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Body Corporate for ‘Nautilus Gold Coast' CTS 5710 v Valuer-General (No. 2) QLC 5
LAND COURT OF QUEENSLAND
Body Corporate for ‘Nautilus Gold Coast’ CTS 5710 v Valuer-General (No 2)  QLC 5
Body Corporate for ‘Nautilus Gold Coast’ Community Title Scheme 5710
Appeal against valuation under the Land Valuation Act 2010
12 February 2019
29 August 2018
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – GENERALLY – where appellant objects to valuation on objection – where land zoned high density residential – where subject is non-rural land under the Land Valuation Act – where the respondent’s valuer relies upon comparable sales to determine value – where adjustments are made to developed sites for comparability
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – NATURE OF APPEAL – where appellant bears the evidentiary onus – where no independent expert evidence is called by the appellant – where the appellant relies upon its own lay evidence – where appellant relies upon Departmental policies – where appellant joins issue with the valuation process and market-based movement factor adopted by the respondent’s valuer – where appellant fails to meet evidentiary onus
Land Valuation Act 2010 s 26, s 169
Valuation of Land Act 1944 s 33
Beydoun v Valuer-General  QLAC 1, applied
Fairfax v Department of Natural Resources and Mines  QLC 11, cited
Lawson v Valuer-General  QLC 27, applied
N.R & P.G Tow v Valuer-General (1978) 5 QLCR 378, cited
Steers v Valuer-General  QLC 12, applied
G McIlwain (agent), chairman of the Body Corporate, for the appellant
P Prasad, Principal Lawyer, In-House Legal, Department of Natural Resources, Mines and Energy, for the respondent
- Body Corporate for ‘Nautilus Gold Coast’ Community Titles Scheme (CTS) 5710 is the owner of property described as Lot 1-6, on BUP 9617 Parish of Gilston with an area of 1,154 m² located at 39 Garfield Terrace, Surfers Paradise, in the Gold Coast City Council local government area.
- On 1 October 2016 the Valuer-General issued a valuation in respect of the subject property valuing it at $12,500,000 effective from 30 June 2017.
- The appellant objected to that valuation and on 18 October 2017 received a decision on objection advising that the valuation amount had been amended to $11,500,000.
- From that decision the appellant has appealed to this Court pursuant to the Land Valuation Act 2010 (the LVA).
- In this appeal the appellant contends that the appropriate valuation of the subject land should be $10,500,000.
- The land, as indicated above, is situated on Garfield Terrace and adjoins Sydney Hamilton Family Park and the Pacific Ocean. It is located on the beachfront about 1 km south of Surfers Paradise in an area characterised by the presence of high-rise residential dwellings.
- The land is a regular shaped rectangular block with 30 m of direct ocean frontage.
- Under the Gold Coast Planning Scheme the land is zoned High Density Residential without any height limit.
- The land presently has the Nautilus residential building comprised of five apartments with one apartment per floor.
The valuation process
- This is an appeal against a valuation brought pursuant to the provisions of the LVA.
- That Act made a number of significant changes to the valuation process which had previously been carried out pursuant to the provisions of the Valuation of Land Act 1944 (VLA).
- The LVA retains an obligation upon the Valuer-General to carry out a valuation of all properties throughout Queensland for the purpose of rating, land tax and other associated purposes.
- The respondent is required to comply, in its conduct, with the requirements of the LVA when undertaking the various valuations required.
- Indeed, in the current case the appellant has referred at some length to the publication produced by the Department of Natural Resources and Mines (as it then was) entitled “Statutory Valuation Procedures and Practices under the Land Valuation Act 2010” and, basically, alleges that the respondent has failed to follow the protocols set out in that publication.
- That document in its introduction describes its purposes as being:
“…a guide for those involved in the application of the Land Valuation Act 2010 (the Act) in Queensland and related particularly to valuation assessment and administrative arrangements pertaining to that Act and its annual application.
The document is issued by and under the authority of the Valuer-General Queensland to provide direction to State Valuation Service (SVS) staff. The development of these guidelines involved a range of stakeholders drawn from the public and private sectors. As well as the documents’ specific direction to the SVS, it is hoped that those other groups and individuals involved would also be cognisant of these guidelines and they are invited to act in accordance with them. The guidelines aim to provide consistency and uniformity in SVS operations across the state.”
