McPaul v Valuer-General[2021] QLC 7

LAND COURT OF QUEENSLAND

Background

1. [1]
   In this matter, Mr Peter John McPaul (Mr McPaul) appeals pursuant to s 155 of the Land Valuation Act 2010 (LVA) the Valuer-General’s decision to disallow an objection to the unimproved value of his land at 1751 Murphys Creek Road, Murphys Creek. The unimproved value issued by the respondent as at 1 October 2018 is $305,000 and by his appeal notice, Mr McPaul estimated an unimproved value of $120,000. At the hearing of this matter this estimate was revised to $210,000.
2. [2]
   Mr McPaul is self-represented and is not a valuer. He gave evidence on his own behalf and called no other witnesses.  On behalf of the Valuer-General, evidence was given by Mr Gregory Thomson (Mr Thomson), a registered valuer with 24 years experience.  No other evidence was called on behalf of the Valuer-General.

Legislation

3. [3]
   The subject land has a combination of rural classifications pursuant to the Gatton Shire Council Planning Scheme 2007 and, as rural land under s 7(b) of the LVA, the value of the land to be determined is its unimproved value.
4. [4]
   In this regard, s 26(1) of the LVA provides:

5. [5]
   The definition of expected realisation of land is set out in s 17 of the LVA as follows:

6. [6]
   Section 18 of the LVA defines that a bona fide sale is:

7. [7]
   Chapter 2, Part 2, Division 5 of the LVA deals with allowances and concessions. Relevantly, Subdivision 2 provides a concession for land used exclusively as a single dwelling house or for farming in the following terms:

8. [8]
   Section 169 of the LVA details the nature of the hearing and onus of proof:

  169  Nature of Hearing

 (2)  The appeal must be by way of a rehearing.

9. [9]
   Section 170 of the LVA concerns what this Court may do on appeal:

1. (a)
   confirm the valuation appealed against; or
2. (b)
   reduce or increase the valuation to the amount it considers necessary to correctly make the valuation under this Act.

10. [10]
    The subject land is located 14 km north-east of Toowoomba and 6 km west of Murphys Creek within the Lockyer Valley Regional Council local government area and is more particularly described as Lot 5 on SP 141765, County of Churchill, Parish of Taylor.
11. [11]
    The land is an irregularly shaped 51.93 ha parcel with direct access from Murphys Creek Road, a dual lane sealed bitumen road. Electricity and telephone services are available from Murphys Creek Road. Neither town water nor electricity are connected or available nearby for connection. Surrounding development comprises predominantly residential dwellings of varying ages, standards and construction styles.
12. [12]
    A gully dam is located on the south-eastern portion of the parcel with two additional dams situated toward the north-eastern boundary.
13. [13]
    The land rises from a level of 350 m AHD at the frontage to 435 m AHD toward the rear. A valley runs from the centre of the southern boundary to the north-east boundary with a second valley along the north-west portion of the land. An easement^[2] which traverses the land from the road boundary in the north-east to the south-west boundary allows for access and a right to use the easement for electricity transmission including the right to erect poles and wires for the benefit of adjoining Lot 1 on RP 32498. The easement was not being utilized at the date of inspection.
14. [14]
    The land is subject to Lockyer Valley Regional Council overlays which include Overland Flow Paths in respect of gully areas (no flood hazard is recorded); Steep and Unstable Land overlay - 12.1% of the land is subject to a steep and unstable land overlay; Biodiversity/Ecological Significance overlay - 2.5% (significant habitat areas); Class B Limited Crop Land overlay covers 1.6%; Potential Bushfire Risk overlay - 31.4%. Murphys Creek Road is mapped as a major transport corridor.
15. [15]
    Department of Natural Resources, Mines and Energy vegetation management mapping and related tables^[3] record the requirements and categories that apply to the subject land. The specific areas are areas comprising 0.67 ha Category B (remnant vegetation); 39.69 ha Category C (high value re-growth) and 11.88 ha Category X (clearing permitted). Regional ecosystems present on the property have a Structure Category recorded as being sparse.

16. [16]
    Mr McPaul relies on two statements, the first^[4] filed on 18 February 2020 is 40 pages long and a second^[5], filed by leave without objection, at the commencement of the hearing. Mr McPaul gave oral evidence and was cross-examined.
17. [17]
    Exhibit 1 sets out details regarding Mr McPaul’s purchase of the subject property and the improvements undertaken by him. Further matters such as drought, access, soil conditions and flooding are also addressed. A substantial part of Exhibit 1 addresses some 42 sales together with Mr McPaul’s views that the unimproved value of the subject land is excessive as at 1 October 2018 as well as earlier dates. A schedule^[6] is also included which notes the unimproved values issued by the respondent subsequent to 2011. 
18. [18]
    Exhibit 2 includes further observations regarding the unimproved value, an alleged error in the purchase date of the subject property, improvements undertaken on the land, comparability of the respondent’s sales evidence and some details relating to attempts by agents to sell the property. A list^[7] of rating periods and the corresponding unimproved values/rating charges for a period of roughly 10 years prior to the valuation date is also included together with a number of additional sales.  The sales are provided to demonstrate that both the current and earlier unimproved values and rating charges are excessive.
19. [19]
    An additional point pressed by Mr McPaul is that the subject land has been overvalued and continues to be overvalued as a result of the respondent selecting the highest sales, overlooking other sales and not taking into account all factors when comparing the subject land^[8]. Mr McPaul’s main sales and a summary of the contentions of each party follow:

