themselves is a difficult one when they are confronted by the dual difficulties of considered expert evidence and the forensic skill of lawyers representing the Valuer-General. 
46. [46]
    Mr Gosden gave evidence on behalf of himself and his wife and was cross-examined by Mrs Johnson for the respondent.
47. [47]
    The evidence of the respondent Valuer-General was given through reports prepared by Mr Steven Doyle. 
48. [48]
    Mr Doyle’s reports became Exhibit 2 and Exhibit 4 respectively. 

The Land

49. [49]
    The land relating to appeal LVA666-12 (Lots 84 to 96) is held pursuant to a lease for commercial / business purposes.  That lease commenced on 8 August 1998 for a term of 20 years and was subject to conditions. 
50. [50]
    It has an area of 1.3156 ha in total and, as referred to above, comprises 13 lots. 
51. [51]
    The land the subject of appeal LVA722-12 (Lot 97) is held in freehold and has an area of 1,012 m². 
52. [52]
    The 14 lots comprising the totality of these two appeals are in a strict sense located in two strips each of seven lots divided by a “paper” road which is unmade and not actually discernible on a site inspection. 
53. [53]
    Seven of the lots have a frontage to the Warrego Highway with a back boundary abutting the unmade indiscernible “paper” road.  The rear seven lots which includes the freehold Lot 97 have a frontage to an unmade but accessible (in dry weather) road and again a back boundary which abuts the unmade “paper” road dividing the rear seven allotments from the front seven allotments fronting the Warrego Highway. 
54. [54]
    An apt description of the features of the totality of the land is contained in each of the reports prepared by Mr Doyle and I adopt his description when he says (in respect of the leasehold land) as follows:^[9]

“11. Situation:  The property is situated on the Warrego Highway, Macalister approximately 25 kilometres radially north west of the Dalby Post Office.

  12. Access and Roads: The property has frontage to the Warrego Highway which consists of a bitumen sealed construction.  Current access is from an unformed road at the rear of the property.

 Access is considered to be difficult as the road is unformed and crosses black soil country that would become impassable in wet weather.  This difficulty has been allowed for in the valuation.

  13. Services: Electricity and telephone services are available to the property.

  14. Nature of Land: The land comprises a near level rectangular black soil lot.

  15. Zoning: The land is zoned “Small Town” under the Planning Scheme for the former Shire of Wambo which took effect on 22 April 2005.”

55. [55]
    With respect to the land which is freehold there are no restrictions on the use of that land for residential purposes.  With respect to the aggregation of the 13 lots there is no restriction within the town planning scheme to their use for commercial and business purposes which are permitted under the provisions of the Town Planning Scheme for the Shire of Wambo. 
56. [56]
    It should however be noted that the lease is subject to a condition that “the lessee shall use the leased land for commercial / business purposes”.^[10]
57. [57]
    Mr Gosden has previously appealed against an earlier valuation in respect of both the freehold and the leasehold land.^[11]  Those two appeals (VLA 373-10 and VLA 372-10) were against valuations issued by the respondent as at 1 October 2009.  Those appeals were brought pursuant to the now repealed Valuation of Land Act 1944 and consequently a different onus of proof applied to those appeals.
58. [58]
    In that earlier appeal Lot 97 was valued at $12,000 and the appeal in respect of that valuation was dismissed. 
59. [59]
    With respect to the leasehold land that appeal was against an initial valuation of $160,000 which by the time of the hearing was contended by the Valuer-General to be valued at $50,000. 
60. [60]
    With respect to the leasehold land the notice of appeal in the earlier appeal contended for a value of $42,000 but at hearing Mr Gosden contended for a figure of $39,000.  In the event in respect of the leasehold land the Court allowed the appeal and amended the value to $45,000. 

