Moreton Bay Regional Council v Caseldan Pty Ltd
[2017] QCA 72
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Moreton Bay Regional Council v Caseldan Pty Ltd[2017] QCA 72
- Add to List
Moreton Bay Regional Council v Caseldan Pty Ltd[2017] QCA 72
Reported at [2018] 1 Qd R 71
Moreton Bay Regional Council v Caseldan Pty Ltd[2017] QCA 72
Reported at [2018] 1 Qd R 71
SUPREME COURT OF QUEENSLAND
CITATION: | Moreton Bay Regional Council v Caseldan Pty Ltd [2017] QCA 72 |
PARTIES: | MORETON BAY REGIONAL COUNCIL |
FILE NO/S: | Appeal No 7925 of 2016 LAC No 1 of 2015 |
DIVISION: | Court of Appeal |
PROCEEDING: | Appeal from the Land Appeal Court |
ORIGINATING COURT: | Land Appeal Court at Brisbane – [2016] QLAC 1 |
DELIVERED ON: | 24 April 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 February 2017 |
JUDGES: | Gotterson and McMurdo JJA and Bond J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – PROCEEDINGS FOR COMPENSATION – QUEENSLAND – APPEAL TO SUPREME COURT – where the applicant compulsorily acquired land from the respondent “for recreation ground purposes” – where the Land Court ordered the value of the resumed land be assessed for compensation purposes at $1.8 million – where the Land Appeal Court allowed the respondent’s appeal and determined the value of the resumed land to be $4.1 million – where the applicant seeks reinstatement of the assessment ordered by the Land Court of $1.8 million – whether the Land Appeal Court erred in law in its determination – whether the application for leave to appeal should be granted ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – CONTROL OF PARTICULAR MATTERS – ROADS – where the resumed land was surrounded by land owned by the applicant within a Sports and Recreation Zone – where the applicant made a material change of use application to itself in relation to this land for development purposes – where the application included the construction of an internal road which would provide access to the resumed land – where the Land Appeal Court found that the Land Court member erred in holding the concurrence agency could not impose an access condition on the applicant’s development application under the Sustainable Planning Act 2009 (“SPA”) – where the Land Appeal Court adopted by analogy the decision in Intrapac Parkridge Pty Ltd v Logan City Council (“Intrapac”) – where the applicant contends that the decision in Intrapac would suggest to a prudent purchaser that the prospect of an access condition being imposed on the applicant was “highly likely” – where the applicant contends that the facts in Intrapac are materially different to the current matter – where the applicant contends that the Land Appeal Court thereby erred in reaching a view of what a hypothetical purchaser would think – whether the Land Appeal Court erred in adopting Intrapac by analogy – whether the alleged error amounts to an error of law ENVIRONMENT AND PLANNING – ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – GENERALLY – CONSIDERATION OF PLANNING SCHEMES – where the resumed land was surrounded by land owned by the applicant within a Sports and Recreation Zone – where the applicant made a material change of use application to itself in relation to this land for development purposes – where the proposed use conflicted with the applicable planning scheme – where s 326 SPA requires an assessment manager’s decision not to conflict with the applicable planning scheme unless there are sufficient grounds to justify departure – where the applicant contends the Land Appeal Court had regard to the zoning of land in contemplating the application’s prospect of success – where the definition of “grounds” in Schedule 3 SPA does not include the zoning of land – whether the Land Appeal Court incorrectly interpreted the SPA provisions as allowing an assessment manager to take zoning into account – whether the Land Appeal Court erred in envisaging that a hypothetical purchaser would have regard to zoning as an obstacle to obtaining approval – whether the alleged errors amounted to errors of law REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – OFFERS – where evidence of nine unaccepted offers for the resumed land was adduced before the Land Court member – where the Land Court member placed no weight on the offers because five were conditional, three were not regarded as genuine (“the Comiskey offers”) and one was aged (“the Flaskas offer”) – where the Land Appeal Court disagreed with the member’s conclusion as to the genuineness of the Comiskey offers – where the Land Appeal Court did not adopt the evidence of either of the two valuers’ respective valuations – where the Land Appeal Court’s final valuation reflected the Comiskey offers, the Flaskas offer and one of the conditional offers – whether the Land Appeal Court adopted a valuation methodology based on the unaccepted offers – whether the Land Appeal Court erred in having regard to verbal offers – whether the Land Appeal Court erred in having regard to conditional offers – whether the Land Appeal Court erred in incorrectly characterising a conditional offer as an unconditional offer – whether the incorrect characterisation vitiated the valuation of the Land Appeal Court Sustainable Planning Act 2009 (Qld), s 326 Auxil Pty Ltd & Anor v Terranova & Ors (2009) 260 ALR 164; [2009] WASCA 163, cited Caseldan Pty Ltd v Moreton Bay Regional Council [2014] QLC 53, related Caseldan Pty Ltd v Moreton Bay Regional Council [2016] QLAC 1, related Intrapac Parkridge Pty Ltd v Logan City Council [2015] QPELR 49; [2014] QPEC 48, considered Mahoney v Department of Transport and Main Roads (2014) 206 LGERA 302; [2014] QCA 356, cited MMAL Rentals Pty Ltd v Bruning (2004) 63 NSWLR 167; [2004] NSWCA 451, cited Phillipou & Anor v Housing Commission of Victoria (1969) 18 LGRA 254, cited |
COUNSEL: | C L Hughes QC, with M Batty, for the applicant D P O'Brien QC for the respondent |
SOLICITORS: | Moreton Bay Regional Council (Legal Services Department) for the applicant Corrs Chambers Westgarth for the respondent |
- GOTTERSON JA: This application arises out of the resumption of an irregularly shaped parcel of some 10.1 hectares of land adjacent to South Pine Road, Brendale in Brisbane.[1] The registered proprietor of the land was Caseldan Pty Ltd (“Caseldan”) which owned it in its capacity as trustee of a family trust associated with Gary George and Dawn Elizabeth George. The land was resumed by the Moreton Bay Regional Council (“the Council”) “for recreation ground purposes” on 20 July 2012.[2]
- Caseldan applied to the Land Court of Queensland for a determination of the compensation to be paid to it under the Acquisition of Land Act 1967 (Qld) (“AL Act”). On 9 December 2014, a member of the Land Court ordered the value of the land be assessed for compensation purposes at $1.8 million.[3]
- In January 2015, Caseldan appealed to the Land Appeal Court against the order of assessment.[4] The Land Appeal Court allowed the appeal. On 15 June 2016, it published reasons for judgment by which the compensation to be paid to Caseldan was determined to be $4.1 million. Formal orders made on 24 June 2016 gave effect to that determination.[5] They also made provision for assessment of costs attributable to stamp duty and disturbance, for interest and for payment of costs of the appeal and at first instance. It is unnecessary for present purposes to detail those other orders.