  Mr McPaul - A 93.48 ha lot sold for $200,000 on 4 July 2012 and an unimproved value of $244,000. Later resold 9 November 2018 for $300,000. Much larger, bridge that trucks can pass under, 50 acres of cleared land under pasture, steel cattle yards and crush, shed, potential for subdivision, views, access to sealed road off unmade gravel road, 2 km to school and shop.  Mr McPaul questions^[9] how the later sale in 2018 can now be used when the 2012 sale with an unimproved value less than that of the subject land was not used. A related suggestion^[10] is that the respondent relies on higher sales and ignores lower sales. Mr McPaul also questions how the sale can be inferior to the subject.

  In the course of his oral evidence Mr McPaul stated that he did not know for a fact what approach the respondent had adopted to the earlier sale but “was putting forward a theory and trying to paint a picture.”^[11]

  Respondent - Mr Thomson was not employed by the respondent in 2012 and was not familiar with the 2012 sale at that time. Although he considered that the 2018 sale was of some relevance, it could not be viewed as inferior to the subject^[12] on an overall basis. He was of the opinion that the sales set out in his valuation report provided better evidence for the Court.

  515 Preston Boundary Road, Preston

  Mr McPaul - 26.9 ha lot sold for $246,000 on 29 September 2014 (lower than the then unimproved value of the subject) and resold on 12 April 2017 for $334,000. Mr McPaul submits that Preston is a superior location to Murphys Creek and that the sale shows that the subject property is overvalued and is an example of the respondent’s reliance on higher sales^[13].

  Respondent - The 2014 sale has limited comparability as at 2018. The 2017 sale supports the value applied to the subject as at 1 October 2018.

297 Upper Flagstone Creek Road, Upper Flagstone

Mr McPaul - 58.14 ha lot sold in 2018 for $247,000 a price that is lower than the unimproved value of the subject. The sale is for a different post code, 8 km to Toowoomba Kmart, has a dam, permanent water, well, diesel pump and 7,000 g tank with 2 road frontages and pasture areas. Mr McPaul questions why this sale was overlooked and suggests the sale supports a reduction to the unimproved value of the subject land^[14].

Respondent - sale is considered far inferior to subject due to limited grazing potential, steep topography and the presence of high voltage overhead powerlines and a powerline easement over the property. Mr Thomson would prefer not to use the sale for comparison but considered the sale could be supportive of the unimproved value of subject.^[15]

1400 Stevens Road, Murphys Creek

Mr McPaul - 140.6 ha sold for $245,000 on 7 July 2016. Mr McPaul suggests that it is strange how the sale price is way below the subjects even though it is 219 acres bigger, but inferior according to valuer Thomson^[16].

Respondent - Not relied upon by respondent. Older sale with limited comparability.

390 Stevens Road, Murphys Creek

Mr McPaul - 17 ha sold for $165,000 on 9 December 2017. All weather road to Murphys Creek Road, back road to Withcott. Mr McPaul suggests is supportive of a lower unimproved value for the subject land.

Respondent - Sale not relied on by respondent (comparability).

51 Watts Road, Murphys Creek

Mr McPaul - 64.7 ha sold for $230,000 on 31 October 2014.  Fenced, four paddocks, steel cattle yards and ramp, case bore water lic^[17] for creek and bitumen road access. Mr McPaul submits that

“Valuation of subject for this period was $265,000 and higher than the sale price and not a valuation price of this property and “All that information is unavailable to me. Sale shows that valuations are fabricated.^[18]”

Respondent - 2014 sale with limited comparability and not relied upon by respondent.

20. [20]
    In respect of the Valuer-General’s sales, Mr McPaul makes the following comments:

Sale 1 - Lot 1 285 Stevens Road, Murphys Creek - 64.75 ha, sold $300,000, analysed $282,000. Value $230,000. Date 18 September 2018.

Comment: “strange how this property is use agents 1751^[19] Unimproved Land Valuation when the Analysed Value is only $230,000.  Almost the same size as 1751.”^[20]

Sale 2 - 542 Rockmount Road, Rockmount - 34.54 ha, sold $330,000, analysed $295,000. Value $275,000. Date 11 July 2018.

