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- Unreported Judgment
Mirvac Queensland Pty. Ltd. v Valuer-General QLC 1
LAND COURT OF QUEENSLAND
Mirvac Queensland Pty Limited v Valuer-General  QLC 1
Mirvac Queensland Pty Limited
Appeal against valuation under the Land Valuation Act 2010
25 January 2019
6 December 2018
PG Stilgoe OAM
COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – GENERAL PRINCIPLES – where section 7A of the Land Court Act 2000 gave the Land Court the power of the Supreme Court for exercising its jurisdiction – whether the jurisdiction of the Land Court was limited to the remedies it could give under section 170 of the Land Valuation Act 2010 – where consent orders limiting issues in dispute did not limit the jurisdiction of the Court
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – where the appellant owned two adjoining lots – where the Valuer-General issued combined valuations of the adjoining lots – where the appellant appealed the combined valuations – whether a decision to issue a combined valuation is separate to or forms part of the valuation decision – where structures on different lots were not capable of being separately occupied because no evidence was led that they were capable of being separately leased to a separate entity
Land Court Act 2000, s 7A
Land Valuation Act 2010, s 57, s 163, s 170
Beedell Farms & Grazing Pty Ltd v The Valuer-General (1979) 6 QLCR 109, cited
Flemington Properties Pty Ltd v Raine & Horne Commercial Pty Ltd (1998) 83 FCR 411, followed
Fraser Coast Regional Council v Walter Elliot Holdings Pty Ltd  1 Qd R 13, considered
Lello v Chief Executive, Department of Natural Resources and Water  QLC 108, followed
Valuer-General v Suncorp Metway Insurance Pty Limited  QLAC 6, applied
AR Lonergan (solicitor), Colin Biggers & Paisley Lawyers, for the appellant
JP Hastie (instructed by Clayton Utz) for the respondent
- Mirvac Queensland Pty Limited owned 38 Hope St (Lot 1 on RP 148405) and 58 Hope Street South Brisbane (Lots 1 and 2 on SP 270607). They are adjoining properties.
- On 14 June 2017, the Valuer-General decided, in accordance with section 57 of the Land Valuation Act 2010 (LVA), to issue a Maintenance Valuation Notice that included 38 Hope Street and 58 Hope Street in two combined valuations. The first valuation had a valuation date of 1 October 2015 and took effect on 10 May 2017. The second valuation had a valuation date of 1 October 2016 and took effect on 30 June 2017.
- Mirvac objected to the valuations. The valuations remained unaltered by the Valuer-General’s decisions on objection. Mirvac has appealed those objection decisions.
- In deciding the appeals, the parties have agreed that I need to decide only two issues:
- Does the court have jurisdiction to consider whether the Valuer-General should have issued a combined valuation; and
- If the answer to the first question is yes, whether the properties should have been included in a combined valuation
- There is also a preliminary issue; is there any utility in hearing these appeals?
- On 28 June 2017, the Valuer-General issued two Maintenance Valuation Notices with the same valuation dates, but with separate valuations for each of 38 and 58 Hope Street. The first valuations of the lots, which each had a valuation date of 1 October 2015, had a later date of effect of 17 May 2017. The second valuations of the lots, which had a valuation date of 1 October 2016, both kept the previous date of effect of 30 June 2017.
- Given the very limited time that the combined valuations were in effect, and that they have been superseded by separate valuations, is there is any utility at all in hearing these appeals?
- Mirvac referred me to the Land Appeal Court decision of Beedell Farms & Grazing Pty Ltd v The Valuer-General. The Land Appeal Court held that, in cases where it is patent that the procedures of the Court are being purposelessly used and unnecessary costs will be incurred, the Court should endeavour to obtain a withdrawal of the appeal. However, the Land Appeal Court stressed that the Court cannot force the issue and has no power to strike the matter out for want of jurisdiction, even if there is little or no point in the exercise. The Land Appeal Court held that, even though prosecution of an appeal would be a futile and costly exercise, that was not an argument of sufficient weight to nullify the rights of objection or appeal.
- Beedell Farms concerned an interpretation of the Valuation of Land Act 1944, rather than the LVA, but its principles still apply. Even though I am not persuaded that there is any utility in these appeals, I am constrained by the reasoning in Beedell Farms. The appeals should proceed.
- The Valuer-General has three submissions as to why the Court has no jurisdiction to entertain Mirvac’s appeals. The first submission is that a right of appeal lies on a decision on an objection to the valuation of land so there can be no right of appeal from a decision to include one or more lots in a combined valuation. The Valuer-General submits that the decision to include lots in a combined valuation is “logically anterior” to the making of the valuation and not a decision which is capable of appeal to the Land Court.
- As to that submission, Mirvac has appealed decisions on objections to the valuation of land. Its notices of appeal identify the valuation, record the decisions on objection and nominate the values that it says are the correct values. Mirvac is appealing valuations of land, not the Valuer-General’s decision to include one or more lots in a combined valuation, although that “anterior decision” is one of the matters that Mirvac identifies as an error.
