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Gold Coast City Council v Dobson[2014] QLAC 6

Gold Coast City Council v Dobson[2014] QLAC 6

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Gold Coast City Council v Dobson [2014] QLAC 6

PARTIES:

GOLD COAST CITY COUNCIL

(appellant)

v

TERRENCE DOBSON

(respondent)

FILE NO/S:

LAC007-13

Land Court No AQL176-12

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Appeal from the Land Court of Queensland

ORIGINATING COURT:

Land Court at Brisbane

DELIVERED ON:

25 August 2014

DELIVERED AT:

Brisbane 

HEARING DATE:

27 – 28 November 2013

THE COURT:

Peter Lyons J

PA Smith, Member of the Land Court

WL Cochrane, Member of the Land Court

ORDER:

The appeal is dismissed.

CATCHWORDS:

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – PART OF LAND ACQUIRED – where the respondent owned a parcel of land, part of which was resumed by the appellant – where prior to resumption the respondent's land had potential for development for a mix of residential and non-residential purposes – where the valuer for the respondent determined compensation for the resumed land on the basis that the land would be developed according to the same mix of uses in the same proportion – where the valuer for the appellant assumed that the same amount of land was available for commercial uses both before and after resumption – where the valuer for the appellant thus determined compensation on the basis that the resumed land would only be developed for residential purposes – where the Land Court Member found that the prudent purchaser would wish to maximise commercial development and the planning authority would wish to maximise residential development on the remaining land – whether the Land Court erred  in adopting the approach of the valuer for the respondent – whether that adoption was inconsistent with other findings of the Land Court Member

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – GENERALLY – where the valuer for the respondent adopted a "blended rate" of $275 per square metre to determine the value of the resumed land, assuming the land had been approved for development for both residential and commercial uses – where the sales of land relied upon by the respondent's valuer were not for mixed development – whether the Land Court erred in adopting the respondent's "blended rate" to determine the compensation for the resumed land

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – MARKET VALUE – POTENTIALITIES – where the valuer for the respondent adjusted the value of the land by eight per cent to account for the time and expense of obtaining a development approval –  where the appellant submits that eight per cent is too low – where the appellant submits that the valuer for the respondent did not account for risk and therefore treated a development approval as a certainty rather than a potentiality – where the appellant submits that there was risk because of a potential challenge by a commercial rival – where there were a number of features of the location of the respondent's land which would make it difficult for a rival to successfully challenge an approval for development – whether the Land Court erred in not making a significant allowance for risk

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where the appellant submits that the Land Court Member did not give adequate reasons for adopting the approach of the respondent's valuer in relation to the proportion of land suitable for commercial development after resumption, the rate per square metre of the resumed land, and the time, cost and risk of obtaining a development approval – whether the Land Court Member failed to provide adequate reasons

Integrated Planning Act 1997 (Qld)

Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136,  cited

Crouch v Minister of Works (1976) 36 LGRA 254, considered

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; [2009] QCA 66, cited

Kenny & Good Pty Ltd v MGICA (1992) Ltd  (1999) 199 CLR 413; [1999] HCA 25, cited

Roads Corporation v Love (2010) 31 VR 451, considered

Spencer v Commonwealth (1907) 5 CLR 418; [1907] HCA 82, considered

Stanfield v Brisbane City Council (1990) 70 LGRA 392, cited

Sunland Group Ltd v Townsville City Council [2012] QCA 30, cited

Turner v Minister for Public Instruction (1956) 95 CLR 245; [1956] HCA 7, followed

Walker Corporation v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5, followed

COUNSEL:

D R Gore QC, with B Cronin, for the appellant

J A Griffin QC, with D R Wilson, for the respondent

SOLICITORS:

Gall Standfield & Smith Solicitors for the appellant

Chan Lawyers for the respondent

THE COURT:

  1. [1]
    Land forming part of a larger parcel owned by the respondent was resumed on 14 September 2007. The Land Court determined compensation in an amount of $1,123,000 for the resumed land.  The valuation approach of the valuer called by the respondent, Mr Hamilton, was adopted by the Member and assumed that, at the date of resumption, but unaffected by it (before resumption case), the respondent's land had potential for development for a mix of residential and non-residential (or commercial) uses; and at the same time but assuming the resumption had occurred (after resumption case), had potential for a development with the same mix of uses in the same proportion.  On the basis of sales evidence, Mr Hamilton determined what he called a "blended rate", being a rate per square metre, which he used to assess the value of the land in both cases, on the assumption development approvals had been obtained.  From those values he deducted an amount for the cost of obtaining approvals; discounting the results to allow for the passage of time and risk; and he identified the difference between the results as the appropriate amount of compensation.
  1. [2]
    The appellant (Council) contended that the Land Court erred in accepting the proposition that the same proportions of residential and commercial uses should be assumed in both cases (commercial uses point); in accepting Mr Hamilton's rate (applied rate per square metre for valuation of land); and in the adjustments made to the value of land in both cases to take into account the costs of an application and discounting (valuation of land without approvals).  It also made what was described as an overarching submission, that with respect to these matters, the Land Court failed to give adequate reasons.  These grounds of appeal will be dealt with separately later in these reasons.

Background

  1. [3]
    The land is located at the intersection of Days Road and Kristins Lane, Upper Coomera.  Kristins Lane runs in an approximately northerly direction, and Days Road in an approximately north-westerly direction.  The land may be broadly described as triangular in shape.  Kristins Lane adjoins its eastern boundary, and Days Road adjoins its south-western boundary.  Its northern boundary runs in an east-west direction.
  1. [4]
    Prior to the resumption, the respondent's land had an area of 3.084 hectares. The resumed land, being a strip along the Days Road frontage, had an area of 4,404 square metres, the land retained by the respondent having an area of 2.643 hectares[1].
  1. [5]
    The land lies a short distance west of the Pacific Motorway. Days Road connects to an interchange with the Motorway. A short distance to the east of the interchange is the Coomera train station; and a short distance south, on the eastern side of the Motorway, is Dreamworld.
  1. [6]
    The land is in an area which was experiencing "very robust population growth"[2].
  1. [7]
    On land located immediately to the north west of the site is a shopping centre based on a Woolworths supermarket (Lewani Springs development)[3].   This development was under construction at the date of resumption.  On the opposite of Days Road from this development, a two storey mixed-use development with retail and office space was also under construction at that time (The Hub)[4].  Opposite the respondent's land, across Kristins Lane and extending to the Motorway, is a relatively large area of land designated for light (or low impact) industry, which at the date of the resumption was in the course of development[5].
  1. [8]
    The submissions on appeal make it necessary to refer briefly to planning and valuation evidence.