Comment: “for a start its 4344 not in 4352 postcode. He sates fencing but according to him Fencing doesn’t come into the valuation. Has a spring well.^[21] It sold for 330 000 but the analysed- unimproved value or unimproved value was 275 000……No comparison been asked about what I spent in Murphys Creek.”^[22]  

Sale 3 - Lot 7 Flagstone Creek Road, Flagstone Creek - 53.95 ha, sold $330,000, analysed $269,000. Value $265,000. Date 11 February 2019.

Comment: “again it’s 4344 not in 4352 postcode and is 4 months after the date of valuation. Has 11 x 20 shed, fenced into paddocks, cattle yards, ramp, cleared land bore connected to power, 4 ha of rich cultivation soil and bitumen road. He makes the statement a easement, not as if they are working on the pipeline 24/7, 1751 has an easement also power and access.  ‘Why is 1751^[23] higher than Lot 7? An goes on about visual views of powerlines HONESTLY HOW IS THIS RELATED TO LAND VALUE.”^[24]

Sale 4 - Lot 5 Connoles Road, Postmans Ridge - 8.45 ha, sold $280,000, analysed $231,000. Value $225,000. Date 26 April 2017.

Comment: “Inferior due to road noise and shape of frontage, easement for power is Thomson saying there is a safety risk because of the power lines Why was this sale used and not the sale at 318 Creek Road 8.5 ha, sold $155,000, Date 9 May 2017.- he picks out the worst property to try and justify his job. Same size property, same sales period but a big difference in prices. Bitumen road.”^[25]

Sale 5 - Lot 11 Pederasts Road, Fifteen Mile - 27.83 ha, sold $325,000, analysed $325,000. Value $320,000. Date 21 September 2018.

Comment: “To show a different in location and land size and how sale $ are completely different.^[26] According to DNR irregular shape not much diff to 1751.”^[27]

Other sales:

Dollies Road or Lot 1 Knitters Road Blanchview 4352 - 43.71 ha sold for $375,000 on 12 October 2018 - said to have an unimproved value of $270,000. 80% cleared with Lockyer Valley Regional Council planning to bitumen the road. 2 km from Withcott Shops. 

Comment: Mr McPaul disagrees that the road and access issues are as had been discussed with Mr Thomson on an earlier occasion.  He also questions why the unimproved value is so much lower than the sale price and suggests that Mr Thomson had been mistaken on an earlier occasion when stating that the road would not be upgraded, as his enquiries indicate that a road upgrade was commenced in late 2019 or early 2020^[28].

A further contention is that “Blanchview is back of Withcott area and you can buy .46 ha of vacant land for $230 000.”^[29]

Respondent’s contention: The sale is not primary evidence but supports the unimproved value of the subject.

544 McMullen Road, Hampton - 40.63 ha, sold 3 April 2018 for $595,000, 25 mins to Toowoomba, dams, cleared paddocks, steel cattle yards.

Comment: Mr McPaul suggests that Mr Thomson stated that this sale was inferior due to the presence of high voltage powerlines and states that he has included this sale to highlight to the Court the difference in property prices between Hampton and Murphys Creek.^[30]

Respondent’s contention: Mr Thomson did not rely on this sale and was not cross examined on it.

318 Murphys Creek Road, Murphys Creek 4352 - 8.5 ha said to have been sold for $155,000 on 9 May 2017. 

Mr McPaul - questions why this sale wasn’t relied upon by Mr Thomson instead of a similar sized sale at Postman’s Ridge “a big difference in prices.” Mr McPaul also stated that he was unable to confirm sale with agents but double checked by locating the sale on two separate websites.^[31]

Respondent’s contention: details of sale/transaction cannot be located or verified. Mr Thomson gave evidence that …..“$ 155,000 is - there's nothing that sells in that area unless there's something untoward with the sale, because, like, there's no - a whole heap of other evidence, including your own evidence, which shows that sale is low and should not be relied upon.”^[32]

Preston Sales - Ex 2 includes a table of sales from the Preston locality^[33]. The sale dates range from June 2018 to April 2019 with areas ranging from 3610 m² to 18 ha.  The table is said to provide just an indication of the difference in property valuations between the two areas. Mr McPaul observes “there is a very large difference in property prices”, “As DNR knows and has been using Preston area as an indication for increasing Murphys Creek area valuation for years….but they still use that as a reference to increase property valuation”^[34].

Sales to indicate the difference between the 4352 postcode areas - the final three pages of Exhibit 2 include a further table of 24 sales^[35]. The sales are said to be provided “so the Court has an indication of the difference between the 4352 postcode area.”