- On 4 August 2016, the Council filed an application for leave to appeal to this Court pursuant to s 74 of the Land Court Act 2000 (Qld) against the orders made by the Land Appeal Court.[6] The reasons advanced by the Council as justifying a grant of leave focus upon the determination of compensation at $4.1 million.
- The application for leave was supported by an affidavit of Mr A J Conaghan sworn on 4 August 2016 to which was exhibited a proposed notice of appeal.[7] The proposed grounds of appeal replicate the reasons advanced in the application for leave. The relief sought includes reinstatement of the assessment ordered by the Land Court of $1.8 million.
- The application for leave was heard on 17 February 2017. At that time, full argument was received with respect to the reasons advanced for the grant of leave and the identical proposed grounds of appeal.
The resumed land and adjoining lands
- The resumed land is on the eastern side of South Pine Road, a short distance north of the Cash’s Crossing Bridge over the South Pine River. It has the appearance in shape of a reversed letter C with upper and lower arms having frontages adjacent to South Pine Road at their western extremities. At the date of resumption, the resumed land was zoned for sport and recreation under the Pine Rivers Plan 2006 (“2006 Plan”).[8] It was being used as a ten hole golf course with some associated facilities and a restaurant. The land falls gently east from South Pine Road towards the South Pine River. It is crossed by a power line easement. About one and a half hectares of it, along the northern part of the eastern boundary, is subject to flooding.
- Topographical features preclude vehicular access to the southern arm of the land closer to the bridge. Vehicular access to the northern arm was available for those using the golf course. The access was via a short service road on the eastern side of South Pine Road.
- Enclosed within the northern and southern arms of the resumed land are two regularly-shaped parcels of land, together referred to as the Comiskey land, each of which has good access to South Pine Road. In 2009, approval was granted for the development of the southern parcel for a hotel and motel. At that time, this land was included in the Sport and Recreation zone. By the time of the subject resumption, a hotel, but not a motel, had been built. Also, at that time, an appeal to the Planning and Environment Court in relation to an application for a development approval for a supermarket on the northern parcel was unresolved.
- To the north and east of the north-eastern corner of the resumed land is a large parcel of land which the Council owns and has developed as the South Pine Sporting Complex (“SPSC”). There is a strip of Council-owned land (“Council road”) which runs along the northern border of the resumed land. It links the SPSC to South Pine Road at one end. The Council road swings north through the SPSC and connects to an unmade public road, Cribb Road, at the other end. Cribb Road runs east-west and joins South Pine Road at its western end. The Council road is gated at each end to prevent “rat running” by users of South Pine Road.
- In 2007, the Council purchased land (“Murphy land”) to the west of its SPSC land and bordering South Pine Road, for expansion of the complex. The Murphy land and the SPSC land were also in the Sport and Recreation zone. On 14 June 2012, the Council applied to itself for a preliminary approval for a material change of use for these lands. Features of the application included an expansion of the sporting facilities, use of the Council road for access to South Pine Road (“Access A”) and significant commercial development on part of the Murphy land immediately north of Access A.
The basis of valuation and the valuation adopted by the Land Court
- The Land Court member found that, at the date of resumption, a hypothetical prudent purchaser would have considered that the highest and best use of the resumed land was for sport and recreation purposes. He adopted a valuation of $1.8 million made by Mr J Gillespie, a valuer engaged by the Council, which was prepared on the basis that use as a 10 hole golf course was the highest and best use. Mr Gillespie arrived at an amount of $1.5 million ($150,000 per hole) to which he added an uplift of 20 per cent ($300,000) to allow for the possibility of some further development on part of the resumed land adjacent to a veterinary surgery in the vicinity of South Pine Road.[9]
- In making the finding as to highest and best use, the Land Court member rejected the proposition as to highest and best use that the valuer engaged by Caseldan, Mr T J Rabbitt, had adopted for the basis of his valuation. The proposition was that the highest and best use was for a mix of residential, commercial, sport and recreation uses in line with a plan prepared by Mr G Ovenden, town planner. Mr Rabbitt’s valuation on the basis of that use was $5,555,000. He ventured an alternative highest and best use as playing fields for which his valuation was $3,535,000.[10]
- Evidence of offers made for the resumed land, including three offers ranging between of $4 million and $4.5 million made by the owner of the Comiskey land, were not taken into account for any purpose by the Land Court member.
The basis of valuation and the valuation adopted by the Land Appeal Court
- The Land Appeal Court found that the Land Court member had erred in a number of respects. With regard to highest and best use, the Land Appeal Court considered that the member’s conclusion that a hypothetical prudent purchaser of the resumed land would have considered that the likelihood of obtaining appropriate access for a mixed use development was “very low”, was erroneous.[11]
- The Land Appeal Court noted in paragraph 117 of its reasons, that, putting access to one side, the evidence adduced in the case warranted a conclusion that a potential purchaser would have considered that there were good prospects of showing grounds sufficient to justify an approval of a mixed use development, notwithstanding conflict with the applicable planning scheme, and, hence, good prospects of obtaining a development approval for it.
- In the paragraph which immediately follows, the Land Appeal Court addressed the impact of access on the mind of the hypothetical purchaser. In this paragraph, the court expressed its conclusions with respect to the potential for mixed use development of the resumed land as follows:
“[118]The hypothetical potential purchaser would have recognised that the major obstacle to such a development on the resumed land was the difficulty in obtaining appropriate access. Such a purchaser, while considering that access might become available as a result of the SPSC development, would have recognised that there was a significant risk in achieving access in this fashion; and also a risk that to achieve this access relatively quickly might involve additional cost. Such a purchaser would also have recognised some prospect of achieving an arrangement with Comiskey; or alternatively of reselling the land to Comiskey for an extension of its development. The purchaser would have considered that there were good prospects of carrying out a mixed use development, but subject to the risks referred to.”
Accordingly, the highest and best use adopted by the Land Appeal Court was for a mixed use development with due acknowledgement of the risks inherent in obtaining a development approval for it, particularly those associated with obtaining appropriate access.
- Whilst that was the highest and best use that Mr Rabbitt had employed, the Land Appeal Court considered that his valuation did not adequately reflect the “disadvantages” of the resumed land compared with comparable sale properties referenced by him. His valuation was therefore not adopted.[12]
- Mr Gillespie had undertaken an alternative valuation employing the same highest and best use. He valued the resumed land on that basis at $3,894,000 (approximately $39.00 per square metre) which he reduced by 50 per cent to $1,950,000 (rounded out) on account of access difficulties and the cost of upgrading certain intersections. The Land Appeal Court identified what it regarded as difficulties with Mr Gillespie’s valuation and it did not adopt it either.[13]
- Having determined not to adopt either valuations, the Land Appeal Court observed that it was necessary for it to make some form of judgment of value, intended to reflect the relative value of the resumed land when compared to other sale properties.[14] The Court reached the following conclusion:
“[133]Bearing in mind the matters that have been discussed, it would seem appropriate to determine the value of the land at $4.1 million. This would better reflect the differences between the resumed land and the sale properties, than did either Mr Rabbitt’s valuation or that of Mr Gillespie; and would not be inconsistent with the unconditional offers to purchase the resumed land.”
