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Body Corporate for Bougainvillea Way North Community Titles Scheme v Valuer-General[2017] QLC 2

Body Corporate for Bougainvillea Way North Community Titles Scheme v Valuer-General[2017] QLC 2

LAND COURT OF QUEENSLAND

CITATION:

Body Corporate for Bougainvillea Way North Community Titles Scheme; Body Corporate for Avenue of Palms Community Titles Scheme v Valuer-General [2017] QLC 2

PARTIES:

Body Corporate for Bougainvillea Way North Community Titles Scheme

(appellant)

 

v

 

Valuer-General

(respondent)

FILE NO/s:

LVA199-14

PARTIES:

Body Corporate for Avenue of Palms Community Titles Scheme

(appellant)

 

v

 

Valuer-General

(respondent)

FILE NO/s:

LVA200-14

DELIVERED ON:

7 February 2017

DELIVERED AT:

Brisbane

HEARD ON:

12-13 October 2015

Submissions closed 2 December 2015

HEARD AT:

Mossman

MEMBER:

PA Smith

ORDER/S:

  1. The appeal in LVA199-14 is allowed.
  1. The value of the land subject to appeal LVA199-14 is fixed in the sum of Two Million, Nine Hundred and Forty-Five Thousand Dollars ($2,945,000) as at 1 October 2013.
  1. The appeal in LVA200-14 is allowed.
  1. The value of the land subject to appeal LVA200-14 is fixed in the sum of One Million and Forty-Five Thousand Dollars ($1,045,000) as at 1 October 2013.

CATCHWORDS:

REAL PROPERTY – VALUATION OF LAND – SITE VALUE – METHOD OF ASSESSMENT – where properties form part of the Mirage Port Douglas Scheme of Integrated Development 1988 (as amended 2007) – whether land is held as Community Titles Schemes or Building Unit Plans – whether land is owned by the Principal Body Corporate – whether Land Court should interfere with Valuer-General’s discretion to value properties as separate lots on a building unit plan pursuant to s 70 Land Valuation Act 2010.

REAL PROPERTY – VALUATION OF LAND – SITE VALUE – METHOD OF ASSESSING – where land is accessed by a secondary thoroughfare – where the Principal Body Corporate is required to make financial contributions for the upkeep of the secondary thoroughfare – whether the financial contributions to the secondary thoroughfare were adequately assessed by the respondent in its valuations.

Land Valuation Act 2010, s 70

Integrated Resort Development Act 1987

Building Units and Group Titles Act 1980

Body Corporate and Community Management Act 1997

Fairfax v Department of Natural Resources and Mines (2005) QLC 11

Steers v Valuer-General (2012) QLC 12

APPEARANCES:

JG Kallinicos, agent, each appellant

T Johnson, senior lawyer, in-house legal, Department of Natural Resources and Mines, for the respondent in both matters

Background

  1. [1]
    These matters relate to appeals brought by Body Corporate Bougainvillea Way North Titles Scheme and Body Corporate Avenue of Palms Community Titles Scheme (the appellants) against site valuations determined by the Valuer-General (the respondent) pursuant to the Land Valuation Act 2010 (the LVA). Both properties are located at Port Douglas Road, Port Douglas.
  1. [2]
    Appeal LVA199-14 relates to the property (PID5046167) of Body Corporate Bougainvillea Way North Community Titles Scheme being Lots 1-20 on Plan No. BUP70926, Parish of Salisbury, with the site area of 8,729m2. It was valued by the respondent at $3.1 million as at 1 October 2013. The appellant contends for a valuation of $579,431.
  1. [3]
    Appeal LVA200-14 relates to the property (PID5046300) of Body Corporate of Avenue Palms Community Titles Scheme being Lots 1-10 on Plan No. BUP70991, Parish of Salisbury, with a site area of 4,065m2. It was valued by the respondent at $1.1 million as at 1 October 2013. The appellant contends for a valuation of $277,965.
  1. [4]
    By consent of the parties the Court ordered on 13 March 2015 that both matters be heard together.
  1. [5]
    Each of the subject properties are located within the Mirage Resort development within the township of Port Douglas and form part of the “Mirage Port Douglas Scheme of Integrated Resort Development 1988” (as amended 2007) (the MPDSIRD).
  1. [6]
    In addition to the LVA, other legislation which is relevant to consider includes the Integrated Resort Development Act 1987 (the IRDA); the Building Units and Group Titles Act 1980 (the BUGTA); and the Body Corporate and Community Management Act 1997 (the BCCMA).

Valuation Methodology

  1. [7]
    The parties agree that the appeal sites are to be valued by the identification and application of comparable sales. This of course, as the appellant points out, includes an analysis of comparable properties. This is part of the analysis of each sale.
  1. [8]
    The parties also agree that s 70 of the LVA is the relevant section that applies when valuing approved scheme land under the IRDA.
  1. [9]
    However, the parties agree that it is unclear as to how s 70 should be viewed in circumstances where the development has matured to the stage where separate building unit plans have been created and registered, but where the land to which those plans relate also sits within a particular (residential) precinct.

Issues in Dispute

  1. [10]
    The parties are in dispute about the land that is to be valued under s 70 of the LVA.
  1. [11]
    The parties are in dispute about the ownership of the land to be valued for the purposes of the LVA.
  1. [12]
    The parties are also in dispute as to whether the appellants are Community Titles Schemes or Building Unit Plans.
  1. [13]
    The parties are also in dispute as to whether or not the cost of maintaining the secondary thoroughfare has an impact on the valuations of the subject properties.

Respondent’s Summary Contentions

  1. [14]
    The respondent argues that acting in accordance with s 70(1) of the LVA, it has correctly assessed the subject properties currently under appeal as being “Building Unit Plans” in compliance with s 70(1)(a) “the lots on a building unit plan” and has valued the land within each Building Unit Plan as a single lot.
  1. [15]
    It is the respondent’s position that the body corporate for each Building Unit Plan (in these appeals Bougainvillea Way North and Avenue of Palms) is the “owner” of the subject land that has been valued under the LVA. Accordingly, the respondent issued Annual Valuation Notices in accordance with s 79(1) of the LVA to the appellants as owners of the subject properties.