The respondent’s valuation

21. [21]
    The evidence on behalf of the Valuer-General comprises a valuation report^[36] of registered valuer Gregory Peter Thomson filed on 24 January 2020; a reply report^[37] of Mr Thomson filed 25 February 2020 and his testimony given during the hearing in Gatton.
22. [22]
    To value the land in its unimproved state Mr Thomson has applied a direct comparison approach to compare the subject with 5 sales of vacant or lightly improved land from within the surrounding region. From this comparative process he concluded that the unimproved value of the subject land should be $305,000 as at 1 October 2018. He considers the highest and best use of the subject property to be as a rural home site and valued the land as having no greater potential than that. It is not contended by Mr McPaul that the land should have been valued on the alternative concessional farming basis pursuant to s 45 of the LVA.
23. [23]
    The following paragraphs set out an extract of the 5 sales relied upon by Mr Thomson and the relevant comparative analysis undertaken:^[38]

24. [24]
    Sale 1 sold for $300,000 on 18 September 2018 and comprises a 64.75 ha parcel zoned Rural Uplands. After allowing $17,500 for fencing water and clearing/development an unimproved value of $270,000 was determined for the sale property as a homesite. Located approximately 1 km north of the subject with access via Cabarlah rather than Murphys Creek. 63.40 ha of the total area comprises of Category B remnant vegetation, while 75.1% is classed as steep and unstable land with slopes > 15%.  100% of the land is classified as significant habitat areas. Although larger than the subject the sale is considered inferior to the subject due to its difficult topography, vegetation management restrictions, a likely requirement for upgraded access and the location of the electricity connection.
25. [25]
    Sale 2 sold for $330,000 on 3 May 2018. From the sale price, $35,000 was deducted for improvements which comprised fencing, water, clearing and land development. An unimproved value of $275,000 for the land was determined as at 1 October 2018.  Sale 2 is a vacant, irregular 34.54 ha parcel which rises slightly above street level with an elevated rural outlook available from building pad. The land is traversed by 3 gullies with 0.8 ha Category B remnant vegetation, 18.7 ha Category C remnant vegetation and 15.4 ha Category X remnant vegetation.  The land is subject to a local authority steep and unstable land overlay (66.2% or 22.8 ha).
26. [26]
    Although 23 km south of subject, sale 2 is considered useful given its proximity to Toowoomba and associated transport links. The subject land is considered to be in a slightly superior location, with proximity to the Murphys Creek community.  The subject also has a larger land area and a smaller area subject to the steep and unstable land overlay (12.1% or 6.28 ha)
27. [27]
    Sale 3 is a 53.955 ha lot which sold for $ 330,000 on 11 February 2019, having sold earlier on 1 August 2016 for $300,000.  Mr Thomson determined an analysed unimproved value by deducting $61,000 to account for the added value he attributed to a shed, yards, fencing, water, clearing and land development which had formed part of the overall purchase price. The respondent issued an unimproved value of $265,000 as at 1 October 2018 in respect of Sale 3.
28. [28]
    Sale 3 is situated 19 km south-west of the subject and 14.3 km radially north-east of the Toowoomba CBD. Sale 3 and the subject have not dissimilar proximity to Toowoomba and connections through the regional road network. The subject land has the added locational advantage of being nearby to the Murphys Creek community. Sale 3 has 32.2 ha of Category B remnant vegetation, 12.7 ha of Category C high-value regrowth and 12.3 ha of Category X. 58.6% of the sale area is classified as having slopes greater than 15% (steep and unstable land overlay). The sale is flood affected with the front portion having been inundated in 2011.
29. [29]
    A gas pipeline easement traverses the front portion of sale 3, and the area of that easement is enclosed by an additional local authority pipeline overlay. An area designated for future road reservation is noted on the survey plan, a feature likely to create some uncertainty for potential purchasers. The valuation expert considered this feature, together with the steeper, denser country, the flood affectation, the easement and infrastructure associated overlays, supported a conclusion that sale 3 was inferior to the subject land.
30. [30]
    Sale 4 comprises 8.452 ha of Rural General zoned land, located 9.5 km south-west of the subject property and 10.8 km east of the Toowoomba CBD. The site has an irregular shape and is impacted by traffic noise from the Warrego Highway which is situated at the rear boundary. The sale is also impacted by high voltage power lines and an associated easement which pass across the frontage of the property.
31. [31]
    Sale 4 sold for $280,000 on 26 May 2017. From the sale price the valuation expert deducted $54,000 for improvements including a shed, fencing, water and clearing. From the deducted amount a sum of $5,000 was added to account for clean-up costs associated with car body and debris removal from the sale property. An unimproved value of $225,000 was determined for sale 4 as at 1 October 2018. The valuation expert considered Sale 4 to be inferior to the subject due to the impact of road noise, its irregular shape, the presence of high voltage powerlines and the greater impact occasioned by the powerline easement being utilised for the purpose of maintenance and access in contrast to the easement on the subject property that was no longer being utilised at the date of valuation.
32. [32]
    Sale 5 comprises an irregular shaped 27.83 ha allotment which slopes steeply from its road frontage to the rear boundary. 62.8% of the land is covered by the steep and unstable land overlay, 100% is considered to have significant habitat areas, 27.8 ha is Category B remnant vegetation and 0.6 ha classified as Category X.  The site is considered to have potential for Lockyer Valley views.
33. [33]
    At the time of sale, the land was effectively in an unimproved state with the sale price of $325,000 also reflecting its analysed unimproved value.  An unimproved value of $320,000 was issued for the relevant valuation date of 1 October 2018.
34. [34]
    The sale is located 4.9 km north-east of the subject and 16.2 km north-east of the Toowoomba CBD, had inferior topography with levels rising from 350 m to 430 m across a smaller area. The land is unaffected by easements and is considered to be more highly impacted by Category B vegetation. Although smaller than the subject, sale 5 is considered superior to the subject due to its superior location and potential to achieve an elevated outlook.

