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- Unreported Judgment
LAND COURT OF QUEENSLAND
The Trust Company Limited v Valuer-General 
The Trust Company Limited
ACN 004 027 749
Appeals under s 155 of the Land Valuation Act 2010 against objection decision
13 November 2020
7, 8 September 2020
Submissions closed 23 October 2020
REAL PROPERTY – VALUATION OF LAND – SITE VALUE – METHOD OF ASSESSING - COMPARABLE SALE – PREFERENCE OVER OTHER MOTHODS – where the highest and best use of the subject properties are childcare centres - where the appellant valued a childcare place – where the appellant used the value of the childcare place to arrive at the site value – where this method is analogous to carrying capacity of land – where the respondent adopted a methodology using comparative sales to arrive at the site value on a rate per m2 basis – whether the Court should accepted the novel methodology of appellant.
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – where the Court preferred a rate per m2 methodology to value the site – whether the Court should consider alternative methodologies in arriving at the site value.
EVIDENCE – EXPERT EVIDENCE – where an expert valuer sought to rely on lay opinions of valuers not called to give evidence – where lay opinions presented as affidavits – whether lay opinions of assistance in arriving at valuation methodology.
Land Valuation Act 2010, ch 4
Valuer-General v Body Corporate for Tennyson Reach Community Title Scheme 39925  QLAC 7, cited
Multiplex 240 Queen Street Landowner Pty Ltd & Anor v Department of Natural Resources, Mines and Water  QLC 30, cited
PH Clough v Valuer-General (1981-82) 8 QCLCR 70, cited
JD Byrnes instructed by Colin Biggers and Paisley for the appellant
DA Quayle instructed by In-House Legal for the Valuer-General
- The respondent routinely valued these sites as at 1 October 2017, as required by the Land Valuation Act 2010 (the Act). The appellant objected to the valuations and decisions were made on those objections. The appellant was dissatisfied with the decisions on objection and brought the current appeals to this Court.
- There are 3 sites:
- 106 Helensvale Road, Helensvale;
- 182 Monterey Keys Drive, Helensvale;
- 46 Mirambeena Drive, Pimpama.
- They were valued at, respectively:
- None of these valuations changed on objection.
- The respondent, having made these valuations and seen them confirmed on objection, abandoned them at the hearing and contended for the figures arrived at by the valuer upon whose opinion the respondent relied for the purposes of the appeals. The figures relied on by the respondent were, respectively:
- The appellant relied on the opinion of the valuer who was called on its behalf and in whose opinion the values ought to be:
- The appellant bears the onus of proof of its case and the process of the appeals is a two-step one. Firstly, the Court must decide, on the totality of the evidence, whether the decision on objection is in error. If it is, the Court will proceed, as directed by s170(b) of the Act, to change the valuation so that it is correct. That is the second step.
The appeals are allowed
- Since the respondent concedes that the decision on objection is incorrect, it concedes that the Court must allow all of the appeals. The Court does so. It remains for the Court to carry out the task required by s170(b) to correctly make the valuations.
- The Court is not an inquisitorial body but must act on the evidence before it. As an expert Court, it will apply its own expertise where it is appropriate to do so. The Court is not a third valuer, however, and must look to the evidence of the witnesses to find the correct value.
The correct valuations – the evidence
- Both parties called registered valuer’s who expressed their opinions on the correct valuations. They prepared a joint expert report. Mr Ladewig was engaged by the appellant and Ms Wadley by the respondent. The valuers were assisted in arriving at their valuation opinions by reports of experts in other fields.
Affidavits sought to be relied on by the appellant
- At the start of the hearing, the respondent objected to the tender of five affidavits which had been relied on by Mr Ladewig in forming his opinion. They were included in the joint expert report of the valuers. The Court decided to make the ruling on this objection in this judgement and will deal with each affidavit seriatim.
Affidavit of Brett Gary Schultz
- Mr Schultz is the Director, Valuation and Advisory, of Savills Australia. Mr Ladewig, the Director, Statutory Valuations, of Savills Australia emailed Mr Schultz seeking his opinion about how to value, simply put, land with a highest and best use for childcare purposes. The question, and the reply email form the payload of the affidavit.
- Mr Ladewig was the appellant’s chosen expert. Mr Schultz was not called. The Court is not assisted by the opinion of someone not called to give evidence and is required to consider Mr Ladewig’s opinion. Mr Schultz’s affidavit is inadmissible, as it is irrelevant to what the Court has to decide. Were it admissible, it would be of no weight as the deponent was not the expert called by the appellant.
