Clark v Sunshine Coast Regional Council [2026] QLAC 3

LAND APPEAL COURT OF QUEENSLAND CITATION: Clark v Sunshine Coast Regional Council [2026] QLAC 3 PARTIES: Gregory Scott Clark (appellant) v Sunshine Coast Regional Council (respondent) FILE NO: LAC No 001-26 Land Court No AQL430-24 PROCEEDING: Appeal from the Land Court of Queensland ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 22 April 2026 DELIVERED AT: Brisbane HEARD ON: 23 March 2026 HEARD AT: Brisbane THE COURT: Cooper J PG Stilgoe OAM, President of the Land Court ND Loos, Member of the Land Court ORDERS: 1. The appeal against order 3 made on 18 March 2026 is allowed and that order is set aside. 2. Otherwise, the appeal is dismissed. 3. The parties may make written submissions about the costs of the appeal within 21 days. CATCHWORDS: REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – where the respondent issued the appellant a notice of intention to resume for the purpose of recreation grounds – where the appellant applied to the Court to determine their compensation entitlement under the Acquisition of Land Act 1967 – where the highest and best use of the subject Land is agreed as an improved lifestyle property – where the parties agreed that the primary methodology for valuing the subject Land is the direct comparison approach – where the appellant also used the summation method and a special value in -- 1 of 13 -- 2 reverse approach – where there were identified comparable sales considered by the valuers – whether the Court below erred in finding that Maroochy River was a “lower order” location – whether the Court below erred in finding that Sale 5 was the “most instructive” and the “most comparable” sale – whether the Court below erred in dismissing the summation method of valuation – whether the Court should have applied a special value in reverse – whether the Court below erred in failing to apply a liberal estimate – where the Court below was not in error Acquisition of Land Act 1967 s 27 Barns v Director-General, Department of Transport (1997- 1998) 8 QLCR 133 Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2) [2015] QLC 7 Clark v Sunshine Coast Regional Council (No 2) [2026] QLC 2 Clark v Sunshine Coast Regional Council [2025] QLC 32 Croghan v Hawkesbury City Council [1998] 99 LGERA 375 Dillon v Gosford City Council (2011) 184 LGERA 179 Geita Sebea v Territory of Papua (1941) 67 CLR 544 Hail Creek Coal Holding Pty Limited & Ors v Michelmore [2021] QLC 19 Halley v Minister Administering the Environmental Planning and Assessment Act 1979 [2011] NSWLEC 94 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111 Mentech Resources Pty Ltd v MCG Resources Pty Ltd (2012) 33 QLCR 43 Mitchelmore v Hail Creek Coal Holdings Pty Limited [2021] QLAC 4 Raja Vyricheria Narayana Gajapatiraju v The Revenue Divisional Officer, Vizagapatam [1939] AC 302 Vass and Lambert v Coordinator-General (No. 2) (2015) 36 QLCR 21 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2010] NSWLEC 27 Yalgan v Shire of Albert (1997-1998) 17 QLCR 401 APPEARANCES: DR Gore KC, with WDJ Macintosh (instructed by HWL Ebsworth Lawyers) for the appellant JM Horton KC, with W Isdale (instructed by Clayton Utz) for the respondent -- 2 of 13 -- 3 THE COURT: [1] In December 2023, the Sunshine Coast Regional Council resumed 43.74 hectares of land on the Yandina Bli Bli Road, Maroochy River. The land is within the rural zone and its highest and best use is as an improved rural lifestyle property or, perhaps, a hobby farm. [2] Consistent with the usual practice, valuers nominated by each side assessed the value of the land using the direct comparison methodology. Mr Kamitsis, engaged by the Council, valued the land at $5.8M. Mr Rex, engaged by the owner, Gregory Clark, assessed the value of the land at $11.25M. [3] The Court below preferred Mr Kamitsis’s evidence and found the value of the land at $5.8M. Mr Clark seeks to appeal that decision. Mr Clark’s grounds of appeal involve the following questions: (a) Did the Court below err in finding that Maroochy River was a “lower order” location? (the location question) (b) Did the Court below err in finding that Sale 5 was the “most instructive” and the “most comparable” sale? (the Sale 5 issue) (c) Did the Court below err in dismissing the summation method of valuation? (the summation method question) (d) Should the Court below have applied a “special value in reverse”? (e) Did the Court below err in failing to apply a liberal estimate? [4] The Court below also ordered that Mr Clark pay the Council 50% of the costs of the proceeding. Both parties submit that decision is wrong. Mr Clark submits that he should not pay any costs; the Council submits that Mr Clark should pay all its costs. The location question [5] This involves two sub-questions. First, is the subject land in a lower order area? Second, whether and how to account for the “scarcity premium”. -- 3 of 13 -- 4 Is Maroochy River a lower order area? [6] Only one of the sales the valuers referred to was in the Maroochy River area. That land was a low-lying property adjacent to the Maroochy River. Both valuers agreed that the sale was not comparable. All other