35. [35]
    The issues raised in the Notice of Appeal include that the unimproved value of $305,000 is not supported by sales, having been increased by 15.1% after 5 years of drought, 2011 and 2013 flooding impacts, improvements on the property not having been taken into account, increases to council rates and mortgage tax, the valuation amount having been fabricated and an issue relating to whether any contended reduction to the unimproved value could be backdated to 2011.

The valuation increase

36. [36]
    The process of assessing unimproved values is best not distracted by a prolonged debate about percentage changes to earlier valuations issued by the Valuer-General. The critical focus must be on sales evidence, as “the increase is not a relevant issue provided bona fide sales of comparable parcels support the new value.  The Valuer-General and the Court are concerned with finding the unimproved value and not the amount of rates that may be levied as a result”.^[39]
37. [37]
    The evidence in its entirety and the submissions regarding the valuation increase have been considered fully and no basis is established upon which this ground could be acted upon by the Court.

Assessment of unimproved value/accounting for improvements

38. [38]
    The unimproved value of the subject land has been assessed at $305,000 by Mr Thomson after undertaking a comparative analysis of five lightly improved sales that he considered provided the best comparison with the subject land on an analysed unimproved basis. 
39. [39]
    A passage from Mr McPaul’s initial statement^[40] is headed Deduction for Site Improvements (if carried out and paid for in the past 12 years). Within the text that follows he records having spent $50,600 on improvements since purchasing the land. This heading may have been included on the assumption that the deduction provided for by the LVA^[41] is applicable to the unimproved value of the subject land. The deduction for site improvements is restricted only to site values^[42] in certain circumstances and has no legal or practical application to unimproved values. In the case of unimproved values, the LVA provides that all improvements (both site and non-site) are assumed not to have been made^[43] and as such are not in place for any deduction to be applied.
40. [40]
    A specific concern addressed by Mr McPaul is that improvements have only been deducted from the respondent’s sales and no corresponding deduction made in respect of the improvements on the subject land. The improvements said not to have been taken into account include internal road upgrades, dam clearing, clearing and extensions, access enhancements, fencing, clearing yards, lantana and weed spraying and tordoning.
41. [41]
    If an unimproved value is to be determined by a deduction approach, an assessment of both the improved value of a subject and the added value of the relevant improvements must be undertaken. Then Member WFG Smith in Grazing Selection No. 8212, Gympie District, Conversion^[44] in considering such an approach observed:

"I have never been impressed with a method of valuing wherein an improved or market value of a property is postulated and the unimproved value derived by deducting the value of the improvements from the postulated market value. Such a method starts with an assumption and ends with a figure dependent not only on the accuracy of the initial assumption but also on the reasonableness of the value attributed to the improvements."^[45]

42. [42]
    The preference for unimproved or lightly improved sales is emphasised by the Land Appeal Court in Clough v Valuer-General:^[46]

“It has been judicially laid down many times and in many jurisdictions that in ascertaining unimproved value, sales of unimproved land of comparable quality, situation etc., to the subject parcel, if they are available, are to be preferred as the best guide for arriving at unimproved value. The reason is obvious. In applying such sales there is no room for error in analysing the value of improvements.”^[47]

43. [43]
    Perhaps unsurprisingly, a deduction approach is not an option in this appeal as there is no evidence of an improved market value of the subject land from which the added value of the improvements might be deducted. Accordingly, the preferred approach referred to in Clough is apt to be applied as a primary method. As noted, this approach relies on vacant and/or lightly improved comparable sales being analysed (if necessary) for comparison on an assumed unimproved basis.
44. [44]
    Mr Thomson, the valuer for the respondent has detailed his application of this approach by setting out in his expert report the relevant workings^[48] to demonstrate how an analysed unimproved value was derived from each sale. The comparative process that was then undertaken using the analysed unimproved values is also detailed^[49] within his valuation report. This valuation approach is a well recognised and accepted approach to determining an unimproved value without the need to assess improved market values or quantify the added value of improvements for the purposes of deduction.
45. [45]
    A related issue emphasised by Mr McPaul is that the land description as open grassland in Mr Thomson’s^[50] report overlooks the work undertaken to improve those areas via clearing and weed control^[51].  Mr McPaul also questions why Mr Thomson has compared the subject property with sales impacted by lantana, when the subject property is mostly lantana and weed free^[52].
46. [46]
    Mr Thomson’s reply report^[53] confirms both the accuracy of his land description and that the subject land was valued in accordance with the Land Valuation Act 2010 using directly comparable sales and an unimproved valuation methodology. His valuation report demonstrates an appreciation of the relevant attributes of both the subject land and the sales selected for comparison. His reliance on sales considered likely to be impacted by lantana^[54] and his adjustments to the relevant sales^[55] for items such as clearing, tordoning and land development are consistent with recognised valuation practice. 
47. [47]
    An examination of the evidence in its entirety does not disclose any error on the part of the valuation expert in applying this methodology to determine the unimproved value of the subject land and consequently the Court cannot find on the evidence that this ground is established.