Affidavit of Stuart David Bishop
- Mr Bishop is a Director of Taylor Bridge Capital. He described himself in his affidavit as an active participant in the childcare market. He states what he considers is important and reliable to consider when purchasing/valuing as site for childcare use.
- Mr Bishop was not called, and his opinion is also irrelevant to the Courts’ process. It is inadmissible and were it admissible would also have no weight. He is a bystander. He is of course entitled to his opinion but the Court could not rely on it for present purposes.
Affidavit of Mr Benjamin Alastair McPhee
- Mr McPhee is a director of Citimax Property Group. He has experience working for a childcare valuation expert, as he states in his email to Mr Ladewig. He gives his opinions on valuation of land for childcare use.
- Like the preceding affidavits, this one is inadmissible and, if admissible, would have no weight for the same reasons.
Affidavit of Paige Susan McCleary
- Ms McCleary is a certified practising valuer at Herron Todd White. Responding to Mr Ladewig’s email, Ms McCleary states the key demographics that Herron Todd White uses when doing what Mr Ladewig is endeavouring to do, which is to value a site for a childcare use.
- This affidavit is as inadmissible as the preceding ones, and for the same reasons. The Court is not assisted at all by the opinion of someone who is not a witness before it. The affidavit is inadmissible and, if admissible, would have no weight.
Affidavit of Nicholas James Anagnostou
- Mr Anagnostou states that he is head of social infrastructure funds at Charter Hall. He is a certified practising valuer in Victoria and a real estate agent.
- In his reply to Mr Ladewig’s email soliciting his opinion of how to, in effect, conduct Mr Ladewig’s valuation task, he gave his opinions.
- The opinions of this deponent are as unhelpful to the Court as the others. The affidavit is irrelevant and inadmissible. If it were admissible, it, like the others, would have no weight for the same reasons. It is the opinion of a bystander, not of an expert witness.
- These five affidavits all show that they were prepared by Savills Valuations Pty Ltd. The appellant was represented before this Court by solicitors and counsel who bear responsibility for what they put before the Court. Mr Ladewig bears responsibility for including the affidavits in the valuation experts’ report.
- This material is of no assistance to the Court in arriving at the correct values in these appeals. It is not admissible and of is no assistance to the appellant whatsoever.
- The Court’s disposition of these appeals is not influenced by the contents of any of these affidavits in a way that assists the case for the appellant. However, the affidavits were included in the joint expert report and form part of it. The Court will not sever them from the joint valuation report as to do so would make it less informative. Although excluding all consideration of this material would abbreviate the Court’s task, allowing it to remain for the limited purpose of providing context will facilitate a more comprehensive exposition of the Court’s reasons for decision and will therefore be worthwhile.
- There was a contest between the parties as to whether land with the highest and best use for childcare facilities should be valued on a rate-per-square-metre basis, as Ms Wadley did, or on the basis of the number of childcare places it could support, the basis used by Mr Ladewig.
- Ms Wadley was asked if it made sense to value the property based on the number of childcare places rather than the area of land. Her reply was a clear “no.”
- Mr Ladewig adopted the approach of using the number of childcare places. His reason for doing so is found in the affidavit material which has been referred to. This essentially amounts to the valuation method being chosen based on the opinions of the deponents. This is not an acceptable basis. It is not a method that reflects an accepted valuation method, as distinct from the opinions of the deponents.
- When the affidavits are examined, it is noted that Mr Schultz stated that he would use both the $ rate/m2 of land area and the $ rate per long day care place to value such a site as those being considered but that in his experience the market focuses on the number of places.
- In the case of 106 Helensvale Road, Helensvale, Mr Ladewig valued it on the basis that it would support 79 of these long day care places (LDCP) at $10,000 each so the value was $790,000.
- It will be observed that Mr Ladewig only applied part of the method suggested by Mr Schultz.
- Mr Ladewig used only the LDCP method.
- The affidavit of Ms McCleary is another illustration of Mr Ladewig adopting part of the advice upon which he claims to rely. This deponent states that the rate per place is the primary method and the rate per square metre of land is the secondary method.
- Again, Mr Ladewig has applied only one part of the advice he has purported to rely on.
- The affidavits themselves are of no assistance to the appellant but they are informative to the Court in some ways. They show that:
- (a)Mr Ladewig has made clear, by including them in his report, that he is using a method because the deponents are said to endorse it, which is no basis upon which a valuer could legitimately act; and,
- (b)Mr Ladewig has not consistently applied the advice upon which he purported to rely.