- It is clear that that document is directed towards assisting valuers both within the Department and in private practice, as well as members of the public, to understand the obligations pursuant to the LVA.
- The LVA has brought about a change to the valuation process in so far as under the previous Act the VLA, all valuations were of unimproved value but now under the LVA, valuations are broken into two categories namely: non-rural land which embraces residential, commercial and industrial land on the one hand and rural land on the other.
- Pursuant to the provisions of the LVA the value of land to be valued by the respondent is, in the case of non-rural land, its site value which term is defined in the Act and for rural land, its unimproved value.
- The Nautilus land is non-rural land.
- Section 26 of the LVA provides a meaning to the “unimproved value of improved land” in the following terms:
26What is the unimproved value of improved land
- (1)If land is improved, its unimproved value is its expected realisation under a bona fide sale assuming all site improvements and non-site improvements on the land had not been made.
- (2)However, the land’s unimproved value is affected by any other relevant provisions of this chapter.
- Similarly, s 29 provides a meaning for the value of unimproved land in the following terms:
29What is the site value and unimproved value of unimproved land
If land is unimproved, both its site value and its unimproved value are its expected realisation under a bona fide sale.
- The Dictionary in Schedule 2 to the LVA defines “unimproved” as follows:
unimproved, for land, means land in its natural state.
- In the present case this valuation exercise is one which calls for the determination of the unimproved value of improved land.
- His Honour Member Isdale said:
“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.’
- 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.”
- His Honour Member Smith in the Lawson decision also observed as follows:
“I consider it remains a relevant feature under the LVA, to consider market value. As then President Trickett said in Fairfax v. Department of Natural Resources and Mines.
‘ 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).
 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.”’
 Despite the legislative change, it is refreshing that the views expressed by the High Court in Spencer, now well over a century ago, remain just as current and relevant today as they did when they were first uttered. It is certainly my view, at least at this stage until other authorities may prove me wrong, to continue to apply the Spencer test under the LVA.” (citations omitted)
- Their Honour’s observations accord with my own views and provide guidance to me in deciding this case.
- In addition to the changes with respect to the valuation process the regime established by the LVA also brings a change in the evidentiary onus.
- Under s 33 of the VLA the valuation made by the Valuer-General was deemed to be correct until proved otherwise either upon objection or appeal.
- The LVA does not retain that evidentiary provision but rather provides at s 169(3):
However, the appellant has the onus of proof for each of the grounds of appeal.
- The only grounds of appeal which are able to be contemplated at a hearing are those grounds stated in the valuation appeal notice filed in the Court.
- In Beydoun v Valuer-General  QLAC 1 the following appears:
“The respondent relied in the Land Court on the evidence of a registered valuer, Ms Hunter. As the learned President noted, Ms Hunter analysed three sales chosen as the most comparable considering their size, location and zoning. The appellant did not propose any other sales for consideration.
This Court said in Grahn v Valuer-General:
- (b)The basis for assessment of unimproved value is the use of sales of vacant or lightly improved parcels of land (WM and TJ Fisher v The Valuer-General (1983) 9 QLCR 44, at p. 46; R and MM Barnwell v The Valuer-General (1989) 13 QLCR 13, at p. 17).
- (e)Whilst maintenance of correct relativity is of considerable importance for rating valuations, the use of the principal of relativity should not be preferred to the exclusion of relevant (even if not ideal) sales evidence (WM and TJ Fisher v The Valuer-General (1983) 9 QLCR 44 at p. 46).
- (f)If possible, the Valuer-General should obtain uniformity between different blocks in the same land category or type, but should do so (preferably by reference to sales of comparable land) by correcting inaccuracies rather than by making an inaccurate assessment in order to secure uniform error (R and MM Barnwell v The Valuer-General (1989) 13 QLCR 13, at pp. 16-17 and cases cited in it).
For the reasons that have been given, ground of appeal ‘B’ is not a proper basis upon which to criticise the decision of the learned President which was made in accordance with the correct approach in the use of evidence of sales.” (citations omitted)
- Relevantly for the purposes of this decision, the following also appears in the Beydoun decision:
“ The appellant is not a qualified valuer of land. The only expert evidence was that given on behalf of the respondent. The expert qualified valuer provided an opinion which was persuasive to the learned President. That opinion was not contradicted by any competing expert evidence. The appellant’s opinion was to the effect that the site value should not be more than $230,000, the site value assessed by the respondent as at 1 October 2014. The appellant did not have a valuation assessment arrived at by a method which the Courts have decided would be reliable.