The Evidence of Mr Gosden

61. [61]
    Mr Gosden’s filed statements in respect of each of appeal became Exhibits before the Court and constituted the bulk of Mr Gosden’s evidence-in-chief. 
62. [62]
    Those statements were basically in identical terms save for the descriptions which necessarily differ because the 13 lots are constrained by the lease condition requiring commercial / business purposes whereas the individual Lot 97 is not so constrained. 
63. [63]
    The 13 lot valuation was acknowledged by Mr Gosden as having no zoning restrictions on use of the property for commercial and business purposes.^[12]
64. [64]
    With respect to Lot 97 there are no restrictions on the use of the land for either commercial or business purposes. 
65. [65]
    Mr Gosden does however say that with respect to Lot 97, the use of the neighbouring block as an established transport and storage facility with grain drying silos within six metres of the boundary would, in his opinion, preclude residential use on that lot. 
66. [66]
    With respect to the valuation of all of the land Mr Gosden’s statements say as follows:^[13]

“After driving to and inspecting sites in Kogan, Warra, Brigalow, Jandowae, Jimbour, Bell, Kaimkillenbun, Bowenville and Cecil Plains, the only directly comparative sites are in Warra.

These towns suffer from limited development potential from supposed resources boom.  The recent sales (2) in Macalister were the direct result of a “marketing con by Washington Developments” – comment by a very unhappy purchaser (Mum and Dad investors). 

WARRA–L30 RP32830:  PAR Thorn – valuation - $10,800 – area 1012m2 – all weather access –

 Town water

–

L18-19 RP3830:  PAR Thorn – valuation $1900 – area 971m2 – bitumen access – town water

–

L5 W2692: PAR Thorn – valuation $8,300 – area 4,047m2 – bitumen access – town water

–

L13-14 W26912: PAR Thorn – valuation $13200 – area 5059m2 – bitumen access – town water.”

67. [67]
    In addition to those observations relevant to both appeals, with respect to the leasehold lots, Mr Gosden adds reference to land located in the locality of Brigalow and refers to Lots 808 – 811 B5901 and Lots 1 – 3 B5903 and Lot 1 on RP47691, Parish of Earle which has a valuation of $65,000. 
68. [68]
    That land aggregation seemingly has an area of 1.45 ha with highway frontage and bitumen side road access.  It is already approved for residential use but Mr Gosden contends it could be easily rezoned for commercial use. 
69. [69]
    Overall Mr Gosden drew attention to what he says are the differences between Macalister and the townships of Warra and Brigalow. 
70. [70]
    He says:

“The townships of Warra and Brigalow have convenience us such as School, Hotel, Community hall, fuel outlet, shop, Rural Supply services, Rural Fire Service, Post Office and town water.  None of this is available in Macalister.

Above is a sample of many blocks in Warra and Brigalow and because of services and all weather access would be superior to our blocks at Macalister.”^[14] 

71. [71]
    In his oral evidence Mr Gosden referred to the photos which he had tendered to the Court.^[15]
72. [72]
    A number of photos showed the silos or grain drying facilities adjacent to the subject land and the very heavy motorised equipment which drives the fans for that silo function.  I accept that that demonstrates the unsuitability of some of the land for residential purposes. 
73. [73]
    Across the Warrego Highway from the subject lots of land is located a very large silo facility. 
74. [74]
    Mr Gosden points to the existence of those silos as another factor which would inhibit any inclination on the part of a landowner to use the subject lots or any of them for residential purposes. 
75. [75]
    Moreover Mr Gosden told the Court that the only prospect he has for getting power onto any of the lots of land is to run a line from a transformer, apparent in photograph 4^[16] to the west of those silos.^[17]
76. [76]
    He based that evidence on what he had been told by a representative of Ergon.
77. [77]
    The evidence which he had received from Ergon (which is not sought to be contradicted by the respondent) was that it was not a simple matter of simply stringing an additional line on existing poles but involved a requirement to install extra height poles.^[18] 
78. [78]
    Mr Gosden also told the Court that at the time he purchased all of the land he had purchased the freehold block to get the leasehold blocks, initially, in order to put a weighbridge there and to be able to use it to park equipment.^[19]
79. [79]
    Mr Gosden told the Court that he had not purchased any of the properties for residential purposes and that his farming property was less than a kilometre away from the subject site and the purpose of buying both the lots of freehold and the leasehold was to store equipment and to install the weighbridge mentioned above. 
80. [80]
    As to comparable sales and values in respect of each appeal Mr Gosden drew attention to land values in the township of Warra.
81. [81]
    In his statement of evidence Mr Gosden referred to four lots of land in the Warra township.  They are Lot 30 on RP32830, Parish of Thorn which has an area of 1,012 m² and enjoys all weather access and town water and has a valuation of $10,800 attached to it. 
82. [82]
    The second lot to which Mr Gosden referred is Lot 18-19 on RP3830, Parish of Thorn which has an area of 971 m² with bitumen access and town water and a valuation of $1,900. 
83. [83]
    The third lot to which Mr Gosden referred is Lot 5 on W2692, Parish of Thorn which has an area of 4,047 m² with bitumen access and town water and a valuation of $8,300.
84. [84]
    The fourth lot to which Mr Gosden referred is Lots 13-14 on W26912, Parish of Thorn which has an area of 5,059 m² with bitumen access and town water and a valuation of $13,200.
85. [85]
    As indicated above Mr Gosden also drew the Court’s attention to the township of Brigalow in which township he identified Lots 808-811 on B5901 and Lots 1-3 on B5903 and Lot 1 on RP47691 Parish of Earle. 
86. [86]
    In Exhibit 5 (the photos) Mr Gosden included photographs of the land in Warra.  It is clear from the photographs that that land lies in the middle of developed residential areas. 
87. [87]
    It is unclear when regard is had to the oral evidence and what appears in Mr Gosden’s written statement that there is some confusion as to the proper property descriptions. 