Appellants’ Summary Contentions

  1. [16]
    The appellant argues that the site value of the subject properties has not been correctly assessed in accordance with s 70 of the LVA because neither appellant is a “body corporate” within the meaning of the Body Corporate and Community Management Act 1997 (the BCCM) but are in fact community titles schemes and community titles schemes are not addressed by s 70 of the LVA.
  1. [17]
    The appellant argues that the respondent’s assessment of the site value for each subject property is also inconsistent with other relevant legislation such as the BCCM and the Building Unity and Group Titles Act 1980 (the BUGTA).
  1. [18]
    It is the appellant’s position that in accordance with the BCCM, BUGTA and the IRDA the Principle Body Corporate (PBC) is the “owner” of the land in a residential precinct, which includes the subject properties under appeal.
  1. [19]
    The appellants are of the view that the residential precinct has to be valued as a whole. Their alternate position is to separate the residential precinct into three parcels, the first being the undeveloped land, the second being the eight body corporates together with the secondary thoroughfare (otherwise known as the villa precinct) and the third being the land known as Beachfront Mirage which is already subject to a separate valuation.
  1. [20]
    Furthermore, the appellants are of the view that the respondent has not in fact exercised any form of discretion in accordance with s 70 of the LVA.
  1. [21]
    On the matter of Community Title Scheme versus Building Unity Plan, the appellants are of the view that s 330 of the BCCM applies because both appellants are “basic schemes” as defined under the BCCM Act.
  1. [22]
    The appellants are of the view that the cost of maintaining the Secondary Thoroughfare is paid both directly by the appellants and the 6 other residential bodies corporate in proportion to their respective lot entitlements as a proportion of their combined lot entitlements as well as through the Principle Body Corporate (the PBC) and that the respondent has grossly underestimated the cost of maintaining the secondary thoroughfare by simply stating that the only costs associated with the upkeep of the secondary thoroughfare are those paid by the PBC.

Jurisdiction

  1. [23]
    The parties agree that s 70 of the LVA gives the Valuer-General a discretionary power in that the section states that the Valuer-General “may” value specified parts in the site of an approved IRDA scheme as if each part were a single lot. It is noted that there is an absence of case authority interpreting s 70 of the LVA to assist the Land Court.
  1. [24]
    It is the position of the respondent that in the hearing of a valuation appeal, s 170 of the LVA allows the Land Court to confirm the valuation appealed against, or to reduce or increase the valuation to an amount it considers necessary to correctly make the valuation under the LVA.
  1. [25]
    However, the respondent further contends that the extent of the Land Court’s jurisdiction is limited to dealing with the valuations that are in issue in these appeals. It is the respondent’s position that the Valuer-General is given the discretion to choose which subsection of s 70(1) of the LVA to proceed under to value the subject properties. This choice is not in itself one which the Land Court can decide.
  1. [26]
    The respondent submits that in order for the Court to question this administrative discretion, it will need to be demonstrated by the appellants that the discretion has been exercised in a manner that goes beyond its limits as it is not permissible to simply ask this Court to exercise the discretion in a different way.
  1. [27]
    It is the appellants’ position that the respondent has not exercised any form of discretion pursuant to s 70 of the LVA and if they have it is invalid.
  1. [28]
    Further, the appellants say that if it is determined that grouping has to occur, then until such time as the extent of the grouping is identified, it is difficult to determine the relevance of the sales evidence although it is the appellants’ view that the respondent’s sales evidence has no relevance to the subject valuations regardless of the outcome of the grouping issue.
  1. [29]
    The appellants contend that the real overriding issue in dispute in this matter is whether or not certain parcels of land which are part of the Mirage Port Douglas Scheme should be valued as one. Furthermore all of the issues listed by the respondent are simply considerations which will ultimately assist the Court in determining what should and should not be grouped.

The Hearing

  1. [30]
    The appellants were represented by Mr Kallinicos, who was appointed by the chairmen of both body corporates.[1] Mr Kallinicos is a committee member of one of the body corporates. He gave evidence at the hearing. Mr Kallinicos is an accountant. He has no legal or valuation qualifications. The respondent was represented by Mrs Johnson and relied on the evidence of a registered valuer, Mr Hiatt.
  1. [31]
    An inspection of the subject lands and various sales properties, in the presence of both parties, was undertaken and the hearing was held at Mossman on 12 and 13 October 2015. Final submissions were received on 2 December 2015.

The Valuations Process

  1. [32]
    It is the responsibility of the respondent to undertake a valuation of not only the subject properties, but all properties throughout Queensland. Those valuations are the basis for rating and land tax and related purposes.
  1. [33]
    I note with approval what his Honour Isdale said in Steers v Valuer-General:[2]

“[8] The use of sales to provide comparisons of value is well established. In NR and PG Tow v Valuer-General (1978) 5 QLCR 378, the Land Appeal Court constituted by Stable SPJ, Mr Smith and Mr Carter said at page 381:

‘Courts of the highest authority have laid down that the best test of value is to be found in the sales of comparable properties, preferably unimproved, on the open market round about the relevant date of valuation and between prudent and willing, but not over-anxious parties.’

[9] This Court is required to follow the decisions of the Land Appeal Court and accordingly must prefer the evidence of comparable sales to the method contended for by the appellant, simply increasing a previous value by a factor of 10. Mr Steers did not explain why this particular multiplier and not some other one should be applied.”

  1. [34]
    Market value is also a relevant feature to consider under the LVA. As then President Trickett said in Fairfax v Department of Natural Resources and Mines:[3]

“[11]  The principles for determination of the ‘market value’ of land were established by the High Court in Spencer v The Commonwealth (1907) 5 CLR 418. In that case, the High Court found that the value of land is determined by the price that a willing but not over-anxious buyer would pay to a willing but not over-anxious seller, both of whom are aware of all the circumstances which might affect the value of the land, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding facilities, the then present demand for land and the likelihood of a rise or fall in the value of a property. (See Griffith CJ at 432 and Isaacs J at 441).

[12]  It has been well established that the unimproved value of land is ascertained by reference to prices that have been paid for similar parcels of land in Waterhouse v The Valuer-General (1927) 8 LGR (NSW) 137 at 139, Pike J said that:

‘Land in my opinion differs in no way from any other commodity. It certainly is more difficult to ascertain the market value of it but-as with other commodities-the best way to ascertain the market value is by finding what lands comparable to the subject land were bringing in the market on the relevant date-and that is evidenced by sales.’”

  1. [35]
    In essence, the Spence test[4] has been codified in s 18 of the LVA, which provides as follows:

18  What is a bona fide sale

  1. (1)
    A bona fide sale, for land, is its sale on reasonable terms and conditions that a bona fide seller and buyer would require assuming the following (the bona fide sale tests)—
  1. (a)
    a willing, but not anxious, buyer and seller;
  1. (b)
    a reasonable period within which to negotiate the sale;
  1. (c)
    that the property was reasonably exposed to the market.
  1. (2)
    For subsection (1), in considering whether terms and conditions are reasonable, regard must be had to—
  1. (a)
    the land’s location and nature; and
  1. (b)
    he state of the market for land of the same type.
  1. (3)
    To remove any doubt, it is declared that if—
  1. (a)
    there is a sale of the land in question; and
  1. (b)
    the bona fide sale tests are complied with;

the sale is a bona fide sale.