 It is unnecessary to decide whether the appellant’s opinion was admissible in proof of value because, even if it was, in view of the expert evidence of the respondent’s valuer, the appellant’s opinion however genuinely held, could not be persuasive. The Court notes the appellant’s disagreement with the valuer’s opinion, as demonstrated in his cross-examination of the valuer, who did not depart from the valuation opinion expressed in the written report that became an exhibit.
 This Court is not an investigating body and must rely on the evidence put before it by the parties. In J.L. and I. Qualischefski v Valuer-General, the Land Appeal Court said:
‘Neither this Court nor the Land Court in the subject jurisdiction may assume the role of an investigating tribunal requiring the Valuer-Genaral to substantiate his case. This role is in contradistinction to jurisdiction conferred under the Land Act.
In appeals of the nature of the subject, the onus which the appellant must assume is not an easy one to discharge without the assistance of a registered valuer who can lead evidence as to sales analyses and/or comparison with valuations made by the Valuer-General in respect of comparable properties.
 This Court has also recognised the reliability of valuations based on sales…” (citations omitted)
- Mr McIlwain who is the chairman of the Body Corporate appeared for the appellant.
- He filed an affidavit which became Exhibit 6 in the hearing of the appeal.
- In his affidavit Mr McIlwain embarked upon a detailed analysis of what was set out in the affidavit of Mr Smith, the valuer called for the respondent. The main thesis advanced by Mr McIlwain concerned the relativities between the land the subject of the appeal and other lots of land on the Gold Coast.
- The respondent in its written submissions to the Court has usefully summarised the appellant’s grounds of appeal in the following terms:
- ground 1 – market movement factor (or factorisation);
- ground 2 – relativity with other applied values (in particular 3 Northcliffe Terrace sale);
- ground 3 – comparable sales evidence (identical to those relied on by the respondent’s expert, Mr Smith); and
- ground 4 – statement of position (which is irrelevant for the purposes of this appeal and in any event relies on materials provided to the Appellant at the Independently Chaired Conference as part of the objection conference under the LVA).
- The respondent also validly points out that the ultimate determination of this appeal requires an opinion as to valuation evidence which is a recognised field of professional expertise.
- Placed at its highest, the evidence given under oath by Mr McIlwain is to be regarded as informed lay evidence; he not being a qualified valuer. Mr McIlwain is in fact a well experienced engineer as was evidenced by the professional and didactic manner in which he did deliver his opinions to the Court.
- The respondent called evidence by way of a report prepared by Mr Philip Smith, a valuer in the employ of the respondent.
- In his report, which became Exhibit 4 before the Court, Mr Smith identified the following specific features of the subject land:
- the subject property abuts the Sydney Hamilton K.S.C.J Family Park and has unrestricted views to the east and south east and partly restricted views to the north east.
- the subject property has a long 30 metre frontage to the ocean.
- the subject is of regular shape.
- the subject is designated High Density Residential RD 8 with Unrestricted Height.
- the subject is of significant size to allow a tower in excess of 30 levels to be developed.
- the subject is within 65 metres of the Northcliffe Surf Club and within 1 kilometre of Central Surfers Paradise.
- the subject is within 350 metres of the Northcliffe Light Rail Station.
- I did not understand Mr McIlwain to disagree with any of those descriptors.
- With respect to market conditions relevant at the time of valuation, Mr Smith informed the Court that leading up to the date of valuation in October 2016 the market for oceanfront, esplanade and well positioned dry land development sites in and around Surfers Paradise had been strong. A number of esplanade and oceanfront influenced development sites similar to the subject had been sold showing an analysed sale price dollar rate per square metre of between $8,000 per square metre and $15,000 per square metre.
- Mr Smith identified five comparable sales which he says provide the best comparative evidence for oceanfront and esplanade properties during the relevant valuation.
- All of the comparable sales identified by Mr Smith were sales of redevelopment sites which had the intention to be redeveloped in the short term. Three of those, he says, are now being redeveloped while two others are in the process of obtaining approvals for future development.