- The second submission is that the court’s function is limited to reducing or increasing the valuation to correctly make the valuation under the LVA. The Valuer-General says that because Mirvac is not inviting the court to reduce or increase the valuations, but is instead asking for two new separate valuations to be made, the Court therefore has no jurisdiction.
- As I have already noted, Mirvac’s notices of appeal were inviting the Court to reduce the valuations. It is not asking the Court to issue two new valuations, although that may be the consequence of my decision.
- The third submission is that, although the Valuer-General acknowledges that the Court has power to make declarations under section 7A of the Land Court Act 2000, the Court can only use that power in exercising a jurisdiction otherwise conferred upon it. Because the Court’s power is limited to amending the valuation amount, section 7A cannot be used to extend the Court’s jurisdiction in the way that Mirvac contends.
- The proposition that the Court’s jurisdiction is limited by the remedies it can give was considered by the Land Appeal Court in Valuer-General v Suncorp Metway Insurance Pty Limited and dismissed. The Land Appeal Court in Suncorp Metway identified that the valuation was issued in error because it purported to value something that was not “land” as defined by the LVA. The Land Appeal Court did not find its jurisdiction was anchored in, or limited to, its ability to vary the valuation. Rather, the Court exercised its general and overarching obligation to identify errors of law that were fatal to the validity of a valuation that issues.
- The Valuer-General has referred me to a series of cases, primarily within the Planning and Environment jurisdiction, that are consistent with the proposition that a statutory Court’s power to make declarations may only be exercised by reference to administrative law grounds. One aspect of judicial review is “whether the impugned decision was validly made.” Whether or not the Valuer-General should have issued a combined valuation is a question of validity of the decision, not, as the Valuer-General submits, a merits appeal from a fact finding exercise. The question I have to answer is in the nature of a judicial review proceeding as it is concerned with the validity of an administrative act.
- The questions I have to decide were agreed between the parties at a Court Managed Expert Evidence (CMEE) case management conference and reduced to a consent order. But for the parties’ agreement, I would be making a decision within the ordinary parameters of section 170 of the LVA and my findings about the appropriateness of the combined valuations would be simply that; findings. The parties’ sensible decision to limit the scope of the dispute between them should not change the nature of the appeals so that I no longer have jurisdiction to deal with them.
- Accordingly, I find that I do have jurisdiction to consider this issue.
Were the two lots within the description of section 57 of the LVA?
- Section 57 of the LVA provides:
- (1)Adjoining lots must be included in the same valuation if—
- (a)they are owned by the same person; and
- (i)no part of the lots is leased; or
- (ii)all of the lots are leased to the same person.
- (2)However, subsection (1) applies only if either—
- (a)not more than 1 of the lots has buildings or other structures on it that are adapted to being separately occupied; or
- (b)if more than 1 of the lots has buildings or other structures on it that are adapted to being separately occupied—the lots are being worked as 1 business unit.
- (3)In this section—
lease does not include a sublease.
- The parties have accepted that the relevant time for considering whether the two lots were within the description of section 57 of the LVA is 10 May 2017, the date the valuations took effect.
- It is fair to say that the drafting of section 57 is clumsy; that its application to the facts involves consideration of terms which are not defined in the LVA and have no particular meaning at law. However, some things are clear. At the relevant time, the lots were owned by the same entity – Mirvac – and no part of the lots was leased.
- Paraphrasing section 57, the Valuer-General must only include lots in the same valuation if:
- Only one of the lots had buildings or other structures adapted to being separately occupied; or
- If both lots had buildings or other structures adapted to being separately occupied, the lots were being worked as one business unit.
- Cases that deal with provisions equivalent to section 57 of the LVA do not appear to be concerned with the meaning of “adapted” to being separately occupied. Instead, the focus is on the characteristic of the land – its capacity to be separately occupied or let. In Flemington Properties Pty Ltd v Raine & Horne Commercial Pty Ltd, a case that concerned the Valuation of Land Act 1916 (NSW) which contains sections drafted in similar terms, the Full Federal Court stated:
“The legislation has chosen the criteria of separate occupation or separate lettings for determining whether market value is to be determined on a single or a multiple lot basis. As it is the unimproved fee simple or freehold of the land that is being valued the only relevance of the land being leased is that if it is separately leased it will be separately occupied by different lessees and is therefore appropriate to be valued as a separate parcel.”
- The Land Court adopted a similar approach in Lello v Chief Executive, Department of Natural Resources and Water when considering the LVA’s predecessor, the Valuation of Land Act 1944, which for present purposes is not materially different from the LVA. The focus of my attention should therefore be in the capacity of the buildings or structures to be leased to another entity.
- According to an affidavit of Alexandra Levy, as at 10 May 2017, 38 Hope St contained the foundations for a residential tower, a tower crane and site offices. 58 Hope St contained a mixed use development, soon to be known as Art House South Brisbane. The evidence shows that both 38 and 58 Hope Street had buildings or structures on them.