88. [88]
    In oral evidence he referred to Lot RPDL108 and later to Lot 705.^[20]
89. [89]
    In summary Mr Gosden’s point was that the Warra and Brigalow township lots were superior to the subject lots located at Macalister. 
90. [90]
    Mr Gosden’s understanding was that all of the land he referred to in both Warra and Brigalow was freehold land.
91. [91]
    Further with respect to comparable sales relied upon by Mr Gosden it became clear that there had been some confusion about the delivery by Mr Gosden to the Court at an earlier time of copies of the valuations upon which he relied. 
92. [92]
    An email was able to be located dated 30 May 2014 which evidenced the delivery of scanned copies of the properties located in Brigalow and Warra to which Mr Gosden had referred in his written statement together with other properties including some located in the township of Kogan. 
93. [93]
    Mr Gosden informed the Court that he relied upon the information contained in Exhibit 6 because the valuations relevant to those sales were valuations as at 1 October 2011 in some cases but at 1 October 2012 in some others.  Clearly the 1 October 2012 valuations and / or sales are unhelpful to me here because the valuation is for a period a year later than the relevant date. 
94. [94]
    With respect to the actual sales it appears that all of those occurred either in late 2012, 2013 or early in 2014 and accordingly, as sales evidence, they too are not of great help to me. 
95. [95]
    The valuation of like land however at the relevant date of 1 October 2011 may be of some use to the Court in the sense of relativity and consistency. 
96. [96]
    Unfortunately for Mr Gosden’s case careful examination of the various properties which have 1 October 2011 valuation date does not support his contention that, in a relativity sense, having regard to the higher level of service available to the Warra and Brigalow lands, his lands should be reduced in value.  One of the sales identified as being at the number 0 Raff Street Warra had an area of 1,012 m² and was valued as at 1 October 2011 at $10,800 more than three times the valuation per block he contends for the leasehold blocks at Macalister. 
97. [97]
    I am unable to tell from the valuation extracts contained within Exhibit 6 whether the land is appropriate for residential or for commercial / business use as the only land use description provided is “Vacant Urban Land” and no information as to the zoning of the land is given. 
98. [98]
    That valuation does not appear to be inconsistent with the valuation of land at 38 Thorne Street Warra with an area 1,012 m² which was valued on 1 October 2011 at $13,000 and was used at the time for a single unit dwelling.^[21] 
99. [99]
    Similarly, land located at 1 Campbell Street Brigalow with an area of 306 m² was valued on 1 October 2011 at $10,000.^[22]  Again a figure which does not clearly demonstrate that the Macalister land of Mr Gosden is overvalued. 
100. [100]
     In his oral evidence in chief Mr Gosden highlighted difficulty that he had with respect to access to the leasehold blocks of land. 
101. [101]
     In the course of his oral evidence the following appears:

“The development potential of the block, whether – for whatever the discussion is, is totally hinged on that access road.  The DNR – I’m sorry, I’m not sure what the department’s called these days, but they, at time of me taking out the lease, made it positively clear there was absolutely no access to the highway.  The ---

How do you say that’s achieved?---The no access?