48. [48]
    By his Notice of Appeal Mr McPaul raises the impact of flooding in 2011 and 2013 upon the local community and questions how any valuation increase could be possible. In his reply Mr Thomson notes that the relevant date of valuation is 1 October 2018 and in his valuation report notes that Sale 3,^[56] a sale in 2016 and a resale in February 2019, was impacted by flooding in 2011. 
49. [49]
    Mr McPaul further contends that given the drought conditions leading up to the date of valuation an increased unimproved value cannot be justified. The respondent submits that Mr Thomson has addressed the drought issue by virtue of the sales evidence relied upon,^[57] and given the timeframe of those sales, the assessment of the issued unimproved value is reflective of the prevailing drought conditions up to the date of valuation (1 October 2018). The valuation expert has again identified Sale 3^[58] as an example of a sale and resale during that period that demonstrates an increased sale price notwithstanding the ongoing drought.^[59]   
50. [50]
    The existence of the drought conditions generally and the fact of the flood events of 2011 and 2013 within the local area are not matters of dispute between the parties. Notwithstanding this and the strong submissions by Mr McPaul, no contention has been made that the Court should attempt to account for any impacts other than by reference to the market for comparable lands.^[60] The only expert evidence before the Court in regard to these issues is that of the respondent’s valuer Mr Thomson, evidence which has not been discredited or contradicted. 
51. [51]
    Consideration of the evidence as a whole does not disclose any basis that would require the Court to make some adjustment or substitute some other value as at 1 October 2018 on the basis of the drought period or the unfortunate flood events of 2011 and 2013. 

Sales selection/valuation fabricated

52. [52]
    Mr McPaul also contends that the unimproved value is fabricated and higher than it should be. As understood, this ground is said to result from the respondent relying on the highest sales, overlooking lower sales and therefore fabricating an inflated unimproved value.
53. [53]
    The evidence in support of this ground includes a chronology of rating and valuation data from 2007 to 2018, lists of unimproved values and dates of effect, half-yearly rates charges in dollar amounts and fractional rate charges per dollar of valuation as levied by the local authority.^[61] The sales already discussed at [18] are also contended by Mr McPaul to be supportive of this ground.
54. [54]
    Mr Thomson addressed Mr McPaul’s sales in his reply report and during cross-examination. His evidence addresses matters such as comparability, date of sale/relevance issues and the extent to which a particular sale is likely to assist the Court. The selection of sales is clearly a matter within the professional judgment and skill of an experienced valuer. Mr Thomson’s evidence, both in chief and when cross examined, was logical and consistent with recognised valuation practice.
55. [55]
    Further issues raised in relation to the respondent’s sales include that some sales are quite distant from the subject land and specifically that sale 3 is an “after date” sale having a contract date in February 2019 and that sale 4 is an early sale with a contract date in May 2017.
56. [56]
    It is understood that the sales selected were considered to be the most helpful available given the issues raised e.g. sale 3 was a re-sale during the drought period, was flood affected and impacted by both a road reservation and an oil pipe-line easement. High-voltage powerlines and stanchions were reported to be visible to the south from the sale. Sale 4, an early sale was considered helpful as high voltage powerlines and an associated easement were situated toward the front of the property.
57. [57]
    It is not controversial that sale 3 has occurred during the period between the 2015 and 2018 valuations or that sale 4 although some months after the date of valuation transacted prior to the date of issue on 6 March 2019.  Aside from the less than perfect timeframes, the sales appear highly relevant given their attributes and given that sale 3 is a re-sale. It is not considered that the evidence or submissions provide any basis upon which Mr Thomson’s sales or his valuation approach should be rejected.
58. [58]
    There is nothing in the expert reports or testimony of Mr Thomson, or in the evidence presented in support of the appeal, that demonstrates that the sales selected by the respondent have resulted in the unimproved value being inflated or somehow fabricated. Accordingly, no basis is demonstrated that would require the Court not to accept the sales evidence and valuation conclusions reached by Mr Thomson.