The Ladewig theory examined
- Mr Ladewig has proceeded on the basis that the land the subject of these appeals can be valued on the basis of how many childcare places a site could support, applying that to a dollar value per childcare place. This is a novel take on the concept of carrying capacity, one frequently arising in respect of rural lands and involving sheep or cattle.
- It PH Clough v Valuer-General, the Land Appeal Court said:
“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 the unimproved value. The reason is obvious. In applying such sales there is no room for error in analysing the valuer of improvements.”
- The underlying concept is to compare land to land. The greater the departure from this, the greater the risk of inaccuracy. A commonly encountered difficulty is the presence of improvements, which provides scope for error and disagreement. Here, Mr Ladewig proposed to value these sites by the number of childcare places they may support and the assigned value of a place. The competing valuation method, adopted as the primary method by Ms Wadley, has not been displaced by the application of the theory adopted by Mr Ladewig, which is itself separated from the totality of the advice put forward in support of it.
- The theory applied by Mr Ladewig may have utility when valuing or estimating the economic feasibility of a childcare business on a site, but the Court does not accept it as a useful method of valuing the site under the Act, most particularly when the respondents valuer used the rate per m2 method as the primary method, it being an available approach. It is a very common and accepted approach to valuing a site under the Act and is not susceptible to the criticism that it uses a metric other than land, namely childcare places, which must themselves then be valued. This is a more remote and indirect method and one where the material relied on to support its use contains a caution to use it alongside, and not in place of, a rate/m2 valuation, as Mr Schultz wrote in his email to Mr Ladewig.
The Ladewig theory rejected
- The method of valuation adopted by Mr Ladewig is not accepted by the Court. It is fundamental to his valuation in the case of these three appeals and it contaminates all of them. The Court is unable to derive any assistance from the valuations relied upon by the appellants in arriving at the correct valuation of these sites.
The consequences of this
- The Court is left with a body of evidence which in each case is a valuation opinion arrived at on a conventional basis and is the only evidence before the Court which is capable of being accepted. The use by Ms Wadley of Mr Ladewig’s method as a secondary, check method does not infect her valuations, although it renders the check method of no assistance. The Court accepts the valuation method and opinions of Ms Wadley, and the conclusions which she arrives at, on the basis that it is the sole body of useful valuation opinion before the Court.
- The Court’s duty to correctly make the valuation under s170(b) will allow the Court to have recourse to the whole of the evidence before it in order to ensure that it is satisfied that the valuations contended for by the respondent are correct, rather than the only ones left standing, as it were. In order to do this, it will not be necessary to examine every instance where the two valuers have adopted a different approach and to make a choice of one over the other. In view of the finding in regard to Mr Ladewig’s valuation, it will be necessary only to consider whether Ms Wadley’s valuation ought to be adjusted in some way or, in theory, entirely rejected as incapable of being correct. It will not be necessary to explore the possible consequences of that unless and until that point is reached.
- It will not be necessary to resolve all of the differences between the valuers as in the event that say, Mr Ladewig’s approach to some aspect is preferred, that could not lead to a different value being arrived at by adjusting Ms Wadley’s valuation. This is because Mr Ladewig’s valuation has applied a different approach, which has been rejected, and there is no useable evidence from his valuation report which could provide a sound basis for adjusting Ms Wadley’s valuation. The most that could be achieved would be to interfere with Ms Wadley’s analysis of sales and, from that, her valuation conclusion.
- This would be as unnecessary as it would be presumptuous. It would effectively amount to the Court taking on the role of a third valuer and exercising, where there is only one acceptable valuation opinion, the valuer’s unique skill. There are doubtless cases where the Court may have to do this, but these appeals are not in that very small category. The Court should leave the exercise of valuation judgement to the valuers to the maximum extent possible.
- In these cases, where there is only one body of valuation opinion evidence, dealing selectively with it introduces the potential for error when that potential does not need to be enlivened in order to resolve the appeals. Comminution of the evidence in order to resolve all differences of opinion is at once unnecessary in these cases, unlikely to be helpful for the reasons given, and likely to provide opportunities for error, to the benefit of neither party.
- Accordingly, the Court will look at areas of difference in the valuations before it with a view to ascertaining the degree of confidence able to be reposed in the valuation of Ms Wadley, rather than with the rather unhelpful aim of resolving them all.
Assumptions for existing uses
- This is related to s 22 of the Act, which provides that it must be assumed that the sites may be used for what it was or could be used for on the valuation date. This is assumed to be allowed into the future in that the use may be continued. Also, improvements may be continued on the land or made to it accordingly.