Mmm?---The – it’s a nil access to the highway from those blocks.

It’s a limited access highway, is it?---I have no idea.  They just made it perfectly clear to me I was not to access the highway from those house blocks.

Okay.  Righto?---The local council did the same.  I went to them again and I was told perfectly clearly – that was from the days of the Woombye Shire Council.  I went back to them several years later again for an access road at the back and the – I – was made very clear to me that they would not be supplying one.  It was made very clear to me that if I wanted a road there, I had to get it formed.  Because I’m not an accredited contractor, or whatever’s involved and everything else these days, I’m not allowed to do the formation of the road because I’m - public property.  I have to pay for it from start to finish.  I was led to believe at the council office that that was going to be in excess of $100,000 with permits.  It was [indistinct] – I’m trying to think what was written in there – relocation of signs.  You had to have access over the floodway – over the table drain, even though surrounding properties don’t need it, apparently, but that one would, and I had to pay for it, even though it was going to be on public land.  And then there was something that – some other permit or expense for access off the road into the block.  I had to – there was another cost there.

Crossover?---I forget exactly what they called it, but there was [indistinct].  It was about that stage, I’m afraid, I threw hands in the air and ---

Righto?------and walked out.  I did ask the council if they wanted small business in the shire, and apparently they don’t.”^[23]

102. [102]
     Mr Gosden has made clear that so far as he was concerned the only appropriate use for the subject land – both freehold and leasehold – is as grazing land or for storing equipment.^[24]

The Evidence of Mr Doyle

103. [103]
     Mr Doyle’s evidence in chief was constituted by his two reports prepared for the purpose of these two appeals.^[25]
104. [104]
     In those reports Mr Doyle expressed the view that his considered opinion as an experienced registered valuer was that Lot 97 (LVA722-12) should be valued at $13,200^[26] and that the lands subject to the 13 leases (LVA666-12) should be valued at $50,000 or just under $4,000 ($3,846) per lot.^[27]
105. [105]
     In his reports and in his oral evidence in chief Mr Doyle informed the Court that he had relied upon comparable sales as the basis for his opinions.
106. [106]
     Indeed his reports record that:^[28]

“This valuation is made having regard to vacant sales that occurred within the valuation period within the Western Downs Regional Council and in particular those sales listed on the attached sales schedule.”

