Moreton Bay Regional Council v Caseldan Pty Ltd

This case considered a valuation accepted by the Land Court and then varied by the Land Appeal Court, in respect of compensation for the resumption of land pursuant to the Acquisition of Land Act 1967. It considers the appropriate approach of the Land Appeal Court to reviewing the decision of the Land Court, including observing that the Land Appeal Court’s review is not restricted to errors of law and that it may intervene upon factual issues without an error of law being present. The decision also contains some interesting consideration of some of the various grounds of appeal argued before the Court of Appeal, and their characterisation as questions of law or fact.

Gotterson JA, McMurdo JA and Bond J

24 April 2017

The applicant in this matter queried the valuation of resumed land by the Land Appeal Court, and sought the reinstatement of a previous assessment of the Land Court pursuant to the Acquisition of Land Act 1967. The discrepancy between the two assessments amounted to some $2.3 million.

The Land Appeal Court’s decision-making technique

The applicant had contended in oral submissions that in substituting its own valuation the Land Appeal Court incorrectly treated the matter as an appeal de novo, and not an appeal by way of rehearing, “set[ting] out from scratch … because it thought it identified errors of law which did not exist”. Referring to the reasons for judgment of the Land Appeal Court, Gotterson JA (McMurdo JA and Bond J agreeing) regarded that submission as misconceived both as to what the Land Appeal Court did and with respect to when that court may intervene where factual error is apparent. [24]. Gotterson JA clarified that the Land Appeal Court is not restricted to reviewing errors of law by the Land Court. The Land Appeal Court may intervene and substitute its own finding of fact if it is of the view that the finding below was erroneously made because, for example, no or insufficient weight was given to evidence which would lead to a contrary, or otherwise different, finding. [29]. His Honour considered that there was no justification for imposing upon the Land Appeal Court’s jurisdiction, constraints applicable to the review by courts of decision-making for legal error. [30].

Access – alleged misconstruction of the Intrapac decision

The applicant criticised the reasoning adopted by the Land Appeal Court contending that it erred in adopting the decision of the Planning and Environment Court in Intrapac Parkridge Pty Ltd v Logan City Council [2014] QPELR 49 as factually analogous. [41]. The court rejected that criticism on the basis that it was, in substance, a criticism of the reasoning by analogy adopted by the Land Appeal Court. Any such alleged error would be an error of fact, and not of law, and therefore could not ground an appeal to the Court of Appeal.  [42]–[43].

Zoning weight – alleged adoption of an erroneous test

The applicant further alleged that the Land Appeal Court had erroneously applied provisions of the Sustainable Planning Act 2009, in particular, s 326(1). [45].  Dispensing of that ground, the court’s view was that the Land Appeal Court’s conclusion related to a matter of fact, namely, the weight that a hypothetical purchaser would give to the current zoning of the resumed land in carrying out the balancing exercise of weighing it as a counterbalance to factors favourable to obtaining mixed use development approval. In the event an error had been made in arriving at that conclusion, it would be one of fact and not law and accordingly could not found a viable ground of appeal. [51].

Alleged errors with respect to offers

Evidence of nine unaccepted offers for the resumed land was adduced before the Land Court member, who determined that the appropriate course was to place no weight on them given five were conditional, three were not regarded as genuine, and one was aged. Those conclusions were ultimately challenged in the Land Appeal Court. [54]. The Land Appeal Court’s reasoning is set out at [59]. The applicant acknowledged that unaccepted conditional offers can be used as a “check” but alleged that the Land Appeal Court had instead used those offers as primary evidence for determining the value of the land. [61].  The applicant contended that the error was to be inferred from the differences in the two valuers’ respective valuations and the extent to which those exceeded the difference between the determined value ($4.1 million) and certain of the offers. [61].  The court rejected the contention that such an inference could be drawn. [63]–[67]. As there was no basis for drawing the inference, there was no basis for contending that the Land Appeal Court had erred.

The court also confirmed, in case there was doubt, that there is no basis for any contention that verbal offers were irrelevant to the value of the land. [69]. The court did accept that there had been one error of law with respect to the Land Appeal Court’s categorisation of one of the offers as unconditional but that error did not affect its valuation of the resumed land. [83].

In the circumstances the court refused to grant leave to appeal. [85].

A de Jersey