The appellant’s criticism of the Land Appeal Court’s decision-making technique
- The first matter addressed by senior counsel for the Council in oral submissions concerned the decision-making technique adopted by the Land Appeal Court. This matter was not the subject of a ground of appeal; nor had it been the subject of written submissions. It is convenient to deal with it at this point.
- In the course of oral submissions, senior counsel for the Council accepted[15] that the principles as to how the Land Appeal Court may deal with a decision of the Land Court are correctly set out in Mahoney v Department of Transport and Main Roads.[16] There, the observations were made, firstly, that an appeal to the Land Appeal Court is by way of rehearing rather than by way of strict appeal as in House v The King[17] and, secondly, that an appellant to the Land Appeal Court may succeed only by establishing that the decision of the member of the Land Court resulted from factual, legal or discretionary error.[18]
- The complaint made of the approach of the Land Appeal Court to the matter was that it treated it as an appeal de novo, and not as an appeal by way of rehearing. It was submitted that the Land Appeal Court “set out from scratch” and that it did so “because it thought it identified errors of law which did not exist”.[19] In my view, this submission misconceives both what the Land Appeal Court did and when that court may intervene where factual error is revealed.
- A perusal of the reasons for judgment of the Land Appeal Court reveals that it gave extensive consideration as to whether the Land Court member had erred with respect to factual matters. It is sufficient to illustrate that it did so by referring to significant instances of where that occurred.
- First, the Land Appeal Court concluded that the member had erred in finding that the offers made by the owner of the Comiskey land were not genuine. That conclusion, the Land Appeal Court said, was based entirely on one document and it failed to take into account the evidence of Ms George in relation to them. It reached a contrary conclusion on the whole of the evidence.[20]
- Secondly, under the heading “Errors relating to highest and best use” the Land Appeal Court analysed in detail the reasoning underlying the member’s determination of highest and best use.[21] In that process, errors were identified, in particular, errors with respect to availability of access. The basis for the finding of error was explained in each instance. Ultimately, a different conclusion as to highest and best use was reached.
- In so far as it implies that the Land Appeal Court approached the matter de novo and without concern for whether the member of the Land Court had erred, the Council’s submission is therefore patently incorrect. A second implication in the submission is also incorrect.
- This implication is that, as a matter of law, the Land Appeal Court may substitute a finding of fact made by a member of the Land Court with its own finding, only if it first finds that there was no evidence at all for the finding made by the member. That is not so. For if it was, the Land Appeal Court could only intervene if the member had erred in law in making the factual finding.
- It is well established that a finder of fact will err in law if there is no evidence to support a fact found. But as decisions such as Mahoney affirm, the Land Appeal Court may intervene for factual, legal or discretionary error. Thus, where a factual finding has been made, the Land Appeal Court’s jurisdiction to intervene is not limited to the circumstance where there has been an error of law because there is no evidence to support the finding. The Land Appeal Court may intervene and substitute its own finding if it is of the view that the finding below was erroneously made because, for example, no or insufficient weight was given to evidence which would lead to a contrary, or otherwise different, finding.
- In my view, there is no justification for imposing upon the Land Appeal Court’s review jurisdiction, constraints applicable to the review by courts of decision-making for legal error. Moreover, there are aspects to the way in which the Land Court is to exercise its jurisdiction which resist such an imposition. They are that the Land Appeal Court is not bound by the rules of evidence; that it may inform itself as it sees appropriate; and that it is to act with equity and good conscience.[22]
- In summary, the Council’s criticisms of the Land Appeal Court’s decision-making technique are quite unfounded.
An appeal to the Court of Appeal
- Section 74(1) of the Land Court Act affords a right of appeal to this Court from a decision of the Land Appeal Court on limited grounds, namely, error or mistake of law by the Land Appeal Court, absence of jurisdiction on the part of the Land Appeal Court to make the decision, or exceedance of jurisdiction by the Land Appeal Court in making the decision. A party may appeal only with the leave of this Court or a judge of appeal.[23]
- A decision whether a grant of leave is to be given in this matter will be highly influenced by the prospects that the appeal has of success. I now turn to consider the Council’s grounds of appeal for the purpose of assessing their prospects of success.
Grounds of appeal
- The notice of appeal lists some eight grounds of appeal which allege error of law on the part of the Land Appeal Court. Some of them allege more than one error. However, these grounds were not addressed individually and in order in the Appellant’s Outline of Submissions or oral submissions. Instead, senior counsel for the Council distilled from them three principal errors of law which, it was submitted, tainted the decision of the Land Appeal Court. Counsel for both sides directed these submissions to these principal errors. I propose to consider each of these errors in the order in which it was addressed by senior counsel for the Council.
Access – alleged misconstruction of Intrapac decision
- The Land Court member gave consideration to the Council’s material change of use application and to whether an access condition might be imposed in relation to approval of it.[24] He held that the Council could not be required by the Planning and Environment Court to allow access to the resumed land over the Council road as a condition of approval of its application.[25] The Appeal Court concluded that the member erred in so holding.
- In reasoning to that conclusion, the Land Appeal Court said:
“[86]The power to approve a development application is found in s 324 of the Sustainable Planning Act 2009 (QLD) ("SPA"), which includes a power to approve an application subject to conditions decided by the assessment manager. Moreover, the assessment manager must impose any condition required by a concurrence agency. The Council's development application identified DTMR as a concurrence agency. Given that DTMR was responsible for South Pine Road, the question whether the Council's road should be made available for access to it may not have fallen to the Council (as assessment manager) to decide. Moreover, the evidence showed that DTMR had been supportive of a loop road system since about 2009 (and up to the time of the resumption).
[87]The power to impose a condition in respect of a development application such as that made by the Council for the expanded SPSC is regulated by s 345 of the SPA. A condition must be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or it must be ‘reasonably required in relation to the development or use of premises as a consequence of the development’.
[88]A similarly worded provision was considered by Rackemann DCJ in Intrapac Parkridge Pty Ltd v Logan City Council & anor (Intrapac), where his Honour said,[26]
‘There is, of course, no requirement for an assessment manager or, on appeal, the court to impose each and every condition which might pass one of the above tests. There is a relatively broad residual discretion as to what lawful conditions to impose on the approval at hand.[27] That discretion, whilst broad, must be exercised for a proper planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the relevant authority.[28] In the case of the SPA, the assessment manager’s decision, including a decision to approve subject to conditions, must be based on the assessment of the application under Division 2 of Part 5. That includes assessment by reference to the planning scheme.’