- The valuers differ on the application of s 22. In the facts of the present appeals, the appellant’s contention is that, when analysing the sales, the cost of obtaining development approval will not be the subject of any adjustment for Sales 1 and 2 but will be subtracted from Sale 3.
- The respondent’s contention of the meaning of s 22 would have the result that the cost of obtaining a development approval would need to be added to the analysis of sales 1 and 2 but not be an adjustment in the analysis of Sale 3.
- Sales 1, 2 and 3 were common, used by both valuers.
- Sale 1, at 156 Gainsborough Drive, Pimpama has an area of 3,000m2. It was sold subject to approvals with a code assessable Material Change of Use (MCU) application lodged by the purchaser for a childcare centre.
- Sale 2, at 76 Finnigan Way, Coomera has an area of 3,070m2. It was sold subject to a like condition.
- Sale 3, at 53 Old Pacific Highway, Pimpama has an area of 3,879m2, of which 3,541m2 is useable. The vendor paid for a MCU for a childcare centre so it was sold on that basis, subject to approval which was in fact obtained by settlement. The vendor paid for the cost of obtaining the approval. This is the distinction from the other sales.
- Depending on the view of s 22 applied, the difference in the valuation arrived at would be, according to Ms Wadley:
106 Helensvale Rd, Helensvale
182 Monterey Keys Drive, Helensvale
46 Mirambeena Drive, Pimpama
- Mr Ladewig has dealt with this aspect within the unhelpful framework of a valuation made on the basis of the number of childcare places. He has used a figure for the cost of obtaining the approval. However, his valuation does not explain his opinions about the effect on value of the subject properties on a rate-per-m2 basis, no doubt because of the basis he has chosen for valuation, namely childcare places.
- Mr Ladewig’s opinion simply adds a figure on to the valuation he has arrived at on a completely different basis to the basis used by Ms Wadley. The Court could not take the figures used here by Mr Ladewig and use them to adjust those used by Ms Wadley as the Court can not be satisfied that they would be a valid method to adjust a valuation made on a rate per m2.
- Accordingly, the correctness or otherwise of the different views of s 22 held by the parties is not something which it is necessary, or helpful, to decide in order to arrive at the correct valuations in these appeals. There has not been shown to be any proper basis to depart from Ms Wadley’s approach so the Court will not do so.
- In Ms Wadley’s opinion, the sales show movement in the market. She has accordingly adjusted the sales to reflect an analysed value as if they were transacted on the date of valuation. Mr Ladewig has not made any adjustments for market movement. They jointly authored this commentary:
“The market for Child Care development sites has been strong for the last 2 years leading up to the date of valuation 1/10/2017. Business confidence was positive with multi centre owners planning new centres. Interest rates were at historic lows. Buyer interest was still strong with interstate and local buyers competing for child care and development sites. The northern Gold Coast growth corridor was experiencing strong population growth. The northern Gold Coast being largely greenfield with a low population base. Developers were enjoying the strong economic conditions. There was also strong market expectations leading up to the Commonwealth Games in April 2018 and on the back of increased investment in games infrastructure and related projects.”
- Later in the same report, Mr Ladewig stated:
“The three comparable sales evidence (sic) occurred from April 2016 into 2017, over a period of circa 18 months up to the date of valuation. The sales evidence demonstrates no market movement for child care sites during this period. Therefore, no adjustments (sic) has been made for comparison to the subjects, at the date of valuation.”
- This conclusion is that these particular three sales demonstrate that there has been no market movement for childcare sites during the stated period. It means that despite what was jointly said, and quoted above, these three sales do not support that general conclusion.
- The Court is unwilling to read the words as having other than their clear meaning. The reference to the small sample of three sales may be accepted as demonstrating no market movement, in that these three sales, if they alone are considered, do that. Aside from that being a slender basis for a broad conclusion, the jointly authored words fully justify the conclusion that the strong market supports the adjustments made by Ms Wadley. It is apparent that Mr Ladewig was carefully choosing his words in the reference to the three sales, and the Court will accept them as true but not likely to be helpful in view of the small sample used and the previous expression about the market.
- The Court accepts Ms Wadley’s view in regard to market movement and the adjustments she has made to reflect it.
Information from the purchasers
- Both valuers spoke to a person associated with the purchase of each of the sales. They recorded their exchanges, whether verbal or by email. That material was included in their joint expert report. The records show that they were told different things or believed that they were told certain things, where there is a note taken of an interview, as opposed to an email.
- It is unnecessary and unhelpful to examine all of the disparities in the recorded information. It is sufficient to note that the valuers have each favoured what they regard as the best evidence and proceeded on the basis of it.