Planning evidence

  1. [9]
    Development of the land was, at the date of resumption, regulated by the Gold Coast Planning Scheme. Under the scheme, the land was located in Precinct 1 (Coomera Residential) of the Coomera Local Area Plan (LAP)[6].  The table of development for this precinct favoured less intense forms of residential development with some support for medium density residential development and some related uses; but discouraged more intense forms of commercial development[7].  Notwithstanding the provisions of the planning scheme, the Lewani Springs development, and the development of The Hub, were occurring on land in Precinct 1.  It was common ground that the LAP had been overtaken by events in the locality of the site[8].
  1. [10]
    Mr Ovenden, a planner who gave evidence in the respondent's case, described the area around the land as being, in September 2007, in a state of transition from greenfield sites to a mix of residential, retail, commercial and industrial development, a result of the significant residential growth in the Coomera locality west of the Motorway[9].  He considered that, at the time of resumption, the Council would have supported higher density residential development on the site; and that a hypothetical prudent purchaser, properly advised, would have concluded there were good prospects of achieving development approval for a wide range of residential and commercial uses[10].  He referred to concept plans prepared by Mr Doug Pearson of Inscape Design, showing two forms of mixed use development including both residential and commercial uses, for both the before resumption case and the after resumption case[11].  These forms of development were described as Concept A and Concept B.  Mr Ovenden said each would, as a whole, be supported by the Council[12].
  1. [11]
    Mr Peter Bell, a town planner, gave evidence in the Council's case. His report concluded that the highest and best use for the land was residential development of a density of 33 dwellings per hectare, which might possibly be increased[13].  Potentially at odds with his overall conclusion, he also said that medical centres, childcare centres, convenience shops and the like would in the appropriate circumstances be approved, as would a small office component at the western end of the land, resulting in the opportunity to create a mixed use development[14]; and that, at the time of resumption, the Council would have supported a mixed use development of the land with cafes and low order retail or office uses on the ground floor at the western end of the site[15]; though not development including a shopping centre, bulky good showrooms, or a large office development[16].  In an addendum dealing with Concept A and Concept B, he expressed the view that commercial land is more attractive to developers than residential land, and it was reasonable to expect that a developer would seek to maximise the commercial yield; and accordingly developers would seek to minimise the impact of the resumption by maintaining the area to be used for commercial development[17].
  1. [12]
    Plans were prepared to reflect development of the land in accordance with the views expressed in Mr Bell's report. They showed, both before and after resumption, commercial development of the site on an area of 6,400 square metres, at its western end; with the balance of the land to be developed for townhouses (BDA plans)[18].

Valuation evidence

  1. [13]
    Mr Hamilton's approach has been referred to earlier. He derived his blended rate primarily from an analysis of six sales[19].  Of these one anticipated industry and warehouse development (Sale 6)[20]; and one, located at The Esplanade, Coomera, anticipated residential development for accommodation units (Sale 5)[21].  The remainder anticipated other forms of commercial development, in some cases at a fairly remote time in the future; although some potentially involved residential development.  Mr Hamilton's Sale 4 (Bannockburn Sale) was for a site identified in the planning scheme as a local business centre[22].
  1. [14]
    Mr Hamilton also referred to a number of sales as demonstrating that there was a sound to buoyant market for retail and mixed use sites in the general locality[23].  Of some interest is that one of these sales (Ruth Terrace) was of a site approved for a childcare centre[24].
  1. [15]
    Mr Parsons was called to give valuation evidence in the Council's case. He gave evidence of the before resumption and after resumption values of the land, based on the BDA plans. His method of valuation may be described as the summation method[25].  Thus he derived separate rates for so much of the land as might be developed for residential uses and so much of the land as might be developed for commercial uses; determined a value for each part of the land; and added them together[26].  Since, in the BDA plans, as much land was available for commercial uses in the after resumption case as in the before resumption case, the effect of his approach was that compensation would be determined as if the resumed land were only to be developed for residential purposes[27].  His valuations would result in an amount of $510,000 as compensation for the loss of this land[28].
  1. [16]
    Mr Parsons' valuations were based on a number of sales (originally 10 but he later accepted that three of those should not be relied upon). In some cases, the sales were on the basis that the land could be developed as a childcare centre; but otherwise they were sales of land that had the potential for residential development of varying levels of intensity. Mr Hamilton generally considered that Mr Parsons' sales supported his valuations[29].

Land Court determination

  1. [17]
    At an early point, the learned Member stated that the Court did not concern itself with the precise details of what a local authority would have approved for development of the land; rather its function was to determine, on the basis of the relevant evidence, how the hypothetical prudent purchaser would have viewed the potential financial return which would result from it. The learned Member said that he had kept this firmly in mind when considering the potential development of the land as proposed by the parties[30].
  1. [18]
    After a consideration of the expert economic evidence, he concluded that, in an area of very robust population growth, "a prudent and properly advised purchaser would have been comfortably convinced that the Council, on the basis of its past behaviour, would present a relatively low bar to use of this land beyond the residential use for which it was nominally designated at the date of resumption"[31].  He concluded there was a clear economic need for day care facilities on the site, and a minor to moderate need for some commercial space.  He also concluded that, because land having a commercial potential is more valuable than residential land, an owner would seek to maximise the higher-value commercial use at the expense of residential use[32].
  1. [19]
    Having considered the development concepts advanced by the parties, and the evidence from those who prepared them, the learned Member concluded that there would be a great commercial advantage in having commercial buildings face Days Road; that a developer would wish to maintain the same area of commercial use after the resumption as before; and that there was no Council requirement for any particular balance between commercial and residential uses on the site[33].
  1. [20]
    In dealing with the evidence of the planners, he noted Mr Bell's evidence that at the time of the resumption, it could take 18 months to two years to obtain development approval; and that the process could cost "a couple of hundred thousand dollars"[34].  He also noted Mr Bell's view that the highest and best use of the land was for residential development[35].  He then concluded that:

"a reasonable purchaser (would) have confidence that the subject land, where it fronts Days Road, had good potential for approval of non-residential uses, this section of the road having acquired a commercial potential from its proximity to the approved commercial development.  A prudent purchaser would seek to maximise the commercial component of the land so that it was not reduced by the resumption, which did not materially reduce that frontage"[36].

  1. [21]
    However the learned Member also noted Mr Bell's view that the Council would resist an application for commercial uses on the site[37].
  1. [22]
    The learned Member then considered in detail the evidence of the valuers, including their evidence in relation to sales. He noted Mr Parsons' evidence that the eight per cent discount rate used by Mr Hamilton "is significantly understated"[38].  The learned Member considered "convincing that an owner would seek to maximise value by retaining, after resumption, the same area of land for the more valuable commercial uses that had been agreed with the Council before the resumption"[39].  However, he considered that there was "no rule for setting the amount of land that would be available for non-residential uses in the before-resumption case"[40].  He concluded that the Council, in light of the zoning, and the "strategic thrust of its planning scheme", would attempt to maximise the area used for residential purposes, resulting in a compromise[41].  He repeated his view that the Days Road frontage would be attractive for commercial purposes, and concluded that "the Council would seek to keep the same proportions of use as would have been acceptable to it in the before-resumption case"[42].
  1. [23]
    The learned Member then referred to the uncertainty about the final form of development, considering that a "blended rate" best reflected the circumstances of the case; noting in particular his conclusion that it was likely that the proportions of residential and non-residential development would be the same in both cases; and again referring to the uncertainty about the precise apportionment which might ultimately be approved. Based on these considerations, he concluded that Mr Hamilton's method was the appropriate method.[43]
  1. [24]
    The learned Member then referred to his earlier conclusions that commercial development was supported by the population growth occurring in the locality; and that the owner of the land would seek to maximise commercial development, concluding that Mr Hamilton's methodology was consistent with them, and with the learned Member's conclusions relating to planning[44].  He then referred to the criticisms of Mr Hamilton's sales evidence, noting the difficulties in finding suitable sales.  He acknowledged that both the selection and application of sales evidence was a matter for a valuer's professional skill and judgment; and concluded that it was not appropriate to depart from Mr Hamilton's conclusions[45].

The commercial use point

  1. [25]
    The Council's first ground of appeal was that the Land Court erred in concluding that the assessment of compensation should be based upon the same proportion of land considered suitable for development for commercial uses in the before and after cases; and accordingly that the Land Court should have accepted Mr Parsons' approach. His approach was that the same area for commercial development should have been adopted for both cases.
  1. [26]
    Its written submissions contended that the learned Member's conclusion about the proportion of land for commercial development was inconsistent with his finding that the hypothetical prudent purchaser would seek to maximise the commercial component of the land. It also submitted that the learned Member erred in determining the question by reference to what would be "agreed" with the Council. These contentions were supported by a number of oral submissions. Thus it was said that the Land Court erred in principle by failing to consider each of the before case and the after case in isolation[46].  The Land Court Member was said to have erred by "expecting too much precision" in the task he was carrying out[47].  The learned Member was said to have erroneously interpreted Mr Parsons' evidence as being that the same form of development (with the same non-residential development) should be adopted for the before resumption case and the after resumption case[48].  Other oral submissions were substantially to the same effect as the written submissions[49].
  1. [27]
    The submissions for the respondent emphasised that there would be tension between the desire of the owner of the land to maximise non-residential development, and the Council's interest in the application of planning principles, including that there should be residential development in close proximity to substantial commercial centres.
  1. [28]
    The learned Member's finding that a prudent purchaser would seek to maximise the commercial component of the land so that it was not reduced by the resumption[50] is not challenged.  It was relied upon by the learned Member for his adoption of Mr Hamilton's methodology, which assumed that the land had a substantially greater potential for commercial development, than did Mr Parsons' method[51].  That finding, however, is not inconsistent with the learned Member's conclusion that compensation should be assessed on the basis that there would be a smaller area for commercial development after resumption, than there would have been before resumption.  This conclusion was reached as a consequence of the learned Member's recognising the tension between the desire of a prudent purchaser to maximise commercial development on the land, and the application by the Council, as the body ultimately responsible for the determination of development applications, of planning principles relating to the maximisation of the area of the land to be used for residential purposes, consistent with the land's designation under the town plan, and that plan's "strategic thrust"[52].  The learned Member's conclusion about the desire of a potential purchaser is, accordingly, not determinative of the basis on which compensation is to be assessed.
  1. [29]
    The Council's submission that the learned Member erred by referring to the agreement of the Council may have been intended to convey that the learned Member erred by determining what was likely, rather than by determining how the hypothetical prudent parties would regard the prospects of developing the land. The learned Member's references to the agreement of the Council are to be understood in the context of his earlier statement that the Land Court did not concern itself with the form of development which the Council would approve; and his adoption of the proposition that it was the function of the Land Court to determine how the hypothetical prudent purchaser would view the potential return if a particular development proposal were considered[53].  It was not suggested that in respect of either matter, the learned Member had erred.  It is not uncommon for witnesses, and parties, who correctly understand that value is to be determined by reference to the state of mind of the hypothetical prudent vendor and purchaser, nevertheless to express themselves in a shorthand fashion, by reference to what form of development was likely to have been approved.  This is reflected in the learned Member's summary of Mr Hamilton's evidence, expressed first by reference to the view of the prudent purchaser; but then by reference to the likely attitude of the Council to the development of the land[54].  Moreover, the learned Member ultimately adopted Mr Hamilton's approach, which was clearly focused on the opinion which a hypothetical prudent purchaser would be likely to adopt as to the development potential of the land, bearing in mind the need to obtain development approvals[55].  In the context of his reasons as a whole, the learned Member's reference to what area for commercial development might have been "agreed" with the Council does not demonstrate that the learned Member did not determine the value of the land by reference to the view of the hypothetical prudent purchaser.  His earlier remarks indicate that he carried out that exercise, though he did so by reference to what form of development would have been agreed to by the Council.
  1. [30]
    The Council's submission may have been intended to convey that an agreement with the Council was not formally a part of the development approval process under the Integrated Planning Act 1997 (Qld).  As a matter of strict legal analysis, that is correct.  However, at a practical level, it is not erroneous to assess the value of land by reference to what a prudent purchaser (or vendor) might reasonably consider that the Council, as the planning authority responsible for granting development approvals for the land, might agree to.  The expectation of such an agreement is relevant to the assessment of the risk that a development application might be refused; or that an approval might only be gained after an appeal against such a refusal.  It is by no means irrelevant to the assessment of value.  Reference to this matter does not demonstrate error by the learned Member.
  1. [31]
    It was submitted that the learned Member erred in principle in determining the likely proportions of each land use in the after-resumption case, by reference to his conclusion in the before-resumption case. It is apparent from his reasoning that he considered the dominant considerations in each case to be the same, namely, the land owner's desire to maximise the extent of commercial development; and the desirability, from the point of view of the Council as the entity responsible for the planning of the area, of maximising residential development on the land. It has not been shown that he erred in doing so. These considerations are not affected by the resumption. Accordingly the learned Member did not err in principle by adopting, for the after resumption case, the land use proportions he adopted for the before resumption case.
  1. [32]
    It was submitted that the learned Member, because he assumed the same proportions of each land use before and after resumption, "was expecting too much precision". The effect of the learned Member's findings is that the considerations were unaffected by the resumption, with the consequence that the proportions of each type of use remained the same. This is not a case where the learned Member expected precision; rather the consistency of his conclusions about the proportions of each type of land use is a consequence of his conclusions about other matters. No error is shown.
  1. [33]
    A difference between the approach of Mr Hamilton and that of Mr Parsons was that Mr Hamilton assessed the value of land by the use of a "blended rate" not linked to a particular form of development. On the other hand, Mr Parsons' evidence was based on the form of development shown in the BDA plans, resulting in his adoption of the summation method. The passage from the reasons for judgment relied upon for the submission that Mr Parsons' approach was not properly understood by the Member[56] refers to this difference.  It does not, however, demonstrate that the learned Member did not appreciate the effect of Mr Parsons' evidence[57].  The submission does not take into account the learned Member's description, earlier in his reasons, of Mr Parsons' approach, as assuming set areas for commercial and residential development, with no reduction in the area for commercial development after resumption[58].  That is the approach which the learned Member addressed in reaching his conclusions on the valuers' evidence, and which he considered did not make proper allowance for the likelihood that the Council as the planning authority would seek to ensure an appropriate area for residential development[59].  That appears to be the primary basis on which the learned Member preferred the evidence of Mr Hamilton to that of Mr Parsons.
  1. [34]
    It is clear that Mr Hamilton's approach, while it made reference to potential forms of development, did not depend on them. Mr Parsons' assessment of compensation, however, was directly related to specific forms of development[60].  In the context of the issues raised in the Land Court, the learned Member's description of the difference between the approaches of the valuers is not inaccurate.
  1. [35]
    It has not been shown that the learned Member erred on the commercial uses point.

Applied rate per square metre for valuation of land

  1. [36]
    The Council submitted that the learned Member erred in adopting Mr Hamilton's blended rate of $275 per square metre. The submissions drew attention to the fact that none of the sales relied on by Mr Hamilton were for land on which a mixed development was to be carried out.
  1. [37]
    The Council's submissions made reference to Mr Hamilton's apportionment of value to various parts of the site (which appeared in the valuers' Joint Witness Statement (valuers' joint statement), and which did not represent the method by which Mr Hamilton had valued the land).  In the apportionment, a rate of $200 per square metre was identified for an area of 17,540 square metres, shown as residential development.  This rate was said not to be justified by Mr Hamilton's only residential sale, his Sale 5, which showed a rate of $188 per square metre, because Mr Hamilton had not had the chance to make enquiries of the purchaser[61].  It was contrasted with Mr Parsons' four residential sales, analysis of which produced rates ranging from $59 per square metre to $93 per square metre.  So far as the apportionment included an area for a childcare centre, the rate nominated by Mr Hamilton of $350 per square metre was based on a sale (Ruth Terrace) which, it was said, he acknowledged needed to be adjusted downwards[62]; and which was much higher than Mr Parsons' Sale 1, showing a rate of $202 per square metre for such a centre.  It was submitted that the adopted rate for other non-residential uses of $375 per square metre was similar to the rate for Mr Hamilton's Sale 6, Mr Hamilton again acknowledging that the rate should be adjusted downwards for the land[63].
  1. [38]
    It was next submitted that the apportionment was quite arbitrary, the areas for each form of development not matching those shown in Concept A or Concept B. Changes in the areas would significantly affect the value. Moreover, the plans for development before and after the resumption, shown in Concept A and Concept B, reveal changes in the mix of uses; and a change would, if the individual rates for each use were applied, alter the overall valuation.
  1. [39]
    It was also submitted that the rate from the Bannockburn Sale, said to be zoned and approved for retail purposes, was the same as the rate applied to the resumed area, when a number of considerations showed that the rate for the respondent's land should be lower.
  1. [40]
    Taken together, it was submitted that these considerations meant that the blended rate of $275 could not be adopted. Moreover it was submitted that the criticisms made by Mr Parsons of Mr Hamilton's sales evidence were good.
  1. [41]
    For the respondent, it was submitted that Mr Hamilton's Sales 1, 2 and 3 were for mixed developments. The criticisms of Mr Hamilton's rate, made by reference to particular sales, did not recognise the superior characteristics which the subject land had, by reason of its location in relation to significant commercial development. Mr Hamilton's adoption of a blended rate was a matter of expert opinion which, while it may be "arbitrary", in the valuation area may nevertheless be correct.
  1. [42]
    It might first be observed that many of the Council's submissions were directed to the apportionment which Mr Hamilton set out in the valuers' joint statement. This is not an obvious path to the successful identification of a legal, factual or discretionary error on the part of the Land Court[64] which adopted Mr Hamilton's primary approach to valuation.
  1. [43]
    No authority was cited for the proposition that error was demonstrated by the fact that Mr Hamilton adopted a blended rate, when none of his sales was, on the Council's submission, of land for a mixed use development. It was not suggested that there was a sale of land for such a form of development sufficiently comparable to be used for the valuation, and overlooked by Mr Hamilton. Accordingly, he faced the difficulty of establishing the value of the land by reference to such sales evidence as was available. It then became a matter of professional judgment for him to determine what sales evidence might be relevant; and to apply it as best he could. His judgment that the best approach was to adopt a blended rate is not shown, in the circumstances, to be wrong; nor is error demonstrated in the learned Member's acceptance of Mr Hamilton's approach. The approach of Mr Hamilton might be regarded as "arbitrary", in the sense it is the result of what might be described as "pure judgment", rather than an identifiable form of calculation; but as the submissions for the respondent point out, valuation evidence often requires the formation of judgments which may similarly be described as "arbitrary". The fact that such evidence has this character does not mean that its adoption is erroneous.
  1. [44]
    The criticism of Mr Hamilton's adoption of Sale 5 was expressly stated to relate to the fact that he was unable to speak with the purchaser; but it also appeared to extend to the proposition that the amount of fill required for the sale meant that it did not reflect market value[65].  Mr Hamilton acknowledged that the sale would not reflect market value, if fill had to be imported; but also noted that an overland flow path had to be provided through the site.  Mr Parsons spoke to the purchaser at a later stage.  The development of the land was then unviable; but that was after the market had been affected by the global financial crisis.  Mr Parsons considered the sale to be out of line[66].
  1. [45]
    There is reason to question whether this sale reflects market value. It is of some interest that, although he spoke with the purchaser, Mr Parsons did not give evidence of factors the purchaser took into account when entering into the contract; nor did he suggest that at that time the purchaser was unaware of the likely costs of developing the site. There was no suggestion in the evidence that it was not an arm's length sale. The land had an approval for a development of 185 units. It was relatively close to the Coomera Town Centre, the Motorway, the Coomera River, and a large area designated for marine industry[67].  Reference is made elsewhere in these reasons to Mr Hamilton's evidence that the market at the time of resumption (very close to the date of this sale) was very strong, with anticipated growth, particularly around Coomera.  It is difficult to conclude that Mr Hamilton erred in placing some reliance on this evidence.  Moreover, his reliance was limited.  It was one of six sales from which he drew his blended rate.  Indeed, the criticism made by the Council of this sale is not in relation to its use by Mr Hamilton to derive his blended rate; it is that Sale 5 could not justify rate for residential land used by Mr Hamilton in his apportionment.  The Council's submissions about this sale do not provide a basis for allowing the appeal.
  1. [46]
    As mentioned earlier, the Ruth Terrace sale was not one of the six sales relied upon by Mr Hamilton for his valuations. Nevertheless it was relied upon in the Council's submissions for a criticism of the rate applied to the childcare centre land in Mr Hamilton's apportionment. In that apportionment, for that land, he adopted a rate of $350; which was higher than the rate of $340 per square metre which Mr Hamilton derived from the Ruth Terrace sale in May 2008[68].  The submission referred to Mr Hamilton's answers in cross-examination where he acknowledged that the rate for the site "needs to be adjusted down"[69].  The Council's submission appears to be that this demonstrates error in the learned Member's acceptance of Mr Hamilton's blended rate.
  1. [47]
    The submission for the Council focused unduly on a small part of Mr Hamilton's evidence. When that evidence is read in context, it is clear that Mr Hamilton was acknowledging that the rate derived from the sale at Ruth Terrace needed to be adjusted down, to produce a rate for the whole of the respondent's land, with its mix of uses and absence of approvals. Not surprisingly, he also gave evidence that he had done that in his report[70].  In context, the evidence relied upon by the Council does not support its submission.
  1. [48]
    The Council's submissions also referred to Mr Hamilton's Sale 6, from which he derived a rate of $358 per square metre.  The submissions noted that this rate was similar to the rate applied in Mr Hamilton's apportionment to the mixed retail/service industry part of the site, and referred to his acknowledgement that this rate, also, should be adjusted downwards for the circumstances of the respondent's land at the date of resumption[71].  Again, this is relied upon in support of a submission that the learned Member erred in accepting Mr Hamilton's blended rate.
  1. [49]
    It is not clear that the evidence of Mr Hamilton, referred to in the Council's submission, acknowledges that the rate from Sale 6 needed to be adjusted downwards, in order to derive a rate applicable to the land identified as commercial in Mr Hamilton's apportionment. The questioning commenced with reference to sales described by the cross-examiner as "mixed retail sales", which the cross-examiner suggested were not comparable. In response, Mr Hamilton said that they reflected rates well in excess of $375 per square metre; if one was to attach a value to the various components of the land one would need to apply a rate (it would appear, to the components), and then to adjust that down for the circumstances of the property at the date of resumption[72].  The sales to which he was referring do not appear to include Sale 6.  Mr Hamilton's apportionment was an apportionment of the respondent's land, assuming it had development approval; with different rates applied to the areas apportioned to different uses.  Any need to adjust the rates downwards would appear to reflect the absence of an approval at the date of resumption, rather than some inferiority of the respondent's land by comparison with the lands referred to.  Shortly thereafter, Mr Hamilton went on to point out that he did not derive his valuations by that method[73].
  1. [50]
    In his report, Mr Hamilton said that the rate he derived from Sale 6 was higher than the rate which should be applied to the respondent's land[74].    He also said that this land was inferior to the respondent's in respect of location and development yield, but had the advantage of an approval; and he noted its smaller area[75].  He again concluded that the rate per square metre for this land would be higher than for the respondent's land.  The approach taken in the report was to identify a single rate for the whole of the respondent's land; not different rates for different parts of it.  The rate which Mr Hamilton identified for the respondent's land in his report, consistent with his statements, was lower than the rate he derived from Sale 6.
  1. [51]
    A consideration of Mr Hamilton's evidence relating to Sale 6 does not provide a satisfactory basis for concluding that he erred in adopting his blended rate; nor that the learned Member erred in accepting Mr Hamilton's evidence.
  1. [52]
    The Council's submissions drew attention to the fact that the plans in Concept A and those in Concept B show different proportions of land for the various use types in the before-resumption and after-resumption cases. This, and the fact that the learned Member found that a prudent purchaser would seek to maximise the commercial component for the land in the after-resumption case, were relied upon for a submission that the learned Member erred in accepting Mr Hamilton's blended rate. The significance of the finding as to the purchaser's approach to the extent of commercial development on the land has been discussed earlier. It does not support the Council's submission. Mr Hamilton's evidence made it plain that, while his valuations assumed that the land could be developed "in line" with the plans in Concept A and Concept B, it did not assume potential development precisely in accordance with either of them[76].  Indeed so much is implicit in the fact that there are differences in the form of development in each of these plans.  That the learned Member did not err in adopting Mr Hamilton's approach has been discussed earlier in these reasons. 
  1. [53]
    It was submitted that the rate applied to the resumed area, said to be $275 per square metre, was the same as the rate derived from the Bannockburn Sale. It might be observed that the difference between that rate, and the blended rate referred to earlier, to a significant extent reflects the discounting approach adopted by Mr Hamilton to achieve his values before and after resumption. The Council's submissions contended that retail purposes attracted the highest commercial vale[77]; the proportion of retail shown in Concept A and Concept B was low; non-residential uses represented about one-third of the area of the land; and the Bannockburn Sale was for a smaller area of land, usually implying a higher rate.  It was implicit in these submissions that the rate adopted for the respondent's land was accordingly too high.
  1. [54]
    Some of Mr Hamilton's comments on the Bannockburn sale are, on their face, quite telling.  He considered that the Bannockburn land was in "a considerably inferior location"[78].  It is, in fact, located some distance to the west of the Pacific Motorway at Yatala, and is separated from Yatala by the Albert River[79].  In his oral evidence, Mr Hamilton said the site was at the "immediate end of the Windaroo estate"[80].  It might be observed that this is the remote end of the estate, unlikely to be in the major direction of travel for residents of the estate.  Mr Hamilton also stated that although the estate was now "fully established", at the time of the sale land on the western side of Beenleigh-Beaudesert Road (which passes through the Windaroo estate, leading to the Bannockburn site) "would've still been in a rural state"[81].  He considered that the UBD map[82] provided a more accurate view of development at the date of the sale[83].  The UBD map indicated that the residential development in Windaroo was confined to the area to the east of the Beenleigh-Beaudesert Road, and that in all other directions from the Bannockburn site, there was no urban development (at least west of the Albert River).  Mr Hamilton's observation that the subject land was "in a far better position locality-wise"[84] appears to be soundly based.
  1. [55]
    Contrary to the submissions for the Council, Mr Hamilton's evidence was that there was no evidence of development applications relating to the Bannockburn site at the date of sale[85].
  1. [56]
    Mr Hamilton described the Bannockburn site "as a future local business centre"[86].  He described the sale as "a strategic purchase"[87], and considered that at the date of the sale "it would've been difficult … to judge that it had the potential for higher order uses"[88].  The intent statement in the planning scheme suggested there was going to be a mix of some business uses and residential uses on the site[89].  His reservations about the appreciation of the potential of the Bannockburn land for commercial development seem well justified by reference to its location, and the limited extent of nearby urban development at the time of the sale.
  1. [57]
    The Council's submissions sought to contrast the respondent's land with the sale land at Bannockburn, by reference to the proportion of commercial development on each.  In doing so, the submissions relied upon the apportionment given by Mr Hamilton in the joint valuation report.  Reasons have already been expressed for the conclusion that this approach is not particularly helpful in identifying error, whether on the part of Mr Hamilton or the Land Court Member.  The submissions fastened unduly on the fact that, as it happens, the rate derived from the Bannockburn sale is very close to the rate applied to the land, without allowing for the force of Mr Hamilton's observations about this sale.  It does not demonstrate that his conclusions about the value of the land are in error.
  1. [58]
    Mr Hamilton's consideration of this sale expressly recognised that it was a smaller site, and that such a site would normally attract a higher rate per square metre[90].  There is no reason to think that he failed to make proper allowance for this consideration in his application of the rate to the land which he was required to value; rather, his evidence relating to this sale, taken as a whole, indicates that he did.
  1. [59]
    In summary, the submissions advanced on behalf of the Council do not demonstrate that the learned Member erred in accepting Mr Hamilton's blended rate of $275 per square metre.

Valuation of land without approvals

  1. [60]
    The Council's submissions raised three matters with respect to the approach taken by Mr Hamilton in valuing the land at the date of resumption, without approvals. The first was that his discount rate did not allow for risk, but only for holding costs and what was referred to as the opportunity costs of money. The second related to the assumption made by Mr Hamilton that 12 months was a sufficient time to obtain the approvals. The third was Mr Hamilton's evidence that the cost of obtaining a development approval would be $60,000; whereas Mr Bell's evidence was that the cost would be $200,000.
  1. [61]
    In light of these submissions, the parties provided to the court calculations based on various scenarios, with allowance for different discount factors, costs of obtaining development approvals, and times for obtaining the approvals.
  1. [62]
    The Council orally submitted, with express reference to instructions from Mr Parsons' office, that if the cost of obtaining a development approval was assumed to be $200,000, rather than $60,000, that would make a difference of about $100,000 in compensation[91].
  1. [63]
    Scenario 4 demonstrates that the Council's submission is not correct. It involves Mr Hamilton's assumptions, save that the cost of obtaining the approval is increased from $60,000 to $200,000. It produces the same compensation as results from Mr Hamilton's assumptions[92].
  1. [64]
    Scenarios 6 and 8 also produce the same compensation figure. The only difference between them is the increase in the cost of the development application from $60,000 to $200,000. This is also true of Scenarios 2 and 9; 3 and 10; 5 and 7; and 12 and 16. This outcome is not surprising. In each case, compensation is determined by the application of the blended rate to the respondent's land in the before-resumption and after-resumption cases, with a reduction for the cost of development approvals in both cases; and the same allowance for time to obtain the approval in each case. An alteration in those costs would not affect the difference between the results of the exercise. Accordingly, determination of the appropriate amount for costs will have no effect on the outcome of the appeal, and does not require further consideration.
  1. [65]
    The Council submitted that the learned Member failed to determine the dispute about the correct assumption to be made about the time it would take to obtain any relevant development approval. The Council's oral submissions appeared to go no farther[93].  Its written submissions referred to the liberal estimate principle; but only for the proposition that this principle could not be relied upon to avoid a determination of a matter which was the subject of a dispute in the evidence.  However, the learned Member noted the evidence of Mr Bell that obtaining an approval could take between 18 months and two years[94].  By accepting Mr Hamilton's approach, the learned Member has resolved the issue raised by this evidence of Mr Bell.  Mr Hamilton's evidence was based on that of Mr Ovenden.  The submissions do not suggest that Mr Ovenden was cross-examined about the matter.  The Council's submissions do not show that this was a matter treated as significant at the trial.  So far as would appear from the learned Member's reasons, although Mr Bell gave the evidence just mentioned, the Member regarded this as no more than an element of a criticism of Mr Hamilton's approach.  The Council's submissions have not suggested otherwise.  It has not been shown that the learned Member erred in dealing with this issue, in the manner which appears in his reasons.
  1. [66]
    It was submitted that Mr Hamilton's adoption of a discount factor of eight per cent did not allow for risk, and treated a potential approval as if it existed, contrary to principles stated in Turner v Minister for Public Instruction[95] and Stanfield v Brisbane City Council[96].  It was submitted that the fact that Mr Hamilton's approach did not allow for risk was demonstrated by his oral evidence, which acknowledged that discounts of two per cent for holding costs, and six per cent for the opportunity cost of money were "orthodox" discount factors[97]; and was also apparent from his report[98].  Implicit in these submissions is a submission that the learned Member erred in adopting Mr Hamilton's approach.
  1. [67]
    The Council's submissions correctly referred to Turner[99] for the proposition that, in determining the value of land, one must not "notionally bring what is only potential into actual being and value it as if it existed".  There, Dixon CJ was considering the application of the tests formulated in Spencer v Commonwealth[100] for determining the value of land, in particular, by reference to the most advantageous purpose for which the land was adapted.  His Honour recognised that future advantages or potentialities must not be excluded; and went on to make the observation just referred to[101].
  1. [68]
    Criticism of Mr Hamilton's approach on this basis is not accurate. It is clear that he recognised that, at the valuation date, the land did not have approval for the uses by reference to which he determined his blended rate. Accordingly, he took into account a period of time to obtain the approval, discounting his values to allow for that, and, on his evidence, for risk.
  1. [69]
    The submissions for the Council also correctly identified as relevant the principle that it is an error to treat the probability of a development approval as if it were a certainty. The first case relied upon was Crouch v Minister of Works[102].  There, Wells J had to determine the value of land said to be ripe for subdivision.  He rejected a submission that, if he found on the balance of probabilities that a subdivision approval would be granted, the land should be valued on the assumption that the approval would have been granted.  His Honour said[103]:

"… where the circumstances of a case yield only probabilities to a court's evaluation, leaving open doubts and misgivings, a valuer must, when dealing with the same circumstances, reflect, in his reasoning, not only the probabilities, but also the doubts and misgivings.  In short, if the purchaser-developer judges that planning approval is virtually certain, the price that he will pay will be higher from that which he will pay if planning is no more than probable, and is attended by a real risk that it will be refused."

  1. [70]
    His Honour continued:[104]

"… if the valuer is proceeding on the basis of a hypothetical subdivision contemplated by the willing, but not anxious, buyer and seller alike, the risk that approval of the subdivision would have been refused must be taken into account in determining the bargain price, and cannot be eliminated by attributing to the valuer the liberty to treat as certain that which, in truth and in deed, would have been no more than probable".

  1. [71]
    The carefully chosen language of Wells J does not go so far as to say that an adjustment will have to be made for risk in every case where an approval is required.
  1. [72]
    His Honour's judgment was cited by Osborn J in Roads Corporation v Love[105] where, of the future uncertainties about the realisation of the land's potential for a landfill, he said, "the most significant of those uncertainties might be thought to attach to the obtaining of requisite land use approvals"[106].  No doubt, the extent to which an approval is uncertain is important in determining the extent to which risk must be taken into account.
  1. [73]
    In Walker Corporation v Sydney Harbour Foreshore Authority[107] the High Court, after reference to Spencer, stated that the result of judicial exegesis of that case had been summed up by McHugh J in Kenny & Good Pty Ltd v MGICA (1992) Ltd[108] in a passage which included the following:

"Value is determined by forming an opinion as to what a willing purchaser will pay and a not unwilling vendor will receive for the property".

  1. [74]
    The passage went on to identify matters relevant to forming that opinion, one being the predicted impact of future events. It is, accordingly, apparent that what must ultimately be determined is the likely impact of any uncertainty about a planning approval, on the mind of the hypothetical prudent vendor and purchaser. It has not been said to be a rule of law that the existence of any uncertainty about the obtaining of a planning approval means that the valuer must reduce the value which would otherwise be attributed to the plan, by reference to the uncertainty. In Turner[109], Dixon CJ observed that the modes of reasoning employed in applying Spencer are not matters of law; and that the opinion of a hypothetical prudent purchaser as to a fair price for the land reflects matters of business life, not law.
  1. [75]
    Mr Hamilton plainly recognised that risk was a factor to be considered. His acceptance of two per cent for holding costs and six per cent for loss of opportunity costs as orthodox discounting factors does not inevitably mean that he made no allowance whatever for risk. That conclusion would only follow if no lower percentages for these matters could be regarded as appropriate. Equally, his evidence makes it relatively clear that he did not make a significant allowance for risk[110].  The question is whether he, and the Land Court Member adopting his approach, erred in not doing so.
  1. [76]
    The submissions for the Council placed considerable weight on the history of litigation between persons associated with competing potential development sites in the vicinity of the respondent's land, as relevant to the risk associated with Mr Hamilton's assumptions. That litigation generally concerned land with the potential for substantially greater commercial development than the respondent's land. The prize for success was therefore substantially greater, and more likely to justify the expense involved for a rival to contest an application for a development approval. There were a number of features of the location of the respondent's land which would make it difficult for a rival to successfully challenge an approval for development of the kind envisaged by Mr Hamilton. They were that it was immediately adjacent to the Lewani Springs development, then under construction; it was located between it and industrial land to the east; it was on Days Road, the major road into this fast developing area; and it was across the road from The Hub. A potential rival would, in the unusual circumstances mentioned previously, have difficulty in relying on the provisions of the planning scheme for support. These considerations made the prospect of a successful challenge to a development application for the site, for development of the kind contemplated by Mr Hamilton, unlikely. Indeed the evidence would support a conclusion that the prospect of any challenge was remote.
  1. [77]
    The learned Member referred to Mr Hamilton's evidence, based on sales of other properties, that the market for retail/mixed use sites in the general locality of the respondent's land was sound to buoyant[111].  The properties included one at Ormeau, and another at Mudgeeraba, as well as two closer to the respondent's land.  In his oral evidence, Mr Hamilton described the market as "very strong" and "a seller's market"; and referred to a number of articles available to a purchaser in the latter part of 2007 which were relevant to the market, and which projected continued growth both in population and land prices[112].  Some of these articles referred specifically to the area of the northern Gold Coast around Coomera.  Mr Hamilton said of them that, "They all saw 2008 being better than 2007"[113].
  1. [78]
    It is apparent from Mr Hamilton's application of his sales evidence that he compared the sale properties with the respondent's land as at September 2007 to derive his blended rate[114].  There was no suggestion that he allowed for any potential increase in the value of the land over the subsequent 12 months.  As Dixon CJ recognised in Turner, some factors which are uncertain might well be expected to move in favour of the land owner[115], including returns from the sale of land.  His Honour noted[116] that the purpose of the exercise "is to ascertain the full return which may reasonably be expected from the sale of the land, not the most conservative value". Given the particular, and rather unusual, circumstances of this case, it has not been established that Mr Hamilton erred in his treatment of risk.

Adequacy of the Land Court's reasons

  1. [79]
    The Council's submissions correctly identified a number of principles derived from recent decisions of the Court of Appeal of this State relating to a court's obligation to give reasons for its decision[117].  The first was that the extent to which a court must expose its reasoning for the conclusion which it reaches will depend on the nature of the issues for determination, and the function to be served by the giving of reasons.  The second was that reasons should include material findings of fact and the reasons for making those findings.  The third was that in cases involving conflicts of expert evidence, a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal by the court.  Finally, it was submitted that it was not appropriate for a trial court to decide a case merely by expressing a preference for the evidence of one side over another, particularly if that involved peremptorily shunting aside significant evidence.  It was then submitted that the learned Member's reasons did not comply with these principles, in respect of each of the other matters raised by the Council.
  1. [80]
    For the respondent it was submitted that the learned Member gave reasons for his adoption of Mr Hamilton's approach. It was submitted that since Mr Hamilton's approach was fully reasoned, the learned Member inferentially adopted Mr Hamilton's reasoning. It was also submitted that in truth this was not a case of conflicting valuation evidence. Rather, each carried out a quite different valuation exercise. The critical difference between the exercises was that Mr Parsons assumed no reduction in the potential of the land for commercial development. Since the Land Court was bound to accept uncontradicted evidence unless it was so incredible and unreasonable that no reasonable person would accept it[118], it was submitted, at least by implication, that no further reasons were required.  It was submitted that, even with respect to the time required for obtaining a development approval, and the appropriate discount rate, there was, in truth, no contest between the valuers.
  1. [81]
    The submissions for the Council on this topic were both brief and broadly expressed. They did not recognise the extent to which reasons were given by the learned Member for a number of the findings which he made. In respect of some matters (in particular, the evidence challenging Mr Hamilton's assumption about the time likely to be required to obtain a development approval and the evidence challenging Mr Hamilton's discount factor) they did not recognise the recording of evidence in the reasons. They also failed to recognise that matters the subject of appeal to this Court were in fact determined by the learned Member.
  1. [82]
    No specific submission was made in support of the proposition that the learned Member's reasons on what has been referred to as the commercial uses point were inadequate. The reasons for judgment show that the learned Member did not accept that there should be the same area for commercial use after resumption as before resumption, because of the competing consideration relating to the maximisation of residential development on the site[119].  They also sufficiently identify the basis on which the learned Member chose to adopt Mr Hamilton's approach, with a higher proportion of non-residential development, in preference to Mr Parsons' approach[120].  In particular, he made specific reference to the use of that part of the land which has frontage to Days Road, for commercial purposes[121].  The learned Member gave reasons for adopting the approach of Mr Hamilton, involving a mix of uses by reference to which the land was to be valued[122]. 
  1. [83]
    The learned Member explained his adoption of Mr Hamilton's sales evidence, on the basis that it was a matter of professional skill and judgment[123].  The learned Member's reasons given on these matters explain his adoption of Mr Hamilton's blended rate, which reflects his identification and application of sales evidence, in light of his views about the correct approach to the highest and best use of the land.
  1. [84]
    Although the reasons for judgment do not deal expressly with each of the points raised on appeal in relation to the rate per square metre applied in the determination of compensation, they sufficiently explain the learned Member's reasoning in relation to them. Thus the learned Member's recognition of the difficulty in finding suitable sales evidence, and his acceptance of Mr Hamilton's judgment on this matter, explains his acceptance of Mr Hamilton's reliance on the sales he identified, for the derivation of his blended rate[124].  This observation extends to the Bannockburn Sale; and Mr Parsons' criticisms of Mr Hamilton's sales evidence.  The learned Member also gave reasons for finding that the same assumed proportions of residential and non-residential development provided an appropriate basis for determining compensation; and for not accepting that it was necessary to adopt a particular layout for the development of the land[125].  It was accordingly unnecessary to provide any further explanation for the adoption of the same rate in both the before and after cases; or for dealing with the fact that the plans on which Mr Hamilton relied did not maintain the same proportions of different types of land uses in both cases.  The learned Member's explanation for his adoption of Mr Hamilton's approach sufficiently explained why it was not necessary to test Mr Hamilton's valuation by reference to a specific apportionment of differing land uses, such as was found in his apportionment in the valuers' joint statement.  The apportionment did not reflect Mr Hamilton's approach to the determination of the value of the land.  Indeed, the learned Member explained why he considered that reference to any particular form of development should be avoided[126]; with the obvious consequence that Mr Hamilton's apportionment in the valuers' joint statement was irrelevant.
  1. [85]
    It is apparent that significant issues before the Land Court included the capacity of the land (as perceived by the prudent hypothetical vendor and purchaser) for commercial development; the extent to which the resumption affected that capacity; the appropriateness of Mr Hamilton's "blended rate" approach; and whether the sales evidence supported his valuations. Though by no means unimportant in the outcome, in the sense that alterations to them would affect the amount of compensation determined by the Land Court, Mr Hamilton's discount rate, and his assumed time for obtaining a development approval were subsidiary matters relevant to his approach to the determination of value and compensation.  The Council's submissions do not identify the way these matters were dealt with in the submissions to the Land Court and it is by no means impossible that they did not attract much attention in the presentation of issues by the parties at the end of the hearing.  There was no suggestion that Mr Ovenden, the source of the time estimate relied upon by Mr Hamilton, was crossed-examined about that estimate.
  1. [86]
    Nevertheless, the learned Member recognised that these matters were in issue, at least because of the evidence to which he referred in his reasons. The explanation for the learned Member's conclusions appears from his statement that there was no proper basis "to comminute (Mr Hamilton's) report and attempt to derive conclusions from parts of it"[127].  Some further explanation may be drawn from the immediately preceding sentence in the reasons, implicitly accepting Mr Hamilton's professional judgment[128].
  1. [87]
    Although Mr Hamilton gave some explanation for his assessment of risk, ultimately that was a matter of professional judgment. Mr Parsons' evidence on this topic, which was somewhat generalised, was also of a similar nature. This evidence could not be described as "a coherent reasoned opinion" which should be the subject of "a coherent reasoned rebuttal"[129].
  1. [88]
    Neither valuer was the source of the estimates of time required to obtain a development approval. Mr Bell's evidence appears simply to be an estimate[130], without a detailed explanation.  In those circumstances, it was sufficient for the learned Member to accept Mr Hamilton's approach, incorporating the estimate of time required for the development approval.  That conclusion is reinforced by the absence of reference to any cross-examination of Mr Ovenden regarding the matter.
  1. [89]
    The submission that the learned Member failed to provide adequate reasons for his decision, and thereby erred, is not made out.

Conclusion

  1. [90]
    The appeal should be dismissed.

PETER LYONS J

PA SMITH

MEMBER OF THE LAND COURT

WL COCHRANE

MEMBER OF THE LAND COURT

Footnotes

[1]  Appeal Record Vol 6 (AR 6) p 1120.

[2]  Reasons for judgment of the Land Court (RJ) at [24].

[3]  RJ [9]; AR 6 p 1202, para 16(i).

[4]  RJ [9]; AR 6 p 1202, para 16(ii).

[5]  AR 6 p 1202, para 19; Appeal Record Vol 3 (AR 3) p 511.

[6]  AR 6 p 1207.

[7]  AR 6 p 1207-1208.

[8]  AR 6 p 1207, para 41.

[9]  AR 6 p 1149.

[10]  AR 6 p 1155-1157.

[11]  AR 6 p 1160, para 6.1.

[12]  AR 6 p 1161, para 6.2.

[13]  Appeal Record Vol 5 (AR 5) p 1076.

[14]  AR 5 p 1074, paras 8.25-8.26.

[15]  AR 5 p 1075, para 9.5.

[16]  AR 5 pp 1070-1074; 1075, para 10.4.

[17]  AR 5 pp 1104-1105, para 1.6.

[18]  AR 3 pp 506-507.

[19]  Identified at AR 6 p 1272; with his analysis appearing at pp 1253-1268; and his application of them at pp 1273-1274.

[20]  AR 6 p 1267.

[21]  AR 6 p 1265.

[22]  AR 6 p 1262.

[23]  AR 6 p 1269.

[24]  Ibid.

[25]  See Douglas Brown, Land Acquisition (LexisNexis, 6th ed, 2009) p 250 at [4.24].

[26]  AR 6 p 1128.

[27]  See Appeal Record Vol 7 (AR 7) p 1308.

[28]  AR 6 p 1128.

[29]  AR 7 pp 1312-1316, 1320-1321, 1333-1334.

[30]  RJ [4].

[31]  RJ [24].

[32]  Ibid.

[33]  RJ [31].

[34]  RJ [39].

[35]  RJ [40].

[36]  RJ [41].

[37]  RJ [39].

[38]  RJ [59].

[39]  RJ [68].

[40]  Ibid.

[41]  RJ [69].

[42]  Ibid.

[43]  RJ [70]-[72].

[44]  RJ [72].

[45]  RJ [73].

[46]  Transcript of appeal hearing (T) 1-25, lines 13-16.

[47]  T 1-37, lines 42-44.

[48]  T 1-38, lines 39-42.

[49]  See for example T 1-36, lines 5-8; T 1-37, lines 25-31; T 1-38, lines 28-47.

[50]  See for example RJ [41].

[51]  See RJ [72]; and compare the BDA plans with the plans for Concept A and Concept B.

[52]  RJ [69].

[53]  RJ [4].

[54]  See RJ [42]-[43]; see also [68]-[69].

[55]  AR 6 p 1246, third andfifth paras.

[56]  See RJ [72].

[57]  See RJ [68], particularly the first two sentences.

[58]  See RJ [68].

[59]  See RJ [68]-[71].

[60]  See AR 6 p 1124, last two paras; p1128.

[61]  See Appeal Record Vol 2 (AR 2) pp 382-383.

[62]  AR 2 p 383, lines 16-23.

[63]  AR 2 p 384, line 3; see also AR 6 p 1274.

[64]  See Ipswich City Council v Wilson [2011] QLAC 0006 at [41].

[65]  See AR 2 p 382, lines 48-55.

[66]  See AR 2 pp 397-399; AR 7 p 1327.

[67]  See Appeal Record Vol 4 (AR 4) p 726.

[68]  AR 6 p 1269.

[69]  AR 2 p 383, line 23.

[70]  AR 2 p 383, lines 16-41.

[71]  AR 2 p 384, lines 3-4.

[72]  AR 2 pp 383, line 43 to 384, line 4.

[73]  AR 2 384, lines 6-32.

[74]  AR 6 p 1274.

[75]  AR 6 p 1267.

[76]  See AR 6 pp 1272, 1274, 1275; and in particular AR 2 p 325, lines 4-12.

[77]  By reference to Parsons’ evidence at AR 2 p 421, lines 12-16.

[78]  AR 6 p 1274.

[79]  AR 6 p 1264; see also AR 7 p 1326.

[80]  AR 2 p 334, line 15.

[81]  AR 2 p 334, lines 22-23.

[82]  See AR 6 p 1264.

[83]  AR 2 p 334, lines 49-51.

[84]  AR 2 p 334, lines 27-28.

[85]  AR 6 p 1263, 1300; Mr Parsons’ comments do not take issue with Mr Hamilton’s evidence: see AR 7 p 1326.

[86]  AR 6 p 1274.

[87]  AR 2 p 334, line 24.

[88]  AR 2 p 334, lines 34-36.

[89]  AR 2 p 334, lines 41-43; see also p 364, lines 12-17.

[90]  AR 6 p 1274.

[91]  See T 1-61, lines 16-27.

[92]  Compare Scenarios 1 and 4.

[93]  T 1-11, lines 6-8; T 1-13, lines 22-27.

[94]  RJ [39].

[95]  (1956) 95 CLR 245 (Turner), 268.

[96]  (1990) 70 LGRA 392 (Stanfield), 405.

[97]  AR 2 p 385, line 56 – p 386, line 8.

[98]  AR 6 pp 1272, 1274.

[99]  At 268; see also Stanfield at 405.

[100]  (1907) 5 CLR 418 (Spencer).

[101]  See Turner at 267-268.

[102]  (1976) 36 LGRA 254.

[103]  At 261.

[104]  Ibid.

[105]  (2010) 31 VR 451 (Love).

[106]Love at [94].

[107]  (2008) 233 CLR 259 at [51].

[108]  (1999) 199 CLR 413 at [49]-[50].

[109]  At 267.

[110]  See AR 2 pp 385-386.

[111]  RJ [50]; AR 6 p 1269.

[112]  AR 2 p 386, lines 8-19.

[113]  AR 6 pp 1270-1271; AR 2 p 386, line 19.

[114]  AR 6 p 1273-1274.

[115]  At 264.  One of the matters to which his Honour referred specifically was development costs, which in periods of continuing inflation experienced in more recent times, are unlikely to reduce; but in principle, his Honour’s observation is respectfully considered to be correct.

[116]  At 264.

[117]Camden v McKenzie [2008] 1 Qd R 39; Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219; and Sunland Group Ltd v Townsville City Council [2012] QCA 30 (Sunland Group).

[118]  The submission relied on Richard v Jager (1909) VLR 140, 147; Holman v Holman (1964) 81 WN (Pt 1) (NSW) 374, 378; and Sheahan v Woulfe [1927] St R Qd 128; see also Williamson and MacGillivray v JIA Holdings [2011] QCA 346 at [55].

[119]  RJ [68]-[69].

[120]  RJ [72].

[121]  See RJ [69].

[122]  See RJ [68]-[71], in particular [69]; see also [72].

[123]  See RJ [73].

[124]  Ibid.

[125]  See RJ [68]-[71].

[126]  See RJ [70]; see also [71].

[127]  RJ [73].

[128]  Ibid.

[129]  See Eckersley v Binnie (1988) 18 ConLR 1, 77-78, cited in other authorities, themselves cited in Sunland Group at [65].

[130]  AR 2 p 295, lines 25-38.

Close

Editorial Notes

  • Published Case Name:

    Gold Coast City Council v Dobson

  • Shortened Case Name:

    Gold Coast City Council v Dobson

  • MNC:

    [2014] QLAC 6

  • Court:

    QLAC

  • Judge(s):

    Lyons J, Member Smith, Member Cochrane

  • Date:

    25 Aug 2014

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Camden v McKenzie[2008] 1 Qd R 39; [2007] QCA 136
3 citations
Jump To
Cite 1 - [2007] QCA 136
Cite 2 - [2008] 1 Qd R 39
Cite 3 - [2008] 1 Qd R 39
Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5
1 citation
Jump To
Cite 1 - [2008] HCA 5
Crouch v Minister of Works (1976) 36 LGRA 254
2 citations
Jump To
Cite 1 - (1976) 36 LGRA 254
Cite 2 - (1976) 36 LGRA 254
Drew v Makita (Australia) Pty Ltd[2009] 2 Qd R 219; [2009] QCA 66
3 citations
Jump To
Cite 1 - [2009] QCA 66
Cite 2 - [2009] 2 Qd R 219
Cite 3 - [2009] 2 Qd R 219
Eckersley v Binnie (1988) 18 ConLR 1
1 citation
Jump To
Cite 1 - (1988) 18 ConLR 1
Ipswich City Council v Wilson [2011] QLAC 6
1 citation
Jump To
Cite 1 - [2011] QLAC 6
Kenny & Good Pty Ltd v MGICA (1999) 199 C.L.R. 413
1 citation
Jump To
Cite 1 - (1999) 199 C.L.R. 413
Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25
1 citation
Jump To
Cite 1 - [1999] HCA 25
Richards v Jager (1909) VLR 140
1 citation
Jump To
Cite 1 - (1909) VLR 140
Roads Corporation v Love (2010) 31 VR 451
2 citations
Jump To
Cite 1 - (2010) 31 VR 451
Cite 2 - (2010) 31 VR 451
Sheahan v Woulfe [1927] St R Qd 128
1 citation
Jump To
Cite 1 - [1927] St R Qd 128
Snowy Mountains Hydro-Electric Authority v Cicic (1964) 8 W.N. Pt 1
1 citation
Jump To
Cite 1 - (1964) 8 W.N. Pt 1
Spencer v The Commonwealth (1907) 5 CLR 418
2 citations
Jump To
Cite 1 - (1907) 5 CLR 418
Cite 2 - (1907) 5 CLR 418
Spencer v The Commonwealth [1907] HCA 82
1 citation
Jump To
Cite 1 - [1907] HCA 82
Stanfield v Brisbane City Council (1990) 70 LGRA 392
2 citations
Jump To
Cite 1 - (1990) 70 LGRA 392
Cite 2 - (1990) 70 LGRA 392
Sunland Group Ltd v Townsville City Council [2012] QCA 30
2 citations
Jump To
Cite 1 - [2012] QCA 30
Cite 2 - [2012] QCA 30
Turner v Minister for Public Instruction [1956] HCA 7
1 citation
Jump To
Cite 1 - [1956] HCA 7
Turner v Minister of Public Instruction (1956) 95 CLR 245
2 citations
Jump To
Cite 1 - (1956) 95 CLR 245
Cite 2 - (1956) 95 CLR 245
Walker Corporation v Sydney Harbour Foreshore Authority (2008) 233 CLR 259
2 citations
Jump To
Cite 1 - (2008) 233 CLR 259
Cite 2 - (2008) 233 CLR 259
Williamson v JIA Holdings [2011] QCA 346
1 citation
Jump To
Cite 1 - [2011] QCA 346

Cases Citing

Case NameFull CitationFrequency
Caseldan Pty Ltd v Moreton Bay Regional Council [2014] QLC 533 citations
Eumundi Group Hotels Pty Ltd v Valuer-General [2021] QLAC 23 citations
1

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