[89]It can at once be seen that conditions are to be determined by reference to what is ‘a proper planning purpose’. The rights and wishes of an individual land owner-applicant, as such, do not determine the proper exercise of the power. It might be observed that the conditions to be imposed by a concurrence agency are similarly regulated. The issue in Intrapac was whether the developer should be required to dedicate and construct a road through its development site at an early stage of its proposed development, which would be of advantage to an adjoining land owner who was a party to its appeal. The position taken by the developer could have indefinitely delayed the development of adjoining land. A condition was imposed requiring the dedication of the whole of the road through the developer’s site as part of the first stage of the development. His Honour said,[29]
‘Moreover, having regarding to the provisions of the Planning Scheme, the approval ought make provision for appropriate infrastructure as well as links and relationships between Australand’s development and the surrounding area in a way which is consistent with the realisation of the development intentions for the area in accordance with the (Parkridge Structure Plan). Insofar as timing is concerned, the commencement of development in this area by Australand provides the opportunity for further orderly development to occur in a timely way.’
[90]There are plainly factual differences between lntrapac and the circumstances relevant to the development of the SPSC. Nevertheless, the case demonstrates that, in appropriate circumstances, a land owner may, against its will, be required to make provision for a road, for the benefit of the potential development of adjoining land.
[91]The decision in Intrapac was relied upon by Caseldan. There was no submission that it was incorrectly decided. It follows that the learned Member erred in holding that the Council could not be required by the Planning and Environment Court to allow its road to be used for access to the resumed land.” (footnotes, other than citations, omitted)
- Senior counsel for the Council made it clear that he did not suggest on appeal to this Court that Intrapac was incorrectly decided.[30] He did not propound that, as a matter of law, such a condition could not be imposed by the Planning and Environment Court and that the member was therefore correct. Thus, it was not put that the Land Appeal Court itself erred in law in holding that the member was in error in this respect.
- Further, in oral submissions, senior counsel for the Council did not renew a written submission that the Land Appeal Court erred in this context because it ignored that an owner of land cannot be compelled to act upon a development approval either within a particular timeframe or at all.[31] This submission is one that could not be sustained. There is no suggestion in the Land Appeal Court’s reasons that it acted upon a footing that the Council could be forced to provide access if it never acted upon a development approval granted subject to an access condition.
- I mention at this point, that in oral submissions, senior counsel for the Council suggested that the Land Appeal Court understood Intrapac to mean that there was a “high probability” here that the Council would be required to provide access by way of a condition.[32] This suggestion is ill-founded. The Land Appeal Court did not express probability as being at that degree or anything like it. As the above-quoted paragraph 118 of its reasons shows, the Land Appeal Court thought that a hypothetical potential purchaser, while considering that access might become available as a result of the SPSC development, would have recognised that there was a significant risk in achieving access in that fashion.
- The complaint underlying this ground of appeal, as explained by counsel at the hearing, is that a prudent purchaser who read Intrapac correctly, would have thought that the prospect of such a condition being imposed on the Council was “highly unlikely”.[33] That was because it was not supported by a road designated on the planning scheme in the 2006 Plan and was not supported by a necessity to develop land in accordance with applicable planning documents.[34]
- So explained, this ground is not concerned with the interpretation, articulation or application of statutory law or legal principle by the Land Appeal Court. It is, in substance, a criticism of reasoning by analogy adopted by the Land Appeal Court. As I would summarise it, the criticism is based on the following series of propositions: that the decision in Intrapac needs to be understood in its own factual context; that the facts of the present case are not analogous with, and are materially different from, those in Intrapac; that, as a consequence, the result in Intrapac is not a guide by analogy to what might have happened in litigation arising out of the Council’s application; and that the Land Appeal Court erred in failing to appreciate the differences and in reaching the view it did of what a hypothetical purchaser would draw from the case. The differences in fact highlighted for the Council in oral submissions are conformity of the road in the subject development proposal with a new major road in the applicable planning scheme and express provision in the planning scheme for the orderly and efficient provision and integration of land use and infrastructure.[35]
- To my mind, this criticism does not embrace any alleged error of law on the part of the Land Appeal Court. Central to it is the contention that the court failed to recognise that certain factual circumstances upon which the decision in Intrapac depended, were not present in the case before it. Such a failure has the character of error of fact, and not of law. As such, it cannot ground an appeal to this Court. So also for the consequential alleged error in adopting Intrapac as factually analogous for the purpose of drawing a factual conclusion as to what a hypothetical purchaser would think. For this reason, the criticism cannot found a viable ground of appeal.
- That aside, the criticism is, in my view, of dubious merit. In the first place, the Land Appeal Court did acknowledge that there were plainly factual differences between Intrapac and the circumstances relevant to the development of the SPSC.[36] Secondly, as to the two differences highlighted for the Council, whilst it may be accepted that there is no road on the planning scheme here comparable with the new major road in that case, Division 2 of the 2006 Plan does contain comparable provisions for the orderly and efficient development of transport infrastructure as part of overall outcomes for the urban locality in question.[37]
Zoning weight – alleged adoption of an erroneous test
- I have referred to paragraphs 117 and 118 of the Land Appeal Court’s reasons. Those paragraphs are preceded by the following paragraphs which appear under the heading “Prospects of obtaining planning approval for a mixed use development”:
“[114]The submissions for the Council relied on ‘a public need for the golf course on the (resumed) land’. It was submitted that the learned Member did not accept that the planning scheme had been ‘overtaken by events’; and that the inclusion of the land in the Sport and Recreation Zone was entirely appropriate, in view of the historical use of the land as a golf course.
[115]It may be accepted that the financial success of the golf operation demonstrated that it was of some advantage to some members of the public; an advantage which, to some extent, would be reduced by development in accordance with the Ovenden plan (though this also included a nine hole golf course). However, there is another golf course immediately north of the Murphy Land. Mr Simonic accepted that his analysis in the Comiskey appeal would lead to the conclusion that there was no need to retain the resumed land in the Sport and Recreation Zone. On the other hand, there was evidence of a general kind to demonstrate that development of the resumed land would be of benefit to the community. The interest of developers, as manifested by the offers, in purchasing the land from Caseldan, expressed over a number of years, supports this view. As was said by Senior Counsel for the Council ‘this is a fast-growing part of Brisbane’.