  1. (4)
    In this section—

land in question means land whose value is being decided.

  1. [36]
    Importantly, the LVA casts the following duty on the appellants at the hearing by s 169(3):
  1. (3)
    However, the appellant has the onus of proof for each of the grounds of appeal.
  1. [37]
    It should also be noted that appeals under the LVA are to be determined on what is essentially the balance of probabilities.[5]
  1. [38]
    As previously indicated, the subject lands have received site valuations under the LVA. Section 19 of the LVA relevantly provides as follows:

19  What is the site value of improved land

  1. (1)
    If land is improved, its site value is its expected realisation under a bona fide sale assuming all non-site improvements for the land had not been made.
  1. (2)
    However, the land’s site value is affected by any other relevant provisions of this chapter.
  1. [39]
    The LVA then goes on in s 23 to reveal what site improvements are:

23  What are site improvements

  1. (1)
    Site improvements, to land, means any of the following done to the land—
  1. (a)
    clearing vegetation on the land;
  1. (b)
    picking up and removing stones;
  1. (c)
    improving soil fertility or soil structure;
  1. (d)
    if the land was contaminated land as defined under the Environmental Protection Act 1994—works to manage or remedy the contamination;
  1. (e)
    restoring, rehabilitating or improving its surface by filling, grading or levelling, not being irrigation or conservation works;
  1. (f)
    reclamation by draining or filling, including retaining walls and other works for the reclamation;
  1. (g)
    underground drainage;
  1. (h)
    any other works done to the land necessary to improve or prepare it for development.
  1. (2)
    However, a thing done as mentioned in subsection (1)—
  1. (a)
    is a site improvement only to the extent it increases the land’s value; and
  1. (b)
    ceases to be a site improvement if the benefit was exhausted on the valuation day.
  1. (3)
    Also, excavating the land for any of the following is not a site improvement—
  1. (a)
    footings or foundations;
  1. (b)
    underground building levels.

Example of an underground building level—

an underground car park

  1. (4)
    In this section—

clearing vegetation on land—

  1. (a)
    means removing, cutting down, ringbarking, pushing over, poisoning or destroying in any way, including by burning, flooding or draining; but
  1. (b)
    does not include destroying standing vegetation by stock or lopping a tree.
  1. [40]
    As is apparent by the outline at the beginning of this decision, s 70 of the LVA is critical to the determination of these appeals. Section 70 provides as follows:

70  Approved scheme land under Integrated Resort Act

  1. (1)
    The valuer-general may value the land consisting of the following parts in the site of an approved scheme as if each part were a single lot—
  1. (a)
    the lots on a building unit plan;
  1. (b)
    the lots on a group titles plan;
  1. (c)
    the lots within a precinct;
  1. (d)
    the lot or lots consisting of a primary or secondary thoroughfare;
  1. (e)
    a future development area.
  1. (2)
    Terms mentioned in subsection (1) and not defined under this Act have the same meanings they have under the Integrated Resort Act.
  1. [41]
    Some confusion may arise due to the reference in s 70 LVA to the “Integrated Resort Act”, while references in this decision have already been made to IDRA. The situation is clarified by the Schedule Dictionary to the LVA which relevantly states that:

“Integrated Resort Act means the Integrated Resort Development Act 1987.”

  1. [42]
    For completeness, s 170 of the LVA deals with the orders that the Land Court may make in a valuations appeal. Section 170 states:

170  Order on valuation appeal

The Land Court may–

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

Note–

The Land Court Act 2000 and the rule under that Act apply for valuation appeals and further appeals to the Land Appeal Court–see sections 5 and 21 of that Act.

The Valuation Evidence

  1. [43]
    Whilst it is certainly true that Mr Kallinicos presented a significant amount of material to the Court both by way of evidence and submissions, it remains the fact that the only expert valuation evidence provided to the Court was that of Mr Hiatt.
  1. [44]
    Mr Hiatt provided valuation reports with respect to each appeal and a response report that relates to both appeals.
  1. [45]
    Mr Hiatt relies upon s 70 of the LVA and also refers to 13 sales which he has compared to both appeal properties. All of his sales evidence relates to vacant land.
  1. [46]
    Helpfully, Mr Hiatt presented his sales evidence by way of a summary schedule as follows:

Respondent: Sales Evidence

No.

Address

Parties

Description

Area m2

Date of Sale

Sale Price

Analysed Value

1

8 Corella St. Craiglie (Lot 185 SP161486)

H Mostaert & JW Van Santvliet to MG & LP Wharam

Residential 1 zoned vacant, level serviced site in regular shape 5.7 klm south of CBD and 1.3 klm from Four Mile Beach and 700 metres from Links golf course. Standard residential site. (Base value)

838

8/4/2013

$200,500

($240/ m2)

2

Lot 27 Downing St. Cragilie (SP204461)

QN Securities to Burnie Holdings Pty Ltd

Residential 2 zoned purchased as home site, vacant, level, serviced site in gated community fronting golf course fairway, 6.2 klm south of CBD and 1.9 klm from Four Mile Beach (drive) separated by fence from Links golf course fairway. (Premium due to golf course frontage but fenced off from direct access)

886

22/2/2013

$275,000

($310/m2)

3

81 Mitre St Craiglie (Lot 11 SP144728)

KA Bowler to JE & ML Maguire

Residential 1 zoned vacant, level serviced site in regular shape some 6.4km south of CBD and 800 metres from Four Mile Beach and fronts Links golf course. Golf frontage, but cannot access the golf course due to high fence. (Premium due to golf course frontage but limited as fenced off).

1102

1/2/2013

$335,000

($303/m2)

4

4 Andrews Cl. Port Douglas (Lot 2 RP737553)

RF & JE White to GR Burnell

Residential 1 zoned vacant level, serviced site, regular shape some 4.3 klm south of PO in CBD and 350 metres from Four Mile Beach with average to good quality homes surrounding. (Closer to town, short distance to beach)

839

29/8/2013

$445,00

($530/m2)

5

6 Mudlo St. Port Douglas. (Lot 915 PTD 2092)

Public Trustee Of Queensland to Nicole Newman

Tourist & Residential zoned vacant level, serviced site, regular shape some 580 metres south CBD and 560 metres from Four Mile Beach with unit development surrounding. Old shed improvements demolished after sale.

1012

1/12/2013

$452,000

($446/m2) $113,000/unit site

6

Lot 23 Beachfront Mirage Estate (GTP 107089)

S & M Constructions, Store Design Constructions to L & S Odinokov

Tourist & Residential zoned medium density in Beachfront Mirage estate, vacant level, serviced site, regular shape 1.5 klm south of CBD (road) and 220 metres from Four Mile Beach in a gated community title scheme with high quality homes surrounding. Gated community, similar distance to CBD as subject, “Residential Precinct.”