- The properties identified by Mr Smith were as follows:
- (a)3 Northcliffe Terrace, Surfers Paradise otherwise described as Lot 10 on SP 210582 with an area of 1,152 m² and 21 m of ocean frontage.
- (i)that land carried a high density residential R8 zoning the same as the subject land.
- (ii)Mr Smith’s analysis of the sale for $12,167,548 yielded a per square metre value of $10,562 per square metre based upon which Mr Smith applied a site value to that land of $11,500,000 or $9,982 per square metre.
- (b)2 Wharf Road, Surfers Paradise otherwise described as Lot 1 to 3 on BUP 1159 on land with an area of 637 m² and an ocean frontage of 14.5 m.
- (i)2 Wharf Road also carried a high density residential zoning.
- (ii)Mr Smith analysed that sale to a site value of $6,854,160 or $10,760 per square metre based upon which Mr Smith applied a site value to that land of $5,800,000 or $9,105 per square metre.
- (c)3533 Main Beach Parade, Main Beach otherwise described as Lot 11 on M 73865 with an area of 792 m² and 21 m of ocean frontage.
- (i)That land was zoned medium density residential.
- (ii)Mr Smith analysed the sale value of that property to $7,989,876 or $10,088 per square metre based upon which he applied a site value of $7,300,000 or $9,217 per square metre.
- (d)19 Broadbeach Road, Broadbeach otherwise described as Lot 75 on B 8383 with an area of 511 m² located across the street from the beachfront.
- (i)that land was zoned high density residential.
- (ii)Mr Smith analysed that sale as yielding a site value of $4,472,000 or $8,751 per square metre based upon which he applied a site value of $4,100,000 or $8,023 per square metre.
- (e)3464-3466 Main Beach Parade, Surfers Paradise otherwise described as Lots 1 and 2 on BUP 5308 and Lots 1 to 17 on BUP 3639 with an area of 1,700 m² and located across the street from the beachfront.
- (i)Mr Smith analysed the sale price to a site value of $18,368,689 or $10,805 per square metre but he did not calculate an applied site value.
- It is appropriate to quote in its entirety Mr Smith’s rationalisation for his coming to a view that the subject land should retain the valuation of $11,500,000.
- He says:
“Having regard to Ocean Front and Esplanade development site sale evidence above, a range of Analysed Values on a $ Rate / m2 of between $8,700/m2 to $10,805/m2 has been established.
All of the sales have the same planning designation (High Density Residential) as the subject apart from Sale 3 – 3533 Main Beach Parade which is situated in an inferior Medium Density zoned area. This High Density Residential zone enables developments of unlimited heights and RD8 Residential Densities where the sites have sufficient size.
Three of the sales (Sales 2, 3 & 4) do not have the size necessary to enable the maximum development potential of the sites and have either had to be amalgamated with adjoining sites or have resulted in lower height and density approved developments.
The other two sales (Sale 1 & Sale 5) are either similar in size like (Sale 1) or larger in size like (Sale 2) [sic]. Both of these sites have been able to achieve height and densities similar to or in excess of what the planning scheme allows. Sale 5 at 1700m2, is an Esplanade front site which shows $10,805/m2 and Sale 1 at 1152m2, is an Ocean Front site within 300 metres of the subject which shows $10,562/m2 and is considered the most comparable to the subject.
Considering the subject properties attributes which including its ocean front position, its 30 metre long frontage to the ocean, it’s regular shape and good development size at 1,154 m2, its position abutting the Sydney Hamilton K.S.C.J Family Park, its excellent views to the ocean and surrounds, its proximity to Central Surfers Paradise, light rail, entertainment attractions and its High Density Residential planning designation, I have adopted a rate of $10,000/m2, which is almost identical to that applied to Sale 1.”
- It is appropriate to make some observations about the approach adopted by Mr McIlwain’s challenge to the mass appraisal methodology utilised by the Valuer-General.
- The booklet issued by the Valuer-General, namely Statutory Valuation Procedure and Practices under the Land Valuation Act 2010, points out that “[t]he annual valuation process employs mass appraisal methodology, which is an effective and legitimate method for the creation of new values across a larger number of individual properties in an efficient and timely manner.”
- The appeal to which a landowner is entitled is an appeal against the value which is determined in an objection process. It is not an appeal against the valuation process.