[116]The weight to be given to the zoning of the land was likely to have been seen as less than it might otherwise be, given, as the learned Member found, that ‘the true planning landscape was not the same as the zoning’. There were advantages relating to convenience and co-location of uses, by reason of the proximity of the Caseldan land to the Comiskey land. There was also the prospect of some complementarity between commercial development on the resumed land, and the SPSC.” (footnotes omitted)
- Focusing on paragraph 116 of the reasons, senior counsel for the Council submitted that the Land Appeal Court had erroneous applied provisions of the Sustainable Planning Act 2009 (Qld) (“SPA”). Specifically, it was said that the court had imported a test of weight to be given to the zoning of land in the event of a conflict between a proposed use for it and the applicable planning scheme; yet, properly construed, the statutory provisions do not allow for such a test.
- In developing this submission, counsel referred the Court to the provisions in s 326(1) SPA which require an assessment manager’s decision or a development approval application, other than a preliminary approval application,[38] not to conflict with a relevant instrument, subject to certain exceptions and, in particular, to exception (b), namely, that there be sufficient grounds to justify the decision despite the conflict. The observation was made that the test of sufficiency of grounds does not contain an element of giving weight to the zoning, having regard to the applicable definition of “grounds” in Schedule 3 SPA as meaning matters of public interest and not including the personal circumstances of the applicant, owner or interested party.
- It was further submitted that a hypothetical purchaser of the resumed land would have been mindful of these provisions because of the role that public interest considerations had played in litigation in the Planning and Environment Court in relation to the application for development approval for a supermarket on the northern parcel of the Comiskey land. A substantial interim decision had been given in that proceeding on 24 October 2011[39] in which matters of public interest, and the evidence adduced relevant to them, were given detailed consideration.
- I accept that the statutory provisions to which the Council referred, operate as it submitted. However, I do not understand the Land Appeal Court in paragraph 116 to have been speaking to how those provisions do operate and, specifically, to the issue of what an assessment manager is to take into account in deciding where there is a sufficiency of grounds to justify a decision despite conflict. Nor do I understand the Land Appeal court to have been proposing as the applicable methodology, an assessment methodology that dispenses with any of the statutory provisions and substitutes them with a methodology which incorporates giving a weighting to current zoning.
- My reading of paragraph 116 is that the Land Appeal Court was expressing its view of how a hypothetical purchaser would weigh the current zoning of the resumed land as a counterbalance to factors favourable to obtaining mixed use development approval for it. The court envisaged that the hypothetical purchaser would undertake that exercise in forming his or her own conclusion as to prospects of successfully obtaining approval.[40]
- The way in which the court expressed its view supposes that such a purchaser would ask himself or herself how much of an obstacle would the current zoning be to obtaining approval. That is a question that such a purchaser would legitimately ask. However, neither the asking of the question nor the answering of it involves a proposition that the current zoning is to be weighed in undertaking a s 326(1)(b) assessment of sufficiency of grounds to justify a decision in favour of approval despite a conflict with a relevant instrument, or, for that matter, a proposition that displaces s 326(1)(b) from the assessment process.
- So understood, the conclusion expressed in paragraph 116 is a conclusion with respect to a matter of fact, namely, the weight that a hypothetical purchaser would give to the current zoning in carrying out the balancing exercise to which I have referred. If error were made in arriving at that conclusion, it would be one of fact and not one of law. Such an error could not found a viable ground of appeal to this Court.
- In my view, the error of law alleged here is based upon a misreading into paragraph 116 of propositions of law that it neither articulates nor adopts, expressly or impliedly. It remains to note that there are, in any event, clear indications in the reasons of the Land Appeal Court that it well understood the role that s 326(1)(b) has to play. It is sufficient in this regard to refer to the discussion of sufficient grounds to justify an approval at paragraphs 108 and 117 of the reasons.
Alleged errors with respect to offers
- Evidence of offers: Evidence of nine offers for the resumed land was adduced before the Land Court member. It is common ground that five of these were conditional, usually on obtaining a development approval. One of the others, which was made by Flaskas Pty Ltd on 2 June 2005 (“the Flaskas offer”), is the subject of an alleged error on the part of the Land Appeal Court. The error relates to the categorisation of that offer as an unconditional one. The three other offers were two unconditional offers made by the owner of the Comiskey land on 10 and 16 August 2006 respectively and a further unconditional offer made by the same owner in January 2009.
- The Land Court member concluded that the offers by the owner of the Comiskey land could not be regarded as genuine offers representing a proper indication of value;[41] however, he did observe that if he had regarded them as genuine, then, following Phillipou & Anor v Housing Commission of Victoria,[42] he would have taken them into account as relevant. The member also held that the Flaskas offer was to be given no weight because it was aged, having been made in 2005, and that the other offers ought to be given no weight because they were conditional.[43] These conclusions were challenged in the Land Appeal Court.
- Land Appeal Court’s reasons with respect to offers and valuation: In paragraphs 61 to 65 inclusive of its reasons, and under the heading “Relevance of offers”, the Land Appeal Court discussed statements of principle with respect to the relevance of offers upon which their admissibility depends for the purpose of curial determination of the value of land. Relevantly for present purposes, the court quoted from the judgment of Spigelman CJ in MMAL Rentals Pty Ltd v Bruning,[44] passages in which his Honour repudiated a blanket rule of exclusion of offer evidence and observed that, absent expert evidence to the contrary, an offer “clearly establishes a floor”.
- Also quoted was a substantial extract from the judgment of Buss JA in Auxil Pty Ltd & Anor v Terranova & Ors[45] in which his Honour set out several propositions in relation to the admissibility of unaccepted offers for proof of the value of land which he had drawn from his survey of the authorities. The extract included the following paragraphs:
“[46]First, the general rule of admissibility is that an unaccepted offer to purchase land is not admissible as 'direct evidence' of its value.
[47]Secondly, the general rule does not exclude evidence of an unaccepted offer in each and every case.
[48]Thirdly, where evidence of an unaccepted offer to purchase land is sought to be tendered, the purpose for which the tender is made should be ascertained and analysed.
[49]Fourthly, although an unaccepted offer to purchase land is not admissible as 'direct evidence' of its value, the evidence may be admissible, in a particular case, for limited or general purposes.
[50]Fifthly, the limited or general purposes for which evidence of an unaccepted offer may be admissible include establishing:
- that later sales sought to be relied on in assessing the value of the land were not forced sales;
- the existence of a person who might be prepared to pay more than the ordinary market value of the land;
- the demand in the market for the land in the context of evaluating whether a mortgagee of the land breached its duty of good faith in exercising its power of sale;
- the special potentiality of the land for a specific purchaser where the offer has been made by that purchaser and in respect of that land.
Also, an unaccepted offer to purchase land may be admissible for the general purpose of providing some assistance in determining the lower limit of the market value of the land in the case of a purchaser's actual unconditional open offer to purchase at a specific price or for the limited purpose of checking the methodology adopted by an expert valuer in his or her evidence. The illustrations I have given are not, of course, intended to be exhaustive.”