800

5/4/2013

$500,000

$625/m2

7

82 Mitre St. Port Douglas (Lots 901 & 904 C2253)

Klinger, Latimore, O'Connell & Vaughan To D Perry & p Walker

Residential 1 zoned vacant undulating, un serviced site, regular shape double block 6 kilometres south of CBD, 800 metres access via Mitre Street back to Four Mile Beach past Sea Temple Resort. It is 135metres through lowland mangrove scrub to creek mouth, vegetated dune and mud flats is this large site purchased as a single dwelling site. Not connected to any services and requires substantial fill.

23,290

10/05/2013

$860,000

$37/m2

8

28 Murphy St. Port Douglas (Lot 123 PTD2094)

J J & FH Feenie to D J & AJ Cotter

Residential 1 zoned Vacant steeply sloping partly serviced elevated site with access from shared service lane and located 185 metres, (road) from CBD and some 480 metres walk to Four Mile Beach. Steep forested block, views over town and inlet once developed. (Close to CBD, steep site to develop, views)

2,023

9/8/2013

$950,000

$469/m2

9

42 Murphy St. Port Douglas. (Lot 20 RP907331)

Dean Whitestone Pty Ltd to CL Graham

Residential 1 zoned vacant, level serviced site with access from driveway easement to Island Point Road and located 900 metres from the CBD, and some 300 metres walk down to Four Mile Beach. Levelled block, excellent views over town and down Four Mile Beach. Excellent views, near CBD, level

1000

15/09/2011

$1,000,000

($1,000/m2)

10

7-9 Crowrie St. Port Douglas (Lot 18-19 SP212652)

Our Stuff To A Furche & K Marshall

Residential 1 zoned vacant, level, located some 5 klm south of PO in CBD and 40 metres from Four Mile Beach as beach front separated by strip of vegetation. Amalgamated double site. Comprised sale on one line. From anxious vendor.

1,423

14/7/2011

$1,100,000

($773/m2)

11

11 Sand St. Port Douglas (Lot 19 PTD 20934)

J Murday & A Timms (PR) to Parkworth Pty Ltd Trust

Residential 2 medium scale vacant, level serviced site and located 900 metres from the CBD, and some 90 metres walk to Four Mile Beach through forest reserve across Sand Street

843

6/8/2010

$1,440,000

($1,708/m2) $480,000/unit site

12

2 Reef St. Port Douglas (Reef Estate) Lots 6 & 7 SP160319

J & DR Lucas To Greenlip Pty ltd

Residential 1 zoned vacant level site located some 5 klm south fo CBD (road) and 65 metres from Four Mile Beach through beach protection strip in a gated community title scheme with high quality homes surrounding

1743

20/09/2013

$2,075,000

($1,196/m2)

13

Esplanade (corner Macrossan St) Lot 1 PTD20918

CJ Cooper to Port Douglas Holdings Pty ltd

Tourist & Residential Multi Unit high scale vacant, level serviced site with access also from Garrick St. and located 900 metres from the CBD, and some 40 metres across street to Four Mile Beach.

607

12/8/2010

$2,225,000

($3,665/m2)

  1. [47]
    In addition to the sales evidence set out above, Mr Hiatt also went into some detail to describe each sale and, importantly, made a comparison between each sale property and each appeal property. Below are two tables that I have prepared based on evidence by Mr Hiatt in Exhibit 8, being his report for the Bougainvillea Way North appeal, and Exhibit 9, being his report for the Avenue of Palms appeal. These tables are to be read in conjunction with the sales evidence set out in the table above. The important piece of extra information is Mr Hiatt’s comparison of each sale to each appeal property.
  1. [48]
    I will deal first with the Bougainvillea Way North appeal sales. Mr Hiatt’s sales comparisons are as follows:

Bougainvillea Way North Appeal Mr Hiat’s comparison of sale properties to subject property

Sale 1

Vastly inferior property to the Bougainvillea Way North site.

Sale 2

Vastly inferior property to the Bougainvillea Way North site.

Sale 3

Vastly inferior property to the Bougainvillea Way North site.

Sale 4

Vastly inferior property to the Bougainvillea Way North site.

Sale 5

Vastly inferior property to the Bougainvillea Way North site.

Sale 6

Vastly inferior property to the Bougainvillea Way North site.

Sale 7

Vastly inferior property to the Bougainvillea Way North site.

Sale 8

Vastly inferior property to the Bougainvillea Way North site.

Sale 9

Significantly inferior property to the Bougainvillea Way North site.

Sale 10

Vastly inferior property to the Bougainvillea Way North site.

Sale 11

Significantly inferior property to the Bougainvillea Way North site.

Sale 12

Inferior property to the Bougainvillea Way North site.

Sale 13

Significantly inferior property to the Bougainvillea Way North site.

  1. [49]
    I now turn to consider Mr Hiatt’s sales comparisons with respect to the Avenue of Palms appeal. I have prepared a like table below for Avenue of Palms as I did for Bougainvillea Way North. The table is as follows:

Avenue of Palms appeal Mr Hiat’s comparison of sale properties to subject property

Sale 1

Vastly inferior property to the Avenue of Palms site.

Sale 2

Vastly inferior property to the Avenue of Palms site.

Sale 3

Vastly inferior property to the Avenue of Palms site.

Sale 4

Significantly inferior property to the Avenue of Palms site.

Sale 5

Significantly inferior property to the Avenue of Palms site.

Sale 6

Significantly inferior property to the Avenue of Palms site.

Sale 7

Inferior property to the Avenue of Palms site.

Sale 8

Inferior property to the Avenue of Palms site.

Sale 9

Inferior property to the Avenue of Palms site. There is an offset in value due to the excellent views and proximity to the CBD against this medium sized site of Avenue of Palms.

Sale 10

Overall considered a comparable property due to the premium paid for proximity to Four Mile Beach which is an offset against this medium sized site, with golf course frontage and better locality to the CBD of Avenue of Palms.

Sale 11

Overall comparable to superior in value due to the superior locality to Four Mile Beach, and closer proximity to CBD. This premium is considered to be offset in value to the larger but medium sized site; golf course fronted Avenue of Palms.

Sale 12

Overall superior in value due to the superior locality to Four Mile Beach with premium paid for this double site. This premium is considered to be an offset in value to the larger but medium sized site; golf course fronted Avenue of Palms.

Sale 13

Overall superior in value due to the much superior locality to Four Mile Beach and the CBD. This premium is considered to be an offset in value to the larger but medium sized site; golf course fronted Avenue of Palms.