59. [59]
    In addition to submitting that the unimproved value of the subject be reduced to $210,000 as at 1 October 2018, Mr McPaul urges the Court to backdate this reduction to 2011 on the basis that the Valuer-General’s valuations during this period were inconsistent with sales in the area.^[62] On behalf of the respondent it is contended that the jurisdiction of the Court pursuant to the s 170 of the LVA is limited to the valuation date of the unimproved value the subject of the appeal, namely 1 October 2018. 
60. [60]
    Although there do not appear to be any decisions of this Court regarding this question in the context of s 170 of the LVA, in Crosby v Department of Natural Resources and Mines^[63] a similar issue arose in relation to s 66 of the Valuation of Land Act 1944,^[64] a provision analogous to s 170 of the LVA. Then President MacDonald held:     

[9] Implicitly, the appellants' submissions may be understood as a request to revalue their land back to the date of purchase in 1994. Even if such an interpretation were adopted, it does not assist the appellants because the Court does not have jurisdiction to do that. There has been no objection lodged under s.42 to each of the intervening valuations nor, consequently, any appeal lodged under s.45(1) in respect of those valuations.

[10] Moreover, the Court does not have the power to order the department to backdate the reclassification of the land nor to make any decision as to whether the respondent was in breach of any duty of care owed to the appellants, as alleged. Section 66 of the Act (which applies to this appeal by virtue of s.45(9)) provides that upon an appeal, the Land Court may either affirm, reduce or increase the valuation appealed against, and make appropriate orders as to the payment of costs. The appellants do not seek any alteration to the revised valuation as at 1 October 2004. No power is given to the Court to make any other orders.^[65]

61. [61]
    The jurisdiction of the Court pursuant to the LVA is limited to the date of valuation to which the respondent’s decision on objection relates, namely 1 October 2018. The application or otherwise of s 7A of the Land Court Act 2000 has not been the subject of any specific submission and therefore in the context of this decision there is little utility in embarking on an analysis of that question.

62. [62]
    The quantum of rating and/or taxing increases are not matters that this Court has jurisdiction to adjudicate upon.^[66]

63. [63]
    On 2 November 2020 email correspondence was received from Mr McPaul. Attached to this correspondence were two digital files containing audio-visual recordings. The first file is approximately 2 seconds in length and quite difficult to understand. The second file is approximately 6-7 seconds in length and although difficult to interpret visually, would seem to be a recording of train noise. A summary of the points raised in the body of the email is set out below:

• Since the hearing in Gatton, the railway has finished its upgrade. Before the upgrade I may have heard a train when the driver was applying the brakes, but not now, the noise has increased 100%. I have reported it to QR and waiting on their response. In regards to noise testing before and after the upgrade.
• DMR commented about highway noise on the property they used. So I can add train noise to that list average of 15 to 20 trains day and night.
• I hope you can hear this video as I’m not sure if they attached. Give you an idea of what I’m putting up with.
• I have had a buyer look at the property & comment “we want to buy a country area, not next to a railway line”.

64. [64]
    Later on 2 November 2020, the Court requested that the respondent provide any submission by 6 November 2021, and that any reply be provided by the appellant by 4.00 pm on 11 November 2020.
65. [65]
    On 3 November 2020 submissions on behalf of the respondent were emailed to the Court and Mr McPaul. The respondent contends that the materials are not supported by any application and affidavit, the materials are not so material that the interests of justice would require it’s admission or if accepted would probably affect the outcome of the case, the materials are of limited probative value as the noise pollution, as a result of the upgrade, is two years after the date of valuation, any impact as at 1 October 2018 has been taken into account as the respondent’s sale 1 is impacted by rail noise, the comment by the buyer did not relate to a sale of the subject property and is therefore not a Spencer sale.
66. [66]
    On 19 November 2020, material in reply to the respondent’s submissions were received by the Court from Mr McPaul.  A summary of the further matters is extracted below:

• For 3 years he has put up with average 40 trucks a day carting material up for the Toowoomba by-pass. After that, he has put up with between 30 to 60 dump trucks a day carting material for rail slope stabilisation. Work started in late 2018.
• If you change a natural environment and replace it with a man-made structure you change that environment, either it be for water flow or noise.
• QR did this by replacing the natural ground with concrete and stone. Therefore enhancing the acoustic sound and amplifying the train noise.
• (Before the slope stabilisation, I may have heard a train when applying its brakes, but now you hear every train at a high pitch searching)
• And for his information, if he carried out some research Stevens Road did NOT get the slope stabilisation that QR did between Spring Bluff & Donnollys Road. But that DNR they don't do research, just make false statements. Such as Dolleys Road & property with lantana on, as lantana only grows in good soil.
• If QR had finished this work before the hearing in Gatton I would have supplied the court with the 5 min recording sometimes longer. (because I am 80% defeat in my right ear, it could be even longer.) 
• The Toowoomba bypass & QR trucks were not a permanent event BUT the Coal & Grain Trains up & down the rail line is a permanent event up to 20 trains a day, 7 days a week, 365 days a year.