I note that no issue is taken on appeal here with respect to the discussion of principle by the Land Appeal Court under the heading “Relevance of offers”.
- The Land Appeal Court disagreed with the member’s conclusion as to the genuineness of the offers made by the owner of the Comiskey land (“the Comiskey offers”). It found that they were genuine.[46]
- Having made its finding as to highest and best use, the Land Appeal Court proceeded to consider the value of the resumed land under the heading “Valuation on basis of mixed use development”. I have set out the concluding paragraph of the court’s consideration, paragraph 133, in a summary of the approach taken by the court to valuation. The paragraphs which precede it provide a necessary context for discussion of the alleged errors with respect to offers.
- In those paragraphs, the Land Appeal Court reasoned as follows:[47]
“[119]Both valuers relied on the purchase by Comiskey of the adjoining land, and the purchase of the Murphy land. Their analyses resulted in rates per square metre, from the sales, of approximately $61 and $71. Mr Rabbitt described these two sales as the best evidence of value for the resumed land.
[120]From his sales analysis, Mr Rabbitt applied a rate of $55 per square metre to the resumed land, resulting in a market value of $5.5 million.
[l21]The Comiskey land did not have the same difficulty in obtaining appropriate access as the subject land. It had a better frontage to South Pine Road, and a better shape for development. Both the Comiskey and the subject land were affected by the power easement, and there does not seem to be any relevant distinction between them in this regard. Both properties were affected by the overland flow path. The land adjoining the eastern boundary of the resumed land was below the Q100 flood line, though the Comiskey land was not similarly affected. Otherwise, the evidence does not show that topography was a material distinction. The Comiskey land was somewhat smaller in area. At the time when Comiskey purchased the adjoining land, all of the nearby land on the eastern side of South Pine Road was zoned for sport and recreation, and there had not been a development approval for a higher and better use. It is likely that the risk of obtaining such an approval for the Comiskey land would then have been seen as higher than for the subject land at the date of the resumption.
[122]The Murphy land had clearly superior frontage to South Pine Road. It was regular in shape. It did not suffer from the same access difficulties as those facing a developer of the resumed land. There was no suggestion that it was flood affected. The area of land was similar to that of the resumed land. The sale was to an adjoining owner, no doubt for the development of the land in conjunction with adjoining land for the SPSC. Additional flexibility in relation to access to this land was readily available to the Council, on its road. It is likely that the purchase was, in part, for sport and recreation purposes.
[123]Mr Rabbitt’s valuation does not adequately reflect the disadvantages of the resumed land, when compared to the sale properties, particularly those relating to access, and should not be adopted. The unconditional offers referred to previously may be considered as a check; but reference to them does not lead to a different conclusion.
[124]Mr Gillespie took what might be described as a two-stage approach to valuing the resumed land on the basis of its potential tor a mixed use development. In the first stage, Mr Gillespie valued the land at $3,894,000, or approximately $39 per square metre. In the second stage he reduced this value by 50 per cent, because of access difficulties, and the cost of upgrading intersections, resulting in a valuation of $1,950,000.
[125]In the first stage, Mr Gillespie valued 7.21 hectares of the land (excluding the power line easement and the area below the Q100 flood line), at $500,000 per hectare, or $50 per square metre. The balance of 2.89 hectares, affected by the powerline easement and/or flooding, he valued at $100,000 per hectare, or $10 per square metre.
[126]There are difficulties with Mr Gillespie's approach. A rate of $50 per square metre, ignoring the cost of upgrading intersections and excluding powerline easements does not sit well with the Comiskey sale at $55 per square metre, for land much of which was affected by the powerline easement, and where the developer faced costs of upgrading the intersection. Indeed to assess some of the balance area (apparently 1.3 hectares) at $10 per square metre when it was only affected by the powerline easement seems particularly unsatisfactory by comparison with the sale. Similarly, his rate for the area not affected by the powerline easement or flooding, and excluding consideration of access difficulties and the cost of upgrading intersections, is difficult to reconcile with the Murphy sale. The area to which the $50 per square metre rate was applied would, on the Ovenden plan, be intended for more intense development, whether commercial or residential. A substantial part of the Murphy land was undoubtedly intended for sport and recreation use. The Murphy land inevitably required intersection upgrading, a factor excluded by Mr Gillespie when adopting his rate of $50 per square metre.
[127]The valuation derived by Mr Gillespie is substantially below any of the unconditional offers previously referred to.
[128]It follows that Mr Gillespie’s value should not be adopted.
[129]In the end, it is necessary to make some form of judgment, intended to reflect the relative value of the resumed land, when compared to the sale properties.
[130]While some assistance may be derived from the unconditional offers referred to earlier, that assistance is limited. Three of the offers were by an adjoining owner. A similar situation was considered in Phillipou, on an appeal from a determination of the value of resumed land by the Victorian Land Valuation Board of Review, the appeal being on a question of law. The Board had considered evidence of an offer to purchase the land by an adjoining owner, taking into account the likelihood that the adjoining owner would be willing to pay more than what would otherwise be the market value of the land. Nevertheless, it did not assess the value of the land at the amount offered by the adjoining owner. Barber J said, ‘… just how much additional value should be allowed for this factor was a question of fact for the board’.
[131]Obviously, had Comiskey made a genuine offer to purchase the resumed land close in time to the resumption date, that offer would carry considerable weight, at least as a floor for the market value. While Comiskey had made three previous offers, they were, to varying degrees, earlier in time; and a sale then would have given Comiskey flexibility in planning for future development. It does not seem appropriate, therefore, to adopt them as establishing a lower limit for the value of the land at the date of resumption. Nevertheless, they remain of some relevance.
[132]The Flaskas offer was made for the use of the land as a golf course. It was made before there was any approval for a higher form of development on the eastern side of South Pine Road. It would seem that the market value of the land at the time of resumption would have to be higher than this offer.
[133]Bearing in mind the matters that have been discussed, it would seem appropriate to determine the value of the land at $4.1 million. This would better reflect the differences between the resumed land and the sale properties, than did either Mr Rabbitt’s valuation or that of Mr Gillespie; and would not be inconsistent with the unconditional offers to purchase the resumed land.” (footnotes omitted)
- Alleged erroneous use of offers generally: In oral submissions, senior counsel for the Council acknowledged that unaccepted unconditional offers may have relevance “as a check”.[48] This acknowledgement accords with the role accorded to such offers in the fifth proposition stated by Buss JA although, of course, it does not articulate the full extent of the proposition.