comparable sales were in either the Maleny-Mapleton area or the Noosa hinterland. [7] Mr Kamitsis told the Court there was a clear distinction between properties in those areas and Maroochy River. [8] The Court below accepted Mr Kamitsis’s evidence that the subject land was in a “lower order” locality, stating that there was no evidence to confirm that there was a prestige or luxury market in Maroochy River. [9] Mr Clark submits that this was an erroneous conclusion, as neither party had suggested that there was any direct evidence to support that position, nor was there any evidence the other way. He submits that, as a matter of basic logic, prestige sales in two locations cannot demonstrate a different value in a third location, when there is no sale in that location that enables any such comparison. [10] Mr Clark submits that there was positive evidence for “not denigrating” the location of the subject land. Those reasons include the outstanding views, significant improvements and a quality residence. [11] Mr Rex thought that the subject land’s proximity to schools, the airport, hospitals and its easy access to the Bruce Highway would attract a particular type of buyer who sought amenities that were not available in the other two locations. [12] Mr Kamitsis acknowledged that the subject land is conveniently located to the airport, but he could not say how much of a difference that made in dollar terms because it was not borne out in the sales. He said that proximity does not translate into value. [13] Mr Kamitsis told the Court below that he had to consider all the attributes and detriments of every property, to balance location against the improvements and to look at the detrimental aspects. [14] He told the Court there was a clear distinction between the prestige areas of Maleny- Mapleton and the Noosa hinterland on the one hand, which attract international -- 4 of 13 -- 5 attention, and Maroochy River. He noted that Maroochy River is known locally as a flood plain and is the most populated area because it is the cheapest. [15] Mr Rex agreed that the Maroochy River and Maleny were two distinct markets with different price points. [16] There was evidence to support a finding that Maroochy River is a lower order market. The Court below was not in error. The “scarcity premium” [17] Mr Kamitsis was asked at the hearing whether the absence of prestige sales in Maroochy River could be due to scarcity. Mr Clark submits that Mr Kamitsis agreed with this proposition. The transcript does not support that submission. In response to the question, Mr Kamitsis said: “It – well, it could be, but there’s – there’s another – ah – explanation as well.”1 [18] Mr Clark submits that the scarcity of comparable sales undermines reliance on the notion that there was no evidence of a prestige market in Maroochy River. He relies on the High Court decision in Maurici v Chief Commissioner of State Revenue2 to submit that the subject site should attract a “scarcity premium”. [19] Maurici involved fixing the unimproved value of improved land in the exclusive Sydney suburb of Hunters Hill. State Revenue valued the land with reference to vacant land in the area. The High Court concluded that those vacant land sales were not representative of sales in Hunters Hill because, as both parties accepted, vacant land in Hunters Hill was very scarce. The High Court concluded that State Revenue erred in using sales of unimproved land because those sales were not representative of sales generally in Hunters Hill.3 [20] Maurici does not support the submission that the scarcity of prestige sales in Maroochy River demonstrates a “scarcity premium”. The High Court said that comparable sales need to be comparable and that a valuer must proceed rationally and should not be unreasonably selective.4 The issue of scarcity was relevant only because 1 Transcript 1-25, line 16 to 17. 2 (2003) 212 CLR 111. 3 Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111 at [17]. 4 Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111 at [18]. -- 5 of 13 -- 6 the valuer did not proceed rationally and was unreasonably selective. Maurici does not support the concept of a reduction for scarcity. It cannot, therefore, support the reverse – a premium for scarcity. Sale 5 [21] The Court below found that Sale 5 was the “most instructive” comparable sale. Again, there are two sub-questions about Sale 5. The first is the location issue. Given the findings above about that, we turn to the second issue. [22] Sale 5 was traversed by high voltage electricity lines and a water supply pipeline. [23] Mr Rex thought that Sale 5 was inferior whereas Mr Kamitsis though the sale was superior. Again, the Court below preferred Mr Kamitsis’s evidence. [24] Mr Clark is critical of the Court’s finding that “[t]he adverse impacts of the easements on Sale 5 might be of similar impact in terms of valuation as the flood impacts which affect the subject land.”5 [25] Mr Clark says there is no evidence to support that conclusion. He says the Court did not raise the issue at the hearing and therefore he could not respond. Mr Clark submits that, if he had been given an opportunity to