  1. [50]
    In Exhibit 10, Mr Hiatt prepared a response report to the material provided by the appellants with respect to both appeals. The response report, like the individual reports, is detailed and spends much time answering the appellants’ criticisms of Mr Hiatt’s sales.
  1. [51]
    The general tenner of the response made by Mr Hiatt, and his overall views with respect to the appeals, can be found from the following extract from Exhibit 10.[6]

Mirage Villa Sales within the 8 BUPS

Both parties have referred to the sales of villas within the “Residential Precincts” of the Mirage, (Refer Page 9 of Witness Statement).

  • The appellant has argued that the villas in un-renovated condition (i.e. includes obsolescence) have sold between $400,000 to $500,000 for 2 bedrooms, while 3 bedrooms are around $700,000 and 4 bedrooms are around $1,000,000. (Refer Attachment A, page 4 Notice of Appeal). I interrupt this argument to mean that the capital value for the 25 year old Bougainvillea Way North BUP would be approximately $15,000,000. This Is based upon 8 four bedroom villas, 6 three bedroom villas and 6 two bedroom villas. Furthermore, the capital value for the 25 year old Avenue of Palms BUP would be approximately $5,500,000 as the sum of 4, three bedroom villas and 6, two bedroom villas at these prices.
  • It is my opinion that the values of the villas based upon the sales evidence was higher than the appellants (Refer Valuation Reports, page 13 for Bougainvillea Way North and Avenue of Palms). It is my opinion that the values un-renovated (i.e. includes obsolescence) were $575,000 for 2 bedrooms villas, while 3 bedrooms villas were $775,000 and 4 bedrooms were $1,100,000 for Bougainvillea Way North BUP and a little less for Avenue of Palms BUP, culminating in a capital value of approximately $17,000,000 for Bougainvillea Way North BUP and $6,000,000 for Avenue of Palms BUP.
  • There is not a large difference in the two views of the capital value of these properties as abovementioned. Based upon my experience as a valuer in this market for the past decade both privately and with the government, it is my opinion that the current land values for these 25 year old properties are well within acceptable levels as a proportion of the capital values that I have adopted, at $3,100,000 for Bougainvillea Way North BUP and $1,100,000 Avenue of Palms BUP.
  • I note that the appellant refers to two nearby 4 bedroom villas that are within Bougainvillea Way North being Villa 159 (Lot 18 BUP70926) and Villa 161 (Lot 19 BUP 70926) to argue his case of a decline in values. (Refer Page 10 of Witness Statement).
    1. I confirm that Villa 159 did sell for $1,700,000 during the property boom in 2005 and it is noted that the unimproved land value at that time was $5,200,000 for Bougainvillea Way North BUP on 8,729m2.
    2. The appellant is also comparing a current (June 2015) negotiation that fell through at $1,250,000 on the nearby Villa 161 to indicate a decline in values. An appropriate decline of land values in line with the market has already been adopted by the Valuer General since 2005 and now at $3,100,000 or some 40%, which is more than that observed in this example.
    3. It is also noted that the Villa 159 is currently (August 2015) on the market for $1,900,000 with local agents.

Market Comments:

I disagree with the appellants argument that sites with a potential subdivision or multi-unit development are “worthless” nor do I agree that nearly every sale that was relied upon in the valuation of a multi-unit site use has been used for single dwelling purposes. (Refer page 7-8 Witness Statement). Of the sales I have relied on:

  • Eight sales are Residential 1 zoning (single dwelling) of which one had a Development Approval for 13 lots (82-90 Mitre Street) as discussed and the value of that land is englobo or as advised by the purchaser as a large home site.
  • Two sales are Residential 2 zoning (multi unit) development of which on is part of a large single dwelling development within the Palmer Sea Reef Estate. (Refer sale 2 Valuation Report) And the other was developed as a house for the holiday accommodation market. (Refer sale 11 Valuation Report)
  • Three sales are within the Tourist & Residential (multi unit) development of which one sale is vacant on the Esplanade (Refer sale 13 Valuation Report) and could be either units or dwelling, one is vacant within the Beachfront Mirage surrounded by high end single dwelling development (Refer Sale 6 Valuation Report) and the last sale which is vacant was advised to be for single dwelling purposes (Refer sale 5 Valuation Report).

I disagree with the appellants argument that many sites in Port Douglas capable of being used for multi unit developments and subdivisions are being used as home sites. (Refer page 7-8 Witness Statement)

  • While some of the sales within multi-unit areas have been developed as single dwellings, this is not new in Port Douglas, where the holiday market accommodation of homes tends to be an exclusive sector and is a competitive product in this region.
  • During the valuation period there was a development approval for multi-unit development in the close vicinity, being the nearby 57-59 Garrick Street, a 2,023m2 corner site with 4 single level villas, which have since been built and are on the market and selling.
  • Furthermore, it has recently come to my attention that a Decision Notice CA 167/2014(424108) of a 5 villa multi unit development requested on the 30th April 2014 was approved by the Douglas Shire Council for 11 Craven Close, Port Douglas being Lot 2 on RP741341. This property sold for $670,000 on the 1st August 2013 on a site of 2,334m2 and had a single dwelling on site.

It is evident that the market has continued to develop properties for multi-unit purposes and it is my opinion that the land is in line with residential sales evidence and not “worthless”.

Conclusion

This Response Report responds to a number of key issues including the Valuation Approach, the response to the appellants interpretation of ownership, the PBC development codes and Douglas Shire Council town planning aspects, the sales evidence and comparison and the valuation assessment.

The Witness Statement prepared by the Appellant’s representative, Mr John Kallincos, dated 12 June 2015 does not cause me to adjust any aspect of my valuation methodology or my valuations assessment of the subject properties.

Appellants’ Contentions

  1. [52]
    Mr Kallinicos for the appellants has provided lengthy, detailed and careful considerations in what are deceptively complex appeals. The position of the appellants is perhaps best summarised by Mr Kallinicos’s conclusion to the response to the respondent’s final submissions where he had this to say:[7]

Conclusion

There is very clear sales evidence to suggest that the valuations of the subject sites are inflated dramatically. The respondent cannot continue to disregard sales one after the other for land which is clearly of similar use if not superior use and size and rely on sales of land which are significantly smaller than the subject sites and used for totally different purposes which appeal to a totally different class of purchaser and then pretend that those uses are permissible on the subject sites when they are not. The variation in underlying land values between the Sheraton Villas both within the resort itself as well as when we compare the Sheraton Villas to other resorts is inexplicable. Finally it is clear that the respondent’s interpretation of the relevant legislation is at best selective and heavily skewed towards producing an outcome. It is clear that the respondent has not factored into the valuations the fact that the PBC and the PTBC even exist let alone the impact that they have on the subject sites. It is clear that the respondent has not factored into the valuations that the PBC and the PTBC are both body corporates and that the legislation in the BUGTA apply to them as well to the appellants, if the appellants are not Community Title Schemes. The respondent has failed to address sections of BUGTA that apply specifically to layered body corporates. As for Section 70 of the LVA again for numerous reasons it is apparent that any discretion under this section has either never been considered in relation to the subject sites and if it has it has been applied incorrectly.