107. [107]
     The sales listed in the attached sales schedule were common to both appeals and consisted of three sales which Mr Doyle says he relied upon and which support his opinion.
108. [108]
     Neither of the three sales were referred to by Mr Gosden either in his filed statements or in the course of his oral evidence.
109. [109]
     Mr Doyle’s sale number 1 was of a 1.136 ha lot described at Lot 75 on RP 907464 located at Hustons Place Pirrinuan. 
110. [110]
     That sale occurred on 29 November 2011 at a price of $140,000 and the applied analysed valuation was $135,000.  For the purpose of his report Mr Doyle applied a figure of $125,000 to that sale.
111. [111]
     That Pirrinuan sale was approximately 19 km east of the subject site and involved a lot of land in respect of which electricity and telephone services were available and good access was available to the land by way of a bitumen-sealed roadway. 
112. [112]
     The land was zoned ‘Rural’ and consisted, Mr Doyle said of “gently sloping irregular shaped residential allotment”.
113. [113]
     Mr Doyle expressed the view that that lot was superior to the subject lot.
114. [114]
     It might be recalled that appeal number LVA666-12 involving the leasehold land is in respect of an area of 1.3156 ha of land which is available only for commercial / business use. 
115. [115]
     I do not find that Mr Doyle’s Sale 1 provides much use for guidance to me and the exercises which I must conduct in respect of either of the two appeals presently before me. 
116. [116]
     Mr Doyle’s sale number 2 was a property described as Lot 73 on RP 907464, otherwise located also at Hustons Place Pirrinuan with an area of 1.211 ha. 
117. [117]
     That Lot sold on 10 August 2011 for a sale price of $145,000 which Mr Doyle analysed to $137,500 and applied a figure of $125,000 for the purpose of his report. 
118. [118]
     Sale 2 was located in the same area as Sale 1 and similarly had electricity and telephone services and good access available over a bitumen-sealed roadway.
119. [119]
     Once again Mr Doyle expressed the view that that sale was superior in size and was a superior sale.
120. [120]
     Once again I express the view that that sale provides little guidance to me, it being of freehold land some 10 times the size of the subject freehold land in appeal number LVA722-12 and bearing none of the burdens of the leasehold land which is the subject of appeal LVA666-12.
121. [121]
     Mr Doyle’s Sale 3^[29] was of Lot 2 on SP 238489 located at Hayden Street Dalby.
122. [122]
     Sale 3 was in respect of an area of 5212 m² and occurred on 8 September 2011 at a sale price of $117,500 which Mr Doyle analysed to a site value of $112,500 of which he applied $109,000 as the valuation relevant and relied upon by him in the present case. 
123. [123]
     Like the previous two sales Mr Doyle’s Sale 3 enjoyed the benefit of telephone and electricity and had good access available via a bitumen-sealed roadway. 
124. [124]
     Sale 3 was of an irregular, hatchet-shaped block which was near level residential land.
125. [125]
     It was zoned ‘Rural Residential’ and Mr Doyle regarded that again as, while inferior in size, overall superior to the subject land. 
126. [126]
     I am bound to observe that nowhere in Mr Doyle’s report is there any information which allows the reader to glean the basis upon which his analysis occurred – nor is there any basis described or explained for the valuation which he ultimately applied for the purpose of the hearing of this appeal.  In short, they are not “speaking valuations”.^[30]
127. [127]
     Unfortunately none of the sales Mr Doyle was able to identify dealt with leasehold land and there is really no explanation in his report of the basis upon which he applies those sales of freehold land to the leasehold properties. 
128. [128]
     In his report in respect of appeal LVA666-12 Mr Doyle says as follows:

“The valuation was assessed by direct comparison with unimproved and site values analysed from sales of properties in the Western Downs Regional Council.

The only available sales evidence was of vacant land suitable for use for residential purposes.  Allowance has been made for the restrictive nature of the lease conditions on the subject property in the comparison with the sales evidence.”^[31]

129. [129]
     The difficulty with that observation is that it is entirely unsupported by an explanation as to what factors were taken into account in the “allowance” which was allegedly made. 
130. [130]
     The lease was entered into in 1998 for a term of 20 years so that the lease expires in 2018.  As at the date of valuation it had just under seven years left to run. 
131. [131]
     The evidence of Mr Gosden was that the land was basically unusable for anything other than the storage of farm machinery. 
132. [132]
     Nothing in the evidence from Mr Doyle suggests that it has any rental value although it clearly has some capacity for uses such as storing machinery or for the construction of sheds for some purpose which falls within the description of Commercial / Business. 

Conclusions

133. [133]
     This is a somewhat unusual appeal insofar as I am bound to find that, effectively, none of the valuation evidence adduced before the Court was of any particular assistance to me. 
134. [134]
     That probably reflects the difficulty of finding comparable sales evidence which was compounded by the fact that the lands the subject of appeal LVA666-12 are in respect of leasehold land, the lease on which is due to expire on 8 August 2018.
135. [135]
     Nevertheless I am bound by the statutory provisions which require at LVA s 169(3) that the appellant, in appeals against valuations such as the present appeals, bears the onus of proving each of the grounds of appeal. 
136. [136]
     The Gosden’s grounds of appeal are set out above in [17].
137. [137]
     For the reasons contained in the observations regarding the evidence adduced by Mr Gosden I am obliged to find that he has failed to discharge the onus of proof which is borne by himself and his wife and accordingly the appeals must be dismissed.

Orders:

1. Appeal LVA666-12 is dismissed.
2. Appeal LVA722-12 is dismissed.

WL COCHRANE

MEMBER OF THE LAND COURT