- Despite the parties being legally represented, they have chosen not to call the obvious witnesses, those providing the information or, for instance, a corroborator to an interview.
- This choice having been made by the parties, and not explained, the Court had no hope whatsoever of getting to the truth of any of the matters of fact which are influenced by this shortcoming, one obviously accepted by the parties.
- The Court is unable to find, with any degree of satisfaction at all, what might be the truth in areas where the valuers have accepted different facts.
- The only option available to the Court is simply not to deal with these differences.
- The Court proceeds on the basis that there is no possibility of finding any facts which might influence the acceptability of any part of Ms Wadley’s valuation in this area of her analysis.
- The Court accepts the analysis and valuations of Ms Wadley as the best evidence before it. The result is that the valuations arrived at by her are the correct ones as required by 170(b) of the Act.
- The Court notes that these valuations are all significantly higher than those issued by the respondent, the Valuer-General, and which were unchanged on objection.
- The Court also notes it has become common in relatively recent times for this respondent to abandon at hearing the values arrived at on objection and to contend for a higher value.
- The respondent, as the Valuer-General, is responsible for valuing land state-wide. It is surprising that matters which reach trial are so commonly litigated on the basis that the Valuer-General starts by conceding that the valuation process, used for all valuations, not just those that come to this Court, but all those that arrive in letter boxes annually, has produced a valuation which he is not going to attempt to defend. The Valuer-General then calls a valuer to produce a valuation well above the value that the usual process has produced.
- As a model litigant and an office holder under the Act, the Valuer-General would not have any interest in discouraging appeals by meeting them with a higher valuation, so the Court is sure that such would never be done. Appearances are, however, not unimportant. In cases where a valuation report obtained for an appeal shows a significant increase in value, it does reflect on the accuracy of the original valuation process, affecting many landowners.
- It may be useful for the Valuer-General to consider where a systemic improvement might allow accurate valuations to be more consistently made in the first place, rather than waiting for someone who is willing, and able, to appeal the valuation made.
- In cases where a valuation obtained for an appeal is higher than the figure previously arrived at, consideration could be given to issuing a new valuation, allowing a fresh review, rather than continuing with an appeal, which deprives both parties of the valuable objection process.
- Appeal LVA326-18 is allowed.
- The valuation as at 1 October 2017 of Lot 50 on RP907502 property identification number 40147372 having an area of 2,310 m2 and located at 106 Helensvale Road, Helensvale is One Million, One Hundred and Fifty Thousand Dollars ($1,150,000).
- Appeal LVA328-18 is allowed.
- The valuation as at 1 October 2017 of Lot 348 on RP869217 property identification number 7007745 having an area of 2,246 m2 and located at 182 Monterey Keys Drive, Helensvale is One Million and Eighty Thousand Dollars ($1,080,000).
- Appeal LVA355-18 is allowed.
- The valuation as at 1 October 2017 of Lot 110 on RP170978 property identification number 510748 having an area of 4,414m2 and located at 46 Mirambeena Drive, Pimpama is One Million, Four Hundred and Thirty Thousand Dollars ($1,430,000).
Land Valuation Act 2010 s19(1).
Land Valuation Act 2010 s 23.
Valuer-General v Body Corporate for Tennyson Reach Community Title Scheme 39925  QLAC 7 .
Ex 3, tab 7.
Ex 3, tab 3.
Ex 3, tab 4; Ex 3, tab 5.
Ex 3, tab 1.
T1-2 lines 22 to T1-11 line 46.
T1-11 lines 42 to 46.
Ex 3, tab 8.
Ex 3, tab 9.
Ex 3, tab 10.
Ex 3, tab 11.
Ex 3, tab 12.
T1-34 lines 45 to T1-35 line 1.
Ex 3, tab 7, p30 .
Ex 7, tab 7 p31.
Ex 3, tab 7 p69 , p70, p71.
Ex 3, tab 7 p111, p112-113.
(1981-82) 8 QCLCR 70, 76.
Ex 3, tab 8.
Ex 3, tab 7 p 30 .
Ex 3, tab 7 p 70 .
Ex 3, tab 7 p 112 .
Ex 3, tab 7 p 29 ; p 69 ; p 111 .
Ex 3, tab 7 p139 .
Ex 3, tab 7 p140 .
Multiplex 240 Queen Street Landowner Pty Ltd & Anor v Department of Natural Resources, Mines and Water  QLC 30 -.
- Published Case Name:
The Trust Company Limited v Valuer-General
- Shortened Case Name:
The Trust Company Limited v Valuer-General
 QLC 39
Member WA Isdale
13 Nov 2020