We fully appreciate that the legislation that applies in this instant is quite complex and involves at least 5 separate acts and the sections involved have probably never been considered in a court of law which makes it difficult for both parties. Even if it is not appropriate to group all or some of the lots that make up the Mirage scheme it does appear based on the sales evidence at hand and the valuations applied to surrounding properties as well as other resorts in Port Douglas that the current valuations are inflated and that the valuations that we have determined on our objections should apply.

  1. [53]
    There are also two procedural aspects of the appellants’ submissions which I must give consideration to. The respondent complains that the appellants have attempted to introduce new evidence to the Court by way of further documents being attachments A, B and C to the appellants’ final submissions. Of course, such documents were presented after the evidence had closed and there was no application for reopening. I agree with the respondent that it is not appropriate for Mr Kallinicos to attempt to have these documents introduced this way. This should not be taken as a criticism of Mr Kallinicos, because it is not my opinion that Mr Kallinicos set out in any way to act inappropriately in this matter, but rather identifies the difficulties faced by non-legally qualified agents representing appellants in appeals such as these. For completeness, I should add that even if the attachments A, B and C were taken into account, my conclusions with respect to both appeals do not alter.
  1. [54]
    The second issue relates to a new question raised by the appellants’ final submissions which is to ask whether the application of s 70 of the LVA overrides s 62 of BUGTA. The respondent has correctly pointed out that this point was not the subject of any notification during any part of the appeal process in either matter until the final submissions. I tend to agree. Again, had this been a significant plank that the appellants wished to base their appeals on, they should have set out same at the outset rather than waiting until so late in the process.

The Respondents’ Submissions

  1. [55]
    The respondents’ submissions adopt a standard approach in assessing the relevant valuation legislation and the Court’s role in these appeals and the valuation evidence. Much of those submissions have already been covered in either my earlier commentary on the various pieces of legislation or in other aspects set out in the appeal. However, what the respondent has also specifically focused on has been the issue with respect to the application of s 70 of the LVA, the structure of the IRDA, the application of BUGTA, and the BCCM. To assist the reader in understanding the respondents’ case with respect to these aspects, I set out below relevant extracts from the respondents’ submissions.[8]

“Valuation Methodology

  1. The LVA tasks the Respondent with the responsibility of carrying out valuations of all properties throughout Queensland for the purpose of rating, land tax and other associated purposes. Accordingly, when undertaking its valuation obligations under the LVA, the Respondent must identify the parts which are to be valued for lands developed and subdivided under the IRDA.
  1. Both Building Unit Plan 70926 “Bougainvillea Way North” and Building Unit Plan 70991 “Avenue of Palms” are situated in Port Douglas within the Mirage Resort Development. The land use and planning provisions for the Mirage Port Douglas are covered by the IRDA and not the Douglas Shire Planning Scheme. The IRDA provides the ‘legislative backbone’ for the Mirage Scheme of Integrated Resort Development.
  1. The structure of the IRDA which requires the division of a site into precincts with specified names and intended development generally is similar to a zoning of land for residential or other purposes. A precinct must be created before final development can occur by way of building units or group titles plan for residential development. The scheme specifies the maximum number of lots into which a residential precinct may be subdivided.
  1. A precinct is a large site containing land that is ultimately developed through the registration of “initial lot” subdivisions within the precinct to create sites for residential developments and then further subdivision into secondary lots to create individual development sites and subsequent registration of a building units or group plan title plan over each “secondary lot”.
  1. To illustrate as regards the subject properties, part of the initial lot (being Lot 133 RP 739814) was subdivided into Lot 19 on RP749467 comprising 8729 m2, which was then registered as building unit plan 70926 on 18 July 1989 (Bougainvillea Way North). Part of the initial lot (being Lot 133 RP739814) was subdivided into Lot 30 on RP749467 comprising 4065m2, which was then registered as building unit plan 70991 on 20 November 1989 (Avenue of Palms).

…

  1. The Hotel Precinct, which contains the Mirage Resort Hotel, shops and car parks effectively, sits in the middle of these residential developments with the Beachfront Mirage Estate, Bougainvillea Way North, Bougainvillea Way West, Bougainvillea Way East and Bougainvillea Way South all located north of the Hotel Precinct. Pandanus Way West, Pandanus Way East, Pandanus Way South and Avenue of Palms are located south of the Hotel Precinct.
  1. The access areas that run through the Residential Precinct are called the ‘Secondary Thoroughfares’ which are owned by the Mirage Port Douglas Resort Principal Body Corporate (PBC). The PBC has responsibility to maintain, manage and control secondary thoroughfares and levies members for costs.

…

  1. Under section 70(1) of the LVA there is a discretion provided to value certain parts as if each part were a single lot.
  1. The creation of the subject properties has been addressed in paragraph 24 above resulting in the registration of Building Unit Plan 70926 (Lots 1-20 Bougainvillea Way North) and Building Unit Plan 70991 (Lots 1-10 Avenue of Palms).
  1. The Respondent acting in accordance with section 70(1) of the LVA has assessed the subject properties as being ‘building unit plans’ in compliance with section 70(1)(a) “the lots on a building unit plan” and has valued the land within each building unit plan as a single lot. Annual Valuation Notices were then issued to the owners of the land as required by section 79(1) of the LVA.
  1. It is the Respondent’s submission that it has acted in accordance with the LVA and has correctly valued the subject properties, under section 70(1)(a) of the LVA, the lots on each of the two building unit plans as, in each case, a single lot.

The Land to be Valued

  1. The Appellants contend that the PBC is the owner of the subject properties under appeal and has linked this contention to their grounds of appeal about the land to be valued, namely that the Residential Precinct should be valued as one lot.
  1. This argument is based on an assertion that by virtue of section 139(1) of the IRDA the PBC is the ‘proprietor’ of land within th Residential Precinct.
  1. The crucial element in the Appellants argument is the meaning of the word ‘proprietor’ in section 139. To understand the provisions within section 139 it is necessary to refer to the interpretation provisions set out in section 138 of the IRDA.
  1. An IRD scheme can only be created over freehold land. For section 139, the term ‘proprietor’ is defined in section 138 of the IRDA as being the freehold owner. Therefore references to the ‘proprietor’ of land in section 139(1) are references to the freehold owner registered as such under the Land Titles Act 1994.
  1. With this understanding in mind, it follows that section 139(1) of the IDRA (sic) is properly interpreted as stating that those persons who are the freehold owners of all land within a Residential Precinct (before it is subdivided into building units (BUP) or group title (GTP) lots) become members of the Principal Body Corporate.
  1. However, the Appellant’s argument overlooks the fact that once final development occurs (and the secondary lot is subdivided by way of GTP or BUP), then section 139(3) of the IRDA provides that the body corporate created by the registration of that plan shall become a member of the PBC.
  1. With these factors in mind then the section 138 definition of ‘proprietor’ and section 139(3) of the IRDA combine with the result that the ‘proprietor’ which is a member of the Principle Body Corporate, is the body corporate for each BUP or GTP development.
  1. Accordingly, it is the Respondent’s submission that the body corporate for each building unit plan (including Bougainvillea Way North and Avenue of Palms) is the “owner” of the land that has been valued respectively under the LVA and it is those entities that have been issued Annual Valuation Notices in accordance with the LVA.
  1. The assertion that section 139 or any other provisions constitutes the PBC as a “proprietor” of BUP or GTP land is based on a misunderstanding of the legislation.