- The Valuer-General says that I should look at the actual use of the structures, not a hypothetical assessment of what they could be used for. I agree and note that this was the approach adopted by the Land Court in Lello; “the reality as it existed at the valuation date, and not to open the conditions up to unlimited future possibilities.”
- Mirvac submits that the buildings were adapted to being separately occupied because the buildings were separate projects with separate construction contracts, different names, separately marketed and, in due course, would be under separate community management statements.
- The Valuer-General points out that the first community management statement (CMS) for Art House South Brisbane was not lodged for registration until 17 May 2017. He submits that, until registration of the CMS, 58 Hope St was not yet adapted to being separately occupied. Further, the Valuer-General submits that the site offices on 38 Hope St were not adapted for separate occupation because a site shed is not a structure capable of being separately occupied.
- The registration of the CMS would not merely result in the capacity for the lots to be separately occupied, it would create new lots that could be separately owned. Until that time, 58 Hope St was one building that could only be occupied by one entity. However, Mirvac could have leased the building to a separate entity. In that sense, it was a building capable of being separately occupied.
- Mirvac submits that the site hut on 38 Hope St was capable of being separately occupied because the structure served the purpose of protecting from the elements in support of some human activity, or it is ordinarily expected to function with a substantial degree of contact with the ground. In light of Flemington Properties, I do not consider these are the appropriate criteria. Rather, the question should be whether the structure is capable of being leased to a separate entity. The site hut was placed on 38 Hope Street as an incident of its construction contract. It is not, in my view, a structure that is capable of being separately occupied, in the sense that the owner, Mirvac, could lease it to a third party.
- In my view, section 57(2)(a) of the LVA applied to the valuations, as not more than one of the lots had buildings or other structures on it that were adapted to being separately occupied.
- If I am wrong in my characterisation of the site hut as a structure not capable of being separately occupied, I must consider whether the lots were being worked as one business unit.
- The construction company was using the site hut on 38 Hope Street as a base during its construction of 58 Hope Street. Although Mirvac had different construction contracts, and different marketing programs for the resulting mixed use developments, the better view is that the lots were being worked as one business unit. Mirvac engaged the same construction company. 38 Hope Street had been used in the construction of 58 Hope Street. There is no evidence that, unlike other developers, Mirvac interposed a subsidiary company for each of the developments, so the expenses, for and, presumably, the revenue from the developments were matters solely for Mirvac. I do not see how Mirvac could argue that the structures were not being worked as one business unit.
- The answers to the questions posed to me, and I declare accordingly, are:
- The Court does have jurisdiction to consider whether the lots comprising the subject land should have been included in a combined valuation.
- Lots comprising the subject land should have been included in a combined valuation for the purposes of section 57 of the LVA.
- By letter of 4 September 2018, the Valuer-General gave notice that he had amended the site valuations. Pursuant to section 163 of the LVA, these are the valuations against which Mirvac now appeals.
- The new valuations are higher in value than the valuations Mirvac sought in its notices of appeal, but they are consistent with the agreement the parties reached at the CMEE. Mirvac does not suggest that I should exercise my discretion to reduce the valuations any further. Therefore, the appeals should be dismissed.
- It is declared that the Court does have jurisdiction to consider whether the lots comprising the subject land should have been included in a combined valuation for the purposes of section 57 of the Land Valuation Act 2010.
- It is declared that the Valuer-General was correct to include the lots comprising the subject land in a combined valuation for the purposes of section 57 of the Land Valuation Act 2010.
- The appeals are otherwise dismissed.
- The parties must make written submissions as to costs of the appeal in accordance with the following timeline:
- by 4pm, Friday 1 February 2019 the appellant must file in the Land Court Registry and serve on the respondent its submissions on costs;
- by 4pm, Friday 8 February 2019 the respondent must file in the Land Court Registry and serve on the appellant its submissions on costs in response; and
- by 4pm, Friday 15 February 2019 the appellant must file in the Land Court Registry and serve on the respondent its submissions on costs in reply.
PG STILGOE OAM
MEMBER OF THE LAND COURT
 (1979) 6 QLCR 109.
 Ibid 118.
 Ex 9, page 4, para 22.
 Ibid para 24.
  QLAC 6.
 See, for example, Fraser Coast Regional Council v Walter Elliot Holdings Pty Ltd  1 Qd R 13.
 Ibid 32, .
 Order of 27 August 2018.
 Ex 8, page 4, para 26; Ex 9, page 12, para 58.
 (1998) 83 FCR 411.
Valuation of Land Act 1916 (NSW) s 26, s 27.
 Ibid 418.
  QLC 108 –.
 Ex 5, page 6, paras 59-60.
Lello v Chief Executive, Department of Natural Resources and Water  QLC 108 .
 Ex 8, page 7, paras 52 to 55.
 Ex 9, pages 13-14, paras 67-70.
 Ex 8, page 6, para 39.
 Ex 6, pages 64-65.
- Published Case Name:
Mirvac Queensland Pty. Ltd. v Valuer-General
- Shortened Case Name:
Mirvac Queensland Pty. Ltd. v Valuer-General
 QLC 1
25 Jan 2019