67. [67]
    Although no formal application to re-open has been made by Mr McPaul, the Court is prepared to consider the submissions and materials provided without the need to re-convene.
68. [68]
    From the submissions provided, it does not appear to be in dispute that the circumstances surrounding the train noise have emerged subsequent to the hearing of this matter in Gatton on 24 July 2020, a period of approximately 22 months after the date of valuation. Similarly, the comments attributed to a “buyer” regarding the train line also appear to exceed the date of valuation by a similar period. 
69. [69]
    Events which have occurred so long after the date of valuation are not ordinarily able to be taken into account when assessing value as at an earlier date.^[67] While it is understandable that Mr McPaul has alerted the Court to this circumstance, it is difficult given the timeframes to find any basis upon which the recordings could be received as evidence.
70. [70]
    A further question that arises is whether this noise issue has been included as a ground of appeal as required by s 169 of the LVA. The quite extensive Notice of Appeal filed 19 August 2019 has been reviewed in detail and it does not appear that train noise or any other type of noise is identified as a ground. As a consequence, even if the recent circumstances were admissible on some basis, the Court would none the less be precluded from considering the issue in the absence of a related ground of appeal. 
71. [71]
    It is not considered that the proposed further evidence “if accepted would most probably affect the outcome of the case”^[68] and therefore it is not proposed to receive the materials concerning train noise or the comments attributed to an enquirer regarding the railway line.

Conclusion

72. [72]
    The duty of the Court and the onus that an appellant must discharge pursuant to s 170(b) of the LVA is addressed by the Land Appeal Court in Tennyson Reach v Valuer-General:^[69]

“As I understand the operation of the LVA, the Court has a duty to undertake a two-step process in considering an appeal. The first step is to determine whether or not the evidence in its totality supports the case put by an appellant that the issued valuation is in error, on the balance of probabilities, so that the onus of proof is discharged. If the onus of proof is discharged, the second phase of the evaluation to be undertaken by the Court comes into play. That is, what is the correct valuation of the subject land? The Court can only get to a consideration as to the correct valuation of the subject land and thus, s 170(b) of the LVA, in circumstances where the onus of proof has been discharged”.^[70]

73. [73]
    The task faced by a self-represented litigant, unassisted by valuation evidence in LVA appeals is an onerous and difficult one. Notwithstanding this, Mr McPaul has extensively searched the internet and accumulated a plethora of sales data which has apparently been cut and pasted into exhibits 1 and 2.^[71] As is often the case, even with expert valuers, Mr McPaul has encountered some difficulty confirming sales information with vendors and purchasers^[72] and also found that agents were often unable to assist.^[73] Despite this, Mr McPaul has improvised by confirming if the extracted data also appeared with other agents.^[74] Mr McPaul was also unable to inspect most of his sales but recalled inspecting some of them when looking to purchase the subject land years before.^[75]
74. [74]
    The nature of the lay evidence in LVA appeals was considered by the Land Appeal Court in Beydoun v Valuer-General:^[76]

[27] The appellant is not a qualified valuer of land. The only expert evidence was that given on behalf of the respondent. The expert qualified valuer provided an opinion which was persuasive to the learned President. That opinion was not contradicted by any competing expert evidence. The appellant’s opinion was to the effect that the site value should not be more than $230,000, the site value assessed by the respondent as at 1 October 2014. The appellant did not have a valuation assessment arrived at by a method which the Courts have decided would be reliable.

[28] It is unnecessary to decide whether the appellant’s opinion was admissible in proof of value because, even if it was, in view of the expert evidence of the respondent’s valuer, the appellant’s opinion however genuinely held, could not be persuasive. The Court notes the appellant’s disagreement with the valuer’s opinion, as demonstrated in his cross-examination of the valuer, who did not depart from the valuation opinion expressed in the written report that became an exhibit.^[77]

75. [75]
    The evidence of Mr McPaul and the valuation expert has been fully considered together with the respective submissions of each party. The Court has reached the view that Exhibits 1 and 2, which largely comprise data transposed from the internet are of quite limited weight and as such are incapable of providing any basis upon which the Court could find “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.”^[78]As a consequence, Mr McPaul’s strong views, however genuinely held, provide no basis upon which the Court could reject the only expert evidence placed before it.
76. [76]
    The comparative analysis of vacant or lightly improved comparable sales undertaken by the Valuer-General’s expert is a widely accepted, conventional approach that has been adopted by Courts for many years. The valuation report relied upon by the respondent includes a sales reconciliation, a valuation rationale and thoroughly records the underlying factual basis and reasoning associated with the valuation conclusions reached. The valuation expert’s sales evidence is persuasive, particularly Sale 1 at 285 Stevens Road, Murphys Creek, a well comparable sale nearby to the subject land which sold for $300,000 shortly before the valuation date.
77. [77]
    The valuation expert was cross examined on his evidence by Mr McPaul and no aspect of his reports or oral testimony would require the Court to do other than adopt the expert opinion he has provided.

Orders

1. The appeal is dismissed.

2. The unimproved value of Lot 5 on SP 141765, 1751 Murphys Creek Road, Murphys Creek (PID 40616819) is confirmed in the amount of Three Hundred and Five Thousand Dollars ($305,000) as at 1 October 2018.