- Building on that acknowledgement, counsel submitted that, here, the Land Appeal Court did not use offers merely as a check of the valuation arrived by either valuer or of the methodology adopted by them in arriving at it. It was also submitted that, instead, the Land Appeal Court had used the offers as the primary evidence for determining the value of the resumed land. That it did so is a fact, it was argued, to be inferred from two factors: firstly, the differences in amount, in absolute terms, between the two valuers’ respective valuations and the determined value of $4.1 million, and, secondly, the extent to which those differences exceed the differences between $4.1 million and certain of the offers, particularly the Flaskas offer ($3.69 million), the Comiskey offers ($4 million, $4.2 million and $4.5 million respectively), and a conditional offer subject to development approval for mixed density residential development ($4.5 million) made by Consolidated Properties Pty Ltd in July 2011.[49] To use the offers in that way, it was submitted, was wrong.
- Whether the Land Appeal Court did err as suggested, is dependent upon the validity of the inference that the Council has invited this Court to draw. If the inference is unsound, this allegation of error falls away.
- In my view, the inference is not one that ought to be drawn. In the first place, a study of the Land Appeal Court’s reasons reveals that it did not adopt either of the values arrived at by Mr Rabbitt[50] or Mr Gillespie.[51] As I have noted, the court considered that Mr Rabbitt’s valuation did not adequately reflect the disadvantages of the resumed land when compared with the sales identified by him[52] and that there were difficulties with Mr Gillespie’s mixed use development-based valuation which it detailed in paragraph 126 of its reasons.
- What the Land Appeal Court then did was to make its own judgment of the value of the resumed land. Importantly, in paragraph 129 of its reasons, the court explained that its judgment was one intended to reflect the relative values of the resumed land when compared with the sale properties to which the valuers had referred.[53] In this way, the Land Appeal Court expressly indicated that the valuation methodology it was adopting was one of comparison of the resumed land with the comparable sale properties in order to arrive at a value and in which the respective sale prices for those properties would be adjusted, as it considered appropriate, to accommodate for the differences between the resumed land and those properties. That is not, of course, a methodology in which the value is based on the unaccepted offers.
- Secondly, the Land Appeal Court at several points referred to use of the unconditional offers as a “check”. It did so at paragraph 123 of its reasons where it observed that those offers confirmed its reason for not adopting Mr Rabbitt’s value. So also with its decision not to adopt Mr Gillespie’s value.[54] A similar approach to the use of the unconditional offers is reflected in the court’s observations at paragraph 133 of its reasons that the determined value of $4.1 million “would not be inconsistent” with those offers.
- The Land Appeal Court considered that the assistance to be derived from the unconditional offers was “limited”.[55] The Comiskey offers were “of some relevance” but were not sufficiently contemporaneous in order to “establish a lower limit for the value of the land at the date of resumption”.[56] Also, for lack of contemporaneity, the Flaskas offer was one that appeared to be below market value at the time of resumption.[57]
- Thirdly, and derivatively from the second reason, the explanation given by the Land Appeal Court of how it used offers is plainly different from, and much more limited than, the use which the Council contends was made of them and which it asks this Court to infer was made of them. To draw the inference suggested would implicitly criticise the Land Appeal Court for having misstated the use which it made of the offers. I am not prepared to make such a criticism because, to my mind, there is no warrant for making it.
- Verbal offers: The Comiskey offers were verbal offers in the sense that they were spoken, and not committed to writing. In written submissions, the Council contended that those offers were incapable, upon acceptance, of giving rise to legally enforceable contracts because they did not satisfy the formal requirements of writing duly signed in s 59 of the Property Law Act 1974 (Qld), and that, therefore, each was not “a true offer”.[58]
- This submission was not renewed at the hearing. That is unsurprising. No authority was cited for it. Moreover, a proposition that verbal offers are irrelevant to the value of land and, therefore, inadmissible for the purpose of establishing it, is incompatible with the proposition endorsed in Auxil[59] that a genuine offer is relevant to the determination of market value and that the terms of, and the circumstances surrounding the offer, are matters which go to the weight to be given to the offer for that purpose.
- In my view, the Land Appeal Court did not err in having regard to the Comiskey offers, notwithstanding that they were verbal offers.
- Conditional offers: At paragraph 80 of its reasons, the Land Appeal Court ventured that offers conditional on development approval might have a “quite limited” utility for determining market value. The limited role such offers might have was put, at the highest, as one of demonstrating “in addition to interest in the land for more intense development, sufficient confidence on the part of the offerors in the prospect of obtaining a development approval that the offeror is prepared to undertake the expenditure involved in making and pursuing a development application”.
- In written submissions, the Council observed that there was no evidence about the level of confidence of those who had offered conditional contracts in this case nor about the extent of expenditure that they might have had to incur in pursuit of fulfilment of the condition or conditions.[60] In those circumstances, it was submitted, the Land Appeal Court erred in conceding any relevance to the conditional offers.
- The Council is correct to say that there was no evidence of that kind. However, in my view, it is unnecessary for this Court to resolve whether, in any given case, a conditional offer may fulfil the limited role as described by the Land Appeal Court, only if evidence of that kind is adduced. That is because, as its reasons reveal, the court did not attribute any role to conditional offers in its valuation of the resumed land.[61] To the extent that a role was given to offers, it was intentionally given to unconditional offers only.
- Categorisation of the Flaskas offer: As I have noted, the Land Appeal Court characterised the Flaskas offer as an unconditional one. The Council has submitted that this categorisation is erroneous because the offer was conditional. The Land Court member had referred to this offer as an unconditional one in apparent reliance upon oral evidence of Ms George that “there were no conditions on it”.[62] This was contrary to the Council’s submission in the Land Court.
- On appeal to the Land Appeal Court, the Council, in its outline of submissions, described the offer as conditional but did not challenge the member’s finding as erroneous.[63]
- The Land Appeal Court noted that Ms George’s evidence was not challenged in cross-examination and was not rejected by the member.[64] It then described the offer as unconditional.[65] However, the court, in its reasons, did not analyse the offer document or the evidence as it might have done had categorisation of the offer by the Land Court member as unconditional been formally challenged before it.
- The written evidence of the Flaskas offer itself was limited to the initial page of a standard form REIQ contract for houses and land which identified the land, the vendor and the purchaser and the offer price of $3,690,000.[66] In her statement, Ms George said that the Flaskas representative told her and her husband that Flaskas wanted to purchase the Caseldan land as well as the land which became the Comiskey land. The latter was then used as a driving range and was owned by a Mr Cheng. The negotiations did not progress because neither the Georges nor Mr Cheng were interested in selling.[67] In cross-examination, Ms George confirmed that Flaskas wanted to purchase both parcels of land in conjunction.[68]
- It is not clear from Ms George’s statement whether anything more than the single page was provided to her and her husband. In her statement, she did describe it as an “extract” from the contract. In any event, there was no evidence of contractual terms other than those on that page. On that limited evidence, the only finding open was that the contract offer was an unconditional one.