respond he would have drawn attention to the permanent nature of the easements on Sale 5 as opposed to the temporal nature of the flood impacts. He submits that evidence showed the flood impacts were restricted to access and Mr Kamitsis accepted there was no hard evidence the flood impacts would affect value. [26] Mr Clark submits that it is not rational that a prudent purchaser would treat an infrequent circumstance of relatively low order as comparable to the “ever present circumstance” of the easements. [27] The Court below found that whether the value of the subject land was higher or lower than Sale 5 was determined by the influence of location. The impact of the easements was only one factor in the Court’s consideration. A complete reading of the Court’s 5 Clark v Sunshine Coast Regional Council [2025] QLC 32 at [125]. -- 6 of 13 -- 7 reasons about that sale shows that it turned on the conclusion that the residence was more modern, and it was a better rural lifestyle property. [28] The Court below was entitled to accept Mr Kamitsis’s view of Sale 5. There is no compelling reason to come to a different view. [29] As to Mr Clark’s argument that the Court below did not afford him procedural fairness because he did not have the opportunity to respond to the point – the Council points out that the requirement for procedural fairness requires a ‘fair hearing’. That involves a reasonable opportunity for the parties to present their cases. The parties had an adequate opportunity below to present their arguments about Sale 5. The summation method [30] The Court below found it unnecessary to consider the summation method. Mr Clark says that this was an error given the circumstances of the case, particularly the absence of any comparable sale in Maroochy River. He submits that the authorities recognise that it is permissible and appropriate for a Court to have reference to two or more methods of valuation, particularly where no single approach is free from criticism. [31] That submission would have weight in circumstances where the valuers did not think there were comparable sales or where they thought there was some flaw in the orthodox approach. [32] In the joint expert report (JER), both valuers adopted the comparable sale method as the appropriate valuation method. Mr Rex stated he relied on the summation method as a check valuation approach only. He never intended it to be a primary method of valuation. [33] Even if it was considered, there are flaws in its application to the present case. [34] The quantity surveyor assessed the depreciated cost of the improvements, not the value to the market. Mr Clark says that a consideration of the value to the market ignores the unchallenged statement from the High Court that straight line depreciation is appropriate.6 However, as Mr Kamitsis pointed out in oral evidence, that approach ignores market-based depreciation: the possibility of overcapitalisation or the 6 Geita Sebea v Territory of Papua (1941) 67 CLR 544 at 554. -- 7 of 13 -- 8 obsolescence of the style of the improvements. Mr Kamitsis took the example of the big shed on the property, the depreciated cost of which was $1M. He said that, in his experience, a prudent purchaser would not attribute an additional $1M value to the property because of the shed. [35] The other difficulty is that Mr Rex did not test the utility of the summation method by applying it to any other sale. If the method is valid, then all the comparable sales would, or should, have been verified. [36] As the Court below noted, the summation method produced a value for the subject land approximately 50% higher than Sale 2 on an unimproved basis. [37] There was no error below in not considering the summation method. A special value in reverse? [38] Mr Clark submits that the Courts have recognised that an adjoining owner will pay a premium for an adjoining parcel of land. [39] Mr Rex emphasised the land’s location adjoining the Parklands Conservation Park. He stated that the location offered the owner a unique opportunity to benefit from a proliferation of native fauna which traverse the land on a daily basis. He also emphasised the fact that the land was resumed to provide an Olympic BMX facility and that the land offered a unique potential for the resuming authority in establishing an Olympic venue. [40] We acknowledge that there are cases in which the Courts have applied a premium of 10% to represent that special value of a property.7 However, as the Council points out, application of the principle has its difficulties: (a) first, the concept of a reverse special value is unknown at law; (b) second, neither valuer referred to a special value in the JER. There was no evidence before the Court below as to what the indexation for a special value 7 See e.g. Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Croghan v Hawkesbury City Council [1998] 99 LGERA 375; Hail Creek Coal Holding Pty Limited & Ors v Michelmore [2021] QLC 19. -- 8 of 13 -- 9 might be. Mr Clark cannot point to the difference between the values of Mr Rex and Mr Kamitsis and explain that by the simple expedient of a “special value”; (c) third, the decision of Raja8 is of no assistance. As the Land Appeal Court has identified,9 all that Raja establishes is that: ... land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined ... but also by reference to the uses to which it is reasonably capable of being put in the future.10 The valuers agreed the highest and best use is as an improved rural lifestyle. They did not identify the potential use as an Olympics venue as a greater potential use of the land. Even if there was an oblique reference to that fact by Mr Rex, he did not assign a value to that potential; and (d) fourth, the Council was not the adjoining owner of the land. [41] There was no error below in failing to assign a premium to the value of the subject land by virtue of the advantages of adjoining land. The liberal estimate [42] In compensation cases, if there are two equally plausible results, the Court must choose the result that favours the landowner. However, if the evidence does not support one of the alternatives, then there is no doubt and the “liberal estimate” test does not apply. A doubtful result is not elevated to a plausible result by the application of the “liberal estimate” test. [43] The Court below was entitled to reject Mr Rex’s evidence. Regardless, there are not two equally plausible results. Therefore, the liberal estimate test does not assist Mr Clark. The Court below was not in error. 8 Raja Vyricheria Narayana Gajapatiraju v The Revenue Divisional Officer, Vizagapatam [1939] AC 302. 9 Mitchelmore v Hail Creek Coal Holdings Pty Limited [2021] QLAC 4, [52]. 10 Raja Vyricheria Narayana Gajapatiraju v The Revenue Divisional Officer, Vizagapatam [1939] AC 302 at 313. -- 9 of 13 -- 10 Costs [44] Section 27 of the Acquisition of Land Act 1967 states: 27 Costs (1) Subject to this section, the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under this Act shall be in the discretion of that court. (2) If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs (if any) shall be awarded to the claimant, otherwise costs (if any) shall be awarded to the constructing authority. (3) Subsection (2) does not apply to any appeal in respect of the decision of the Land Court or to costs awarded pursuant to section 24(3) or section 25(3). [45] There is tension between the words of s 27(2) of the Acquisition of Land Act and the principle that an involuntary litigant should not have an award of compensation eroded by the costs of litigation. [46] In New South Wales, there is authority for the principle that: a person who has had their land taken by way of compulsory acquisition should not bear their own costs, but rather should be allowed to access the Court to present an arguable and well organised case without being deterred by the prospect of being ordered to pay costs if the case proves unpersuasive.11 [47] Similar principles appear in the Queensland authorities.12 11 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2010] NSWLEC 27 at [35], cited with approval in Dillon v Gosford City Council (2011) 184 LGERA 179 at 63 (Basten JA). Basten JA cited other authorities in support of the same principle at [61]-[65], including the comprehensive review of authorities in Halley v Minister Administering the Environmental Planning and Assessment Act 1979 [2011] NSWLEC 94 at [43]-[46]. 12 Yalgan v Shire of Albert (1997-1998) 17 QLCR 401 at 407, point (e) on that page; Barns v Director- General, Department of Transport (1997-1998) 8 QLCR 133 at 135-136. -- 10 of 13 -- 11 [48] As to the question of costs generally, the relevant principles are stated in the Land Appeal Court decisions in: (a) Yalgan v Shire of Albert13; (b) Mentech Resources Pty Ltd v MCG Resources Pty Ltd14;and (c) Vass and Lambert v Coordinator-General (No. 2)15. [49] In Yalgan, the Land Appeal Court distilled 11 propositions from earlier cases, including: … (j) Section 27(2) of the Acquisition of Land Act 1967 should not be regarded as a legislative suggestion that, where the claim is substantially more than the amount awarded, and the amount put in evidence by the constructing authority is not substantially less than the amount awarded, the Court should not merely refrain from awarding any costs to the claimant but should award costs to the authority but should award costs to the authority (Moyses at p.274). (k) Where the Land Court is considering whether it should award costs to a constructing authority, it could be wrong to have regard merely to the amounts of the claim and of the award and of the value put into evidence by the authority. Usually it would be more relevant to enquire whether the conduct of the complainant (such as, for example, making an exorbitant claim) has been such as to force the authority, unreasonably and unnecessarily, into litigation (Moyses at p. 274) or whether the claimant has pursued a vexatious, 13 (1997-1998) 17 QLCR 401 at 406-408. 14 (2012) 33 QLCR 43 at [4]. The decision was about the Land Appeal Court’s power to award costs, but the principle has been applied by the Land Court: Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2) [2015] QLC 7. 15 (2015) 36 QLCR 21 at [15]-[56]. -- 11 of 13 -- 12 dishonest or grossly exaggerated claim or presