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Trondage Enterprises Pty Ltd & Anor v Valuer-General QLC 11
LAND COURT OF QUEENSLAND
Trondage Enterprises Pty Ltd & Anor v Valuer-General  QLC 11
Trondage Enterprises Pty Ltd & YFG Shopping Centres Pty Ltd
LVA009-15 and LVA010-15
Application for determination of preliminary questions
Orders made 27 March 2015
Supplementary reasons delivered 5 May 2015
27 March 2015
The application is refused.
Practice and procedure – Orders sought for determination of separate or preliminary questions – whether just and equitable to grant order – Uniform Civil Procedure Rules 1999 r 483(1) applies by virtue of Land Court Rules 2000 r 4 – identification of grounds of appeal – binding nature of grounds of appeal under s 169(1) Land Valuation Act 2010.
Valuation of Land – easements – effect of easement in determining site value – s 32 Land Valuation Act 2010 – date of registration of easement – s 82(1) Land Title Act 1994.
Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495
Land Title Act 1994
Land Valuation Act 2010
Land Court Rules 2000
Uniform Civil Procedure Rules 1999
Mr A Lonergan, of Counsel, for the appellants
Mr SP Fynes-Clinton, of Counsel, for the respondent
- This decision provides supplementary reasons for my decision of 27 March 2015 to refuse an application by the respondent Valuer-General that two questions be set down for hearing as separate or preliminary questions.
- On 27 March I said:
“… my decision is that I refuse the application for these issues to be heard as a separate preliminary point. I’m not satisfied that the easement issue is the only ground in issue between the parties, in relation to this appeal as a whole And, in that circumstances, I can’t see the utility of dealing with the easement as a separate issue. I think the appeal should be dealt with as a whole and all the grounds that are in issue should be determined at one hearing”
- The appellants in the substantive appeals, Trondage Enterprises Pty Ltd and YFG Shopping Centres Pty Ltd, are the owners of a property situated in Scarborough Street, Southport. They have challenged the site valuation of the subject land issued by the respondent Valuer-General, as at 1 October 2013, of $38,600,000. The appellants estimated the site value of the property to be $26,600,000 in the Notice of Appeal to this Court.
- The appeal property is the site of the Australia Fair Shopping Centre at Southport. It consists of:
- (a)freehold land to the east of Scarborough Street, Southport, fronting Marine Parade and with an outlook over the Southport Broadwater;
- (b)freehold land to the west of Scarborough Street, Southport; and
- (c)in appeal LVA010-15, an air space lease above Scarborough Street, Southport which connects the two parcels.
- Easement No. 715852460 (the easement) was registered on 25 June 2014. It is described as one for “right of light and air” purposes. Counsel for the respondent, Mr Fynes-Clinton, said that the easement:
- (a)burdened the eastern land by restricting the height of building on that land; and
- (b)benefited a substantial part of the western land in that, for the purposes of potential future redevelopment, views from that part of the western land (at least above the first few floors) across the eastern land to the Southport Broadwater will be preserved and secured.
- The application, as amended, sought orders that the following two questions be set down for hearing as separate questions in the appeals:
- Whether, for the purposes of s 32 of the Land Valuation Act 2010, the existence and effect of Easement No 715852460 is required to be considered by the Court in the appeals in circumstances where:
- (i)the valuation date for the valuation appealed against is 1 October 2013;
- (ii)the title to the land the subject of the appeals which is asserted to be benefited and burdened by that easement is an indefeasible title under the Land Title Act 1994;
- (iii)Easement No. 715852460 was not registered under the Land Title Act 1994 until 25 June 2014.
- If yes to A, whether, for the purposes of s 32 of the Land Valuation Act 2010, Easement No. 715852460 has no effect on the proper determination of the site value of the properties under appeal, for the reason that the purchaser of the appeal properties under a bona fide sale would have an unconstrained power to extinguish that easement immediately upon that sale.
- The respondent’s application was supported by an affidavit of Mr PS Prasad filed on 13 March 2015. Mr Prasad is a solicitor employed as a legal officer by the Department of Natural Resources and Mines.
- Mr Prasad set out the valuation history of the subject property in relation to the valuation as at 1 October 2012, that is, the valuation issued the year prior to the valuation under appeal in this matter. Mr Prasad said that the parties had participated in an independently chaired conference in relation to the 2012 valuation which resulted in a written agreement that the site value of the subject property was to be determined at $38,600,000. Subsequently, the respondent issued formal decision on objections notices, allowing the objections and determining the site value of the subject property at $38,600,000, as at 1 October 2012.
- In due course, the respondent issued an annual valuation notice determining the site value of the subject property at $38,600,000 as at 1 October 2013 which is the valuation in issue in these appeals. Mr Prasad formed the view that, having reviewed the appellants’ particulars filed on 13 February 2015, the appellants’ primary contention that the site value should be determined at $26,600,000 was based on the proposition that an allowance was to be made for an easement (light and air purposes) registered on the title of the subject property on 25 June 2014. Accordingly, Mr Prasad said, what was in issue in the appeals was the allowance to be applied as a deduction to reflect the asserted impact of the easement.
- As counsel for the respondent, Mr Fynes-Clinton, submitted it is not a simple task to identify the grounds of appeal in the notice of appeal. However pursuant to a Court order, the appellants filed particulars of their grounds of appeal on 13 February 2015. Four grounds were identified:
Ground 1: the site value does not reflect the burdening impact of Easement No. 7158524660.
Ground 2: the site value does not reflect the physical characteristics of the land or constraints on the use of the land.
Ground 3: the site value is not supported by property sales.
Ground 4: the site value does not demonstrate uniformity with valuations of other comparable parcels of land.
- Following Ground 4 there is a sub-heading in the particulars, “Allowance for Restrictive Easement” and below that is the following:
“The Appellants assessment of the Site Value includes an allowance for the restrictive easement as per Mr RS Jones’ decision GPT Re Limited (as responsible entity) & Anor v Department of Natural Resources and Water  QLC 0078.
Our primary approach is a 20-30% allowance for the easement leaving a value range based off the existing settled site value of $38,000,000 from $30,400,000 - $26,600,000. This method supports our primary approach of $29,300,000.
Our secondary approach is an 80% discount to the ‘blue sky’. The restrictive easement above the shopping centre which protects the view corridor for the western property known as Lot 1 RP 180080 has been referred to as the ‘blue sky’ above the shopping centre. … We have discounted this ‘blue sky’ by 80% as it has a material impact on allowable GFA and design for the property. This leaves a rounded valuation of $29,000,000.”
- The respondent accepted that Grounds 1 and 3 of the appellants’ particulars were properly raised by the notice of appeal. The respondent made no submission about whether Grounds 2 and 4 were properly raised in the particulars. Both parties accepted that the effect of s 169(1) of the Land Valuation Act 2010 (the Act) was that the appellants are bound by the grounds of appeal as stated in the notice of appeal.
- The respondent’s application was made under r 483(1) of the Uniform Civil Procedure Rules 1999 which, by virtue of r 4 of the Land Court Rules 2000 applies:
“483 Order for decision and statement of case for opinion
- (1)The court may make an order for the decision by the court of a question separately from another question, whether before, at, or after the trial or continuation of the trial of the proceeding.”
- In Reading Australia Pty Ltd v Australian Mutual Provident Society Branson J summarized the circumstances in which an order such as that requested by the respondent may be made. For the purposes of this decision, I have accepted Mr Fynes-Clinton’s paraphrase of Branson J’s formulation:
- (a)the question must involve a conclusive or final decision based on concrete or established agreed facts which will quell a controversy between the parties;
- (b)where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are, on any fairly arguable view, relevant to the determination of the question, are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined;
- (c)the issues should be “ripe” for separate and preliminary determination in the sense that they constitute the clear basis upon which a party has framed its case, so that their determination will resolve the whole of the controversy to which the issues relate;
- (d)factors which tend to support the making of an order include that the separate determination of the question may:
- (i)contribute to the saving of time and cost by substantially narrowing the issues for trial, or even to dispose of the action;
- (ii)contribute to the settlement of the litigation;
- (e)factors which tell against the making of an order include that the separate determination of the question may:
- (i)give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial;
- (ii)result in significant overlap between the evidence adduced on the hearing of the separate question and at trial – possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding;
- (iii)prolong rather than shorten the litigation.
Ultimately the issue for the Court in determining whether to exercise the discretion and make an order for a separate determination, is whether it is just and convenient for the order to be made.
- Mr Fynes-Clinton contended that the proposed questions were appropriate for determination as separate or preliminary points for two reasons.
- The first was that, as the easement was not registered on the title of the subject land until 25 June 2014, the effect of s 82(1) of the Land Title Act 1994was that the easement was not in existence in fact or in law as at the date of valuation (1 October 2013), for the purpose of s 32 of the Act which provides that:
- (1)In deciding the value of land, the existence and effect of a relevant easement must be considered.
- (2)In this section –
relevant easement means an easement, registered under the Land Act or Land Title Act, for which the land is the dominant or servient tenement.”
- Accordingly, Mr Fynes-Clinton submitted, the question of whether the easement was to be taken into account for the valuation as at 1 October 2013 was a simple matter of construction of s 82(1) of the Land Title Act and s 32 of the Land Valuation Act. That was a short question that required no factual enquiry and, if the respondent was correct in the way in which the appellants would frame their case, that was the end of the easement issue and the site valuation of the property was $38,600,000 as at 1 October 2013.
- Alternatively, Mr Fynes-Clinton submitted, even if the respondent failed on the first question, as there is but one owner of both the dominant and servient tenements, and as that would remain the case in the event of a bona fide sale, the ability of the purchaser of the appeal parcel to remove or otherwise vary the easement after purchase had the effect that, under s 32, the effect of the easement must necessarily be nil, regardless of the particular terms of the easement or the areas affected by it. The valuation evidence was completely irrelevant to this issue.
- Mr Fynes-Clinton accepted that Ground 3 of the particulars was a conventional valuation ground and raised nothing suitable for determination as a separate or preliminary question. However Mr Fynes-Clinton submitted, relying on the affidavit of Mr Prasad, that the substantive question which separated the parties was not one relating to changes in market evidence between the 2012 and 2013 valuation dates, or otherwise about the analysis and application of sales to the subject.
- While counsel for the appellants, Mr Lonergan, accepted that the easement was not registered until 25 June 2014, he submitted that there was no utility in determining the respondent’s first question separately as the question of how the easement affected the property was ultimately a valuation matter.
- Mr Lonergan did not accept the respondent’s formulation of the extent of the dispute between the parties. He submitted that all of the grounds of appeal were live and remained in contention between the parties. In particular, Mr Lonergan said, Ground 3 that the site value was not supported by property sales was in contention and the appellants did not accept that the property sales demonstrated that the value of the subject land, without the easement, was $38,600,000 as at 1 October 2013. He submitted that the appellants were not bound by the respondent’s valuation as at 1 October 2012 and that it was open to the appellants to reconsider the application of the sales evidence as at 1 October 2013, even though the relevant sales occurred prior to 1 October 2012.
- Accordingly, Mr Lonergan submitted, the question of the impact of the easement remained a valuation issue as well as a question of law and accordingly there was no utility in determining the impact of the easement separately from the consideration of all the issues between the parties.
- I do not consider that it would be just and convenient to determine the questions formulated by the respondent as separate or preliminary questions. While the first question formulated by the respondent, as to whether the easement was relevantly in effect as at the date of valuation, may be framed as a question of law, there is an underlying question of fact as to how and when the easement was created. For example, the easement may have been created in equity prior to the date of registration. There was no evidence before me on that issue. Although that in itself would not prevent the determination of the first question as a separate issue, it is necessary to identify the whole of the dispute between the parties, in order to weigh up whether there is utility in dealing with the proposed question as a preliminary point.
- The fundamental basis underlying the respondent’s submissions was that the effect of the material set out in the appellants’ particulars under the sub-heading “Allowance for Restrictive Easement” was that there was no dispute between the parties as to the market evidence applicable as at the 2013 valuation date. Mr Lonergan rejected that formulation. At this stage of proceedings, I must accept Mr Lonergan’s submission that the effect of the market evidence is in issue as I am not prepared to construe the particulars of the notice of appeal to the effect that the only issue between the parties is as to the impact of the easement. The particulars clearly identify four grounds of appeal. Although the drafting of the material under the sub-heading may be construed as the respondent contends, that is not its only possible construction. The material may also be construed as an alternative argument to the four grounds of appeal immediately preceding it. It seems unlikely that the appellants would go to the trouble of identifying four grounds of appeal and then negate those grounds by contending, effectively, that the only matter in issue is the impact of the easement.
- Mr Fynes-Clinton submitted that any purchaser of the subject property would be able to remove or vary the easement after the purchase was completed. Assuming, without deciding, that that is correct, it does not necessarily follow that the effect of the easement is nil, for the purposes of s 32 of the Land Title Act. It remains a question of evidence as to how the market would treat the easement, in valuation terms. A preliminary hearing is not an appropriate venue for the determination of such an issue.
- Given the matters that appear to be in contention between the parties, there is the possibility that the litigation will be prolonged rather than shortened by separating out the issues identified by Mr Fynes-Clinton. In particular some of the questions as to the impact of the easement are or have the potential to be valuation questions and there is little discernible merit in requiring the valuation evidence to be provided in tranches. Indeed there are likely to be difficulties in separating out the valuation questions in relation to the impact of the easement from the other valuation evidence, leading to confusion and possible prolongation of the litigation.
- In those circumstances I have refused the application.
PRESIDENT OF THE LAND COURT
 "169 Nature of hearing
(1)The hearing must be limited to the grounds stated in the valuation appeal notice.
(2)The appeal must be by way of a rehearing.
See also section 256 (Particular evidentiary provisions for valuation appeals).
(3)However, the appellant has the onus of proof for each of the grounds of appeal."
 “4 Application of Uniform Civil Procedure Rules
(1)If these rules do not provide for a matter in relation to a proceeding in the court and the Uniform Civil Procedure Rules 1999 (the uniform rules) would provide for the matter, the uniform rules apply in relation to the matter with necessary changes.
(2)For subrule (1), an originating process under these rules is to be treated as if it were a claim under the uniform rules.”
 (1999) 217 ALR 495 at 498, 499.
 Section 82(1) of the Land Title Act 1994 provides that:
“82 Creation of easement by registration
(1)An easement over a lot or part of a lot may only be created by registering an instrument of easement.”
- Published Case Name:
Trondage Enterprises Pty Ltd & Anor v Valuer-General
- Shortened Case Name:
Trondage Enterprises Pty Ltd & Anor v Valuer-General
 QLC 11
05 May 2015