Application of the BUGTA

  1. Support for the Respondent’s submission regarding ownership of the land is found in the BUGTA, which continues to have full application to building unit plans forming part of an IRD scheme.
  1. Despite the advent of the BCCM, the transitional provisions in the BCCM did not provide for any transition from the BUGTA for building units and group titles forming part of an IRD scheme. Instead the 1980 Act continues to apply to such schemes.
  1. Section 62 of the BUGTA refers to the valuation of a parcel under the LVA. A ‘parcel’ is (all of) the land contained in a BUP or GTP. Section 62 then continued on and states in clear terms that, for LVA purposes, the parcel is to be valued as a single parcel as if it had a single owner, and that the body corporate is taken to be the owner for all purposes of the evaluation, including for objections and appeals.
  1. The Appellants arguments that neither is a ‘body corporate’ within the meaning of the BCCM (but are in fact “Basic Schemes” under that Act) overlooks the fact that the BCCM has no application to building unit plans forming part of an IRD scheme. The BUGTA continues to have full application.

Historical comments

  1. Even consideration of the historical comments made by the then Minister for Local Government Main Roads and Racing, RJ Hinze, when the IDR Bill was introduced in Parliament in March 1987, fail to lend support to the Appellants arguments concerning the PBC:
  • “The Bill provides a new code for the subdivision of land which recognises a mix of different forms of freehold title, including group titles and building unit titles, together with a management structure which properly provides for the ongoing maintenance of a private road system and other common areas for the benefit of all who reside within the development.”
  • “Representation on the primary thoroughfare body corporate is to be determined by the approved scheme but will always include each lot owner or his representative, either personally or by way of the principal body corporate or a nominee of that body corporate”.
  • “The main purpose of the principal body corporate is to own and maintain all secondary thoroughfares in perpetuity for the on-going benefit of all residential unit-holders only, irrespective of whether such units are registered on a building unit plan or a group titles plan … Each unit owner will be represented on the principal body corporate by a representative of the body corporate which was crated by the registration of the plan of survey which established his lot under the provisions of the Building Units and Group Titles Act”.
  1. It is for these reasons that the Respondent maintains that it has correctly valued the subject properties in accordance with section 70(1)(a) the LVA.” (citations omitted)
  1. [56]
    It is also relevant to take into account the conclusion set out in the respondents’ submissions in reply:

Conclusion

  1. The Respondent disputes all claims made by the Appellants regarding the Respondent’s interpretation or application of section 70 of the LVA.
  1. The Respondent clearly outlined the issues in dispute and its position on each in the Respondent’s Summary as filed on 9 November 2015. The Respondent’s submissions have addressed the relevant legislation, including the LVA provisions and the role of this Court in the appeal process as well as the valuation methodology used to value the subject properties.
  1. Throughout the appeal process, there has been consistency in the Respondent’s arguments concerning section 70 of the LVA and ownership of the land to be valued for the purposes of the LVA. Wheras the Appellant’s arguments, in contrast, have changed focus concerning the relevant legislation and its application to the valuations of the subject land and attempts in this eleventh hour of the appeal process to bring new information and issues to this Court for consideration and determination.
  1. The Respondent maintains that it has acted correctly in valuing these properties under section 70(1)(a) of the LVA and submits that the Court should dismiss these appeals and confirm the valuations in the amounts contended for by the Respondent Valuer-General.

Determination

  1. [57]
    To begin with, I wish to apologise to the parties for the length of time it has taken to deliver these decisions. As the parties are aware, since the conclusion of the submissions in this matter and continuing as at the time of delivery of this decision, I have been involved in the hearing of the longest case in the history of the Land Court of Queensland in a highly urgent, complex matter. Furthermore, during the same period I had another lengthy highly complex and urgent matter to deal with. This is of course not an excuse; all judicial officers must balance their workload to ensure a timely provision of decisions in all matters, be they urgent or not.
  1. [58]
    Although it will be of little comfort to the parties, I wish to make it known that on at least four separate occasions I have set aside time to carefully consider all of the evidence in the two appeals under consideration and all of the submissions and legal arguments in these rather complex and unique appeals. Each time, unfortunately, I have not been comfortable with my final conclusions, so I have placed the appeals to one side and returned to them again later.
  1. [59]
    An underlying concern that I have is that there is a certain logic to the course that the appellant has approached the disposition of both of these appeals. From a lay perspective, I understand very well the points that the appellant is seeking to make. However, each time I have considered this matter in detail, I have been drawn back to the clear submissions by the respondent which I have been unable to fault with respect to the manner in which the respondent has applied s 70(1)(a) of the LVA and the interrelated issues relating to IRDA and BUGTA and BCCM. Put simply, it is my view that the respondent has correctly articulated the law in this matter. Or, put another way, the appellants’ have failed to show an error on the part of the respondent insofar as s 70 of the LVA is concerned.
  1. [60]
    It follows that, on the fundamental questions raised by the appellants in both appeals, their arguments must be rejected. I simply adopt the submissions set out by the respondent with respect to its legal reasoning in the paragraphs above.
  1. [61]
    That however is not the complete end of the matter as far as the appellants’ appeals are concerned. In addition to the intriguing legal argument in this matter, there is also of course the question of the valuation evidence. Again, I am placed with circumstances, just as I have been in multiple cases in the past, where I have the professional evidence of an expert valuer against lay sales evidence. This does not mean that the lay evidence cannot be successful; I have had many cases where I have found in favour of lay appellants against one of the respondents’ valuations. However, as set out in numerous authorities, the appellant certainly has a mountain to climb to overturn the expert valuation evidence.
  1. [62]
    Were I to spend the next 30 pages of this decision closely detailing every aspect of each sale referred to in the evidence, there may be some minor points here or there that fall the way of the appellants, but overall the general thrust of the expert evidence of Mr Hiatt has not been able to be disturbed save for one important element.
  1. [63]
    In Exhibit 5, Mr Kallinicos stated as follows:

…The secondary thoroughfare is actually part of the residential precinct and it is correct to say that all residents within the residential precinct have a legal right of access to any part of the residential precinct, in particular the secondary thoroughfare and the improvements thereon regardless of which residential body corporate they may be occupying. Furthermore all lot owners in the various residential body corporates equally share the cost of maintaining the secondary thoroughfare and the improvements thereon including the landscaping, the pools, the roads and the services. The cost of maintaining the secondary thoroughfare is approximately $12000 per annum per lot entitlement. This is a legal obligation by virtue of section 10(4) of the Building Units and Group Entitlement Act 1980 which states “lots in a re subdivision shall carry the rights and burdens effecting lots in the original plan.” Each residential body corporate is levied according to the number of lots that have been allocated to it. The suggestion that the rights of residents within the residential precinct extends to the hotel pools is false. The hotel pools are not part of the residential precinct they are part of the hotel precinct. Not only are the hotel pools physically outside the residential precinct the lot owners and their guests within the residential bodies corporate have no legal right to access the hotel pools either directly or through the resident bodies corporate or through the overriding controlling entity of the residential precinct namely the Principal Body Corporate. Residents of the residential precinct do have access to land and easements that form part of the Primary Thoroughfare Body Corporate this in no way gives them access to the hotel precinct even though some of the easements traverse the hotel precinct in so much as they give residents of the residential precinct additional access points to the beach. The only way residential lot owners can access the hotel pools is to enter into a lease agreement with the hotel owner. Any right under a lease agreement is irrelevant for valuation purposes because leases are to be disregarded in a fee simple valuation.

  1. [64]
    Whilst it is certainly nothing special for owners of properties contained within a body corporate (unit holders) to pay body corporate fees including fees for common access, in my view the additional levy of some $12,000 per annum of which Mr Kallinicos has given evidence with respect to maintenance costs for the secondary thoroughfare is significant. I note that such amount is in addition to other body corporate fees ordinarily payable by unit holders. Importantly, I also note that the sum of $12,000 is not the total cost to each of the subject sites but is the costs per unit holder and the total payable for each subject site is clearly many multiples of $12,000 per annum.
  1. [65]
    In my view, the imposition of the significant fee for the secondary thoroughfare access is an issue that Mr Hiatt should have had further regard to in reaching his valuations of the appeal properties. Mr Hiatt has certainly assessed the added value that comes to an owner because of the secondary thoroughfare rights; however, Mr Hiatt has not in my view taken into account that these additional benefits come at a significant annual cost.
  1. [66]
    The difficulty arises in trying to put a dollar figure on the imposition of the secondary thoroughfare annual costs so as to reflect properly in the unimproved valuation of each subject parcel of land. Just as valuation evidence is far from being an exact science, so to must my valuation of the discount to be applied because of the high annual cost of the secondary access must also be a matter of judgment, informed of course, by the totality of the evidence placed before me in this matter.
  1. [67]
    The appellants of course contend for valuations which are very significantly lower than those as applied by the respondent. Given the limited scope of their success, they cannot be successful in having the valuations reduced by that amount. Given the quantum of the annual payment for the secondary thoroughfare, I can see justification for reducing each valuation by an amount of not less than 3% but not more than 7%. Despite the lack of precise evidence in support of the quantum of a reduction, I must do the best that I can on the evidence before me.
  1. [68]
    Taking all factors and the evidence such as it is into account, I have decided to reduce the valuations with respect to each appeal by an amount of 5%. I am satisfied that the appellants have put forward enough evidence to justify this level of reduction in light of the special costs associated with the secondary thoroughfare and that such evidence has not been specifically countered by the evidence of the respondent. I also accept that had this issue been more fully subject to evidence and submissions, such amount could have been significantly different.
  1. [69]
    Accordingly, as regards appeal LVA199-14, the order will be that the appeal is allowed and the valuation is fixed in the sum of Two Million, Nine Hundred and Forty-Five Thousand Dollars ($2,945,000) as at 1 October 2013.
  1. [70]
    As regards LVA200-14, the appeal is allowed and the valuation is fixed at One Million and Forty-Five Thousand Dollars ($1,045,000) as at 1 October 2013.

Orders:

  1. The appeal in LVA199-14 is allowed.
  1. The value of the land subject to appeal LVA199-14 is fixed in the sum of Two Million, Nine Hundred and Forty-Five Thousand Dollars ($2,945,000) as at 1 October 2013.
  1. The appeal in LVA200-14 is allowed.
  1. The value of the land subject to appeal LVA200-14 is fixed in the sum of One Million and Forty-Five Thousand Dollars ($1,045,000) as at 1 October 2013.

PA SMITH

MEMBER OF THE LAND COURT

Footnotes

[1]  T 1-5, lines 43-45.

[2]  [2012] QLC 12.

[3]  [2005] QLC 11.

[4] Spence v The Commonwealth (1907) 5 CLR 418.

[5]  See Donald Neil Meiers and Florence Myrtle Meiers v Valuer-General [2012] QLC 19 at [27].

[6]  At pp 12-14.

[7]  Page 8-9.

[8]  Respondents’ submissions, extracts, para 21–50.

Close

Editorial Notes

  • Published Case Name:

    Body Corporate for Bougainvillea Way North Community Titles Scheme; Body Corporate for Avenue of Palms Community Titles Scheme v Valuer-General

  • Shortened Case Name:

    Body Corporate for Bougainvillea Way North Community Titles Scheme v Valuer-General

  • MNC:

    [2017] QLC 2

  • Court:

    QLC

  • Judge(s):

    Member Smith

  • Date:

    07 Feb 2017

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
Fairfax v Department of Natural Resources and Mines [2005] QLC 11
2 citations
Jump To
Cite 1 - [2005] QLC 11
Cite 2 - [2005] QLC 11
Meiers v Valuer-General [2012] QLC 19
1 citation
Jump To
Cite 1 - [2012] QLC 19
NR and PT Tow v The Valuer-General Redland Shire (1978) 5 QLCR 378
1 citation
Jump To
Cite 1 - (1978) 5 QLCR 378
Spencer v The Commonwealth (1907) 5 CLR 418
2 citations
Jump To
Cite 1 - (1907) 5 CLR 418
Cite 2 - (1907) 5 CLR 418
Steers v Valuer-General [2012] QLC 12
2 citations
Jump To
Cite 1 - [2012] QLC 12
Cite 2 - [2012] QLC 12
Waterhouse v The Valuer-General (1927) 8 LGR NSW 137
1 citation
Jump To
Cite 1 - (1927) 8 LGR NSW 137

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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