- However, both Ms George’s statement and her oral evidence justify a conclusion that the offer made to the Georges was itself conditional in the sense that any acceptance of it by them would be provisional and not give rise to a legally enforceable contract unless Mr Cheng also accepted the reciprocally conditional offer made to him. Thus, on the evidence, the offer made by Flaskas to the Georges was a conditional offer to enter into an unconditional contract.
- On this analysis, the Land Appeal Court did err, in categorising the Flaskas offer as an unconditional offer. The error was one of law as it concerned how a transaction, the offer, ought to be categorised according to established legal taxonomy.
- The issue that next falls for consideration is whether this error vitiated the valuation determined by the Land Appeal Court. To my mind, it did not. As I have explained, the methodology employed by the Land Appeal Court to arrive at the figure of $4.1 million did not involve reliance upon offers: it was comparative sales-based, subject to adjustment for differences. Reference to the Flaskas offer was made after the value had been determined and then only in the most limited way, the Land Appeal Court noting that it would seem that the market value of the resumed land at the resumption date would have to be higher than that offer.[69]
- Thus, the Flaskas offer did not cause the Land Appeal Court to review and then adjust the value that it had determined in order to accommodate that offer in some way or other.
- In these circumstances, I am unpersuaded that the identified legal error made by the Land Appeal Court in any way infected the value determined by it.
Disposition
- For these reasons, with the one exception in relation to the Flaskas offer, none of the alleged errors on which the Council’s application has focused, has been made out. That error, however, would not justify setting aside the Land Appeal Court’s determination of value.
- It follows, in my view, that the Council’s proposed appeal has no realistic prospects of success. Its application for leave to appeal ought therefore be refused. It is appropriate that it pay Caseldan’s costs of the application.
Orders
- I would propose the following orders:
- The application for leave to appeal is refused.
- The applicant is to pay the respondent’s costs of the application on the standard basis.
- McMURDO JA: I agree with Gotterson JA.
- BOND J: I agree with Gotterson JA.
Footnotes
[1] The resumption was of the fee simple estate in Lot 2 on Registered Plan 902648 in the County of Stanley Parish of Warner.
[2] Taking of Land Notice (No 24) 2012; Queensland Government Gazette Vol 360 No 58, 20 July 2012 p 849.
[3] AB2797.
[4] AB2630-2.
[5] AB2716-7.
[6] AB2718-27.
[7] AB2849-58.
[8] It had been so zoned since 1988.
[9] AB590.
[10] AB634.
[11] Land Appeal Court (“LAC”) Reasons [85]-[113].
[12] LAC Reasons [123].
[13] LAC Reasons [124]-[127].
[14] LAC Reasons [129].
[15] Appeal Transcript 1-13 ll1-5; 1-14 l22.
[16] [2014] QCA 356; (2014) 206 LGERA 302 at [24].
[17] (1936) 55 CLR 499; [1936] HCA 40.
[18] Applying De Tourner v Chief Executive, Department of Environment and Resource Management [2009] QCA 395; [2011] 1 Qd R 200 at [22] per Fraser JA (McMurdo P and McMeekin J agreeing).
[19] Appeal Transcript 1-12 ll45-47.
[20] LAC Reasons [78].
[21] LAC Reasons [85]-[113].
[22] Land Court Act 2000 (Qld) ss 55, 56.
[23] Land Court Act 2000 (Qld) s 74(2).
[24] The Land Court member considered whether the Council was likely to require the imposition of such a condition. The Land Appeal Court as was appropriate in the circumstances, considered the likelihood that the Department of Main Roads and Transport, as a concurrence agency, would require its imposition.
[25] Land Court (“LC”) Reasons [115].
[26] [2014] QPEC 48 at [24].
[27] Australian Retirement Homes Ltd v Pine Rivers Shire Council [2009] QPEC 92.
[28] Western Australian Planning Commission v Tamwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 per McHugh J at [70] and per Gummow and Hayne JJ at [93].
[29] [2014] QPEC 48 at [45].
[30] Appeal Transcript 1-28 l13.
[31] Appellant’s Outline of Submissions, para 25.
[32] Appeal Transcript 1-28 ll32-35; p1-29 ll21-23.
[33] Appeal Transcript 1-27 ll4-6.
[34] Ibid ll6-8.
[35] Section 2.1.5(1)(b)(ii)(A) of the planning scheme applicable in Intrapac: see [2014] QPEC 48 at [32].
[36] LAC Reasons [90].
[37] 2006 Plan at 2.2(19) – (27): AB2099.
[38] Sustainable Planning Act 2009 (Qld) s 323. Section 329(1)(b) is enacted in the same terms in respect of preliminary approval applications.
[39] Comiskey Group v Moreton Bay Regional Council & Or [2011] QPEC 132. The appeal was ultimately dismissed after the resumption had been effected: [2012] QPEC 4.
[40] It may be ventured with some confidence that the word “weight” was deliberately used in paragraph 116 to distinguish the hypothetical purchaser’s exercise from an assessment manager’s assessment.
[41] LC Reasons [205].
[42] (1969) 18 LGRA 254.
[43] LC Reasons [205].
[44] [2004] NSWCA 451; (2004) 63 NSWLR 167 at [96], [97] (Mason P and Hodgson JA agreeing).
[45] [2009] WASCA 163; (2009) 260 ALR 164 at [45]-[51] (Miller JA agreeing).
[46] LAC Reasons [78].
[47] Paragraph 133 is repeated for convenience in reading.
[48] Appeal Transcript 1-36 l3. It was also submitted that conditional offers have no relevance for establishing market value: ibid ll9-19.
[49] At one point in oral submissions, it was put for the Council that the only evidence which supported the $4.1 million valuation was the Comiskey offers: Appeal Transcript 1-36 ll22-23.
[50] LAC Reasons [123].
[51] LAC Reasons [127].
[52] LAC Reasons [123].
[53] See, for example, the comparative sales identified and described by Mr Rabbitt at pp 20-28 of his report dated 27 March 2014: AB617-625.
[54] LAC Reasons [127], [128].
[55] LAC Reasons [130].
[56] LAC Reasons [131].
[57] LAC Reasons [132].
[58] Applicant’s Outline of Submissions, para 9.
[59] [2009] WASCA 163; (2009) 260 ALR 164 at [50].
[60] Applicant’s Outline of Submissions, para 12.
[61] LAC Reasons [123], [127], [130]-[133].
[62] Land Court Transcript 5-6 l13: AB207.
[63] Respondent’s Outline of Submissions in the Land Appeal Court, para 34(a): AB2665.
[64] LAC Reasons [81].
[65] Ibid.
[66] Statement of D E George dated 7 May 2014, attachment “DG4”: AB1783.
[67] Ibid para 10: AB1691.
[68] Land Court Transcript 5-8 ll1-6: AB209.
[69] LAC Reasons [132].