- Once the appeal process is triggered it is a matter for the Court to determine what value should be ascribed to a particular lot of land, not to rewrite the valuation exercise for a whole area or a whole aggregation of individual lots.
- The appellant in this case has submitted that an error was made insofar as a general factor of 1.44 was applied to 35 oceanfront properties whereas, according to his submissions, the correct market-based movement factor should have been 1.35 which would have resulted in a lower valuation on the subject land.
- I do not accept that proposition.
- No evidence was provided at the hearing of this appeal which supported those contentions.
- Under cross-examination Mr McIlwain was pressed to explain how he had reached a factor of 1.35.
- He acknowledged that what he had done was take $11,500,000 as at 1 October 2016 and divide that by $8,500,000 and that produced a result of approximately 1.35 which was the factorisation that he said should be used.
- Mr McIlwain then applied that factorisation to the sale at 3 Northcliffe Terrace to get a figure of $10.66 million (rounded to 10.5) which he said should be applied to the subject land rather than the figure of $11,500,000.
- Simply put, Mr McIlwain’s contention is that the figure of $10,500,000 should be applied rather than the figure of $11,500,000 for which the Valuer-General contends. That figure, it is said, would maintain relativity with other applied values including, in particular, the land at 3 Northcliffe Terrace.
- In his analysis of each of the sales relied upon by the respondent, Mr McIlwain for the appellant, contends in each case that the analysis done by Mr Smith does “not support the Respondent’s contention that the appropriate Valuation of the subject property is $11,500,000” he does not offer any explanation of the basis upon which he makes those bare assertions.
- Mr McIlwain took Mr Smith to task on the basis that some of the comparable sales clearly had some buildings constructed on them or, in one case, had construction work underway so that they were not in a pure sense of the word “vacant lots”.
- Mr Smith explained that the preference is to start with vacant and or lightly developed lots but if such vacant sites cannot be identified then the valuer takes a developed site and makes adjustments for the effect of the development on the site.
- I do not propose to examine in detail each of the elements of analysis done by Mr McIlwain with respect to each of the comparable sales adopted by Mr Smith.
- Mr McIlwain, in my view, has focused too much upon the notion of general market movements influencing the factor which was adopted for the mass valuation exercise and has placed insufficient focus on the utility of the comparable sales identified by Mr Smith and in so doing, has failed to discharge the onus that lies upon him to satisfy the Court that the valuation for which he contends is the correct one.
- To the extent that Mr McIlwain did not call any expert evidence from a valuer and that the respondent did do so, then inevitably Mr McIlwain had an uphill task in front of him.
- Accordingly, I find that Mr McIlwain for the appellant has failed to discharge the onus of proof which lies upon the appellant and I am obliged to dismiss the appeal.
MEMBER OF THE LAND COURT
 Facts taken from Ex 5, pages 6–9.
 September 2017.
 Statutory Valuation Procedures and Practices under the Land Valuation Act 2010, page 1.
 Ch 2, Pt 2, Sub-div 4.
 Ch 2, Pt 2, Sub-div 5.
  QLC 27.
  QLC 12.
 A recent decision of the Land Appeal Court (Beydoun v Valuer-General  QLAC 1 ) endorses the observations made by President Trickett in Fairfax v Department of Natural Resources and Mines  QLC 11.
 Similar views were expressed by the Land Appeal Court in N.R & P.G Tow v Valuer-General (1978) 5 QLCR 378, 381.
 Ex 4, page 7.
 Ex 4, page 6.
 Taken from Ex 4, pages 7–11.
 Sale 2 is meant to be Sale 5 as confirmed during examination-in-chief at T 1-37, lines 15 to 16.
 Ex 4, pages 14–5.
 September 2017.
 Ex 7, page 12; Statutory Valuation Procedure and Practices under the Land Valuation Act 2010, September 2017, page 4.
 T 1-12, line 45 to T 1-13, line 19; T 1-16, line 1 to T 1-19, line 15.
 Ex 6.
 T 1-44, lines 3 to 16.
- Published Case Name:
Body Corporate for ‘Nautilus Gold Coast' CTS 5710 v Valuer-General (No. 2)
- Shortened Case Name:
Body Corporate for ‘Nautilus Gold Coast' CTS 5710 v Valuer-General (No. 2)
 QLC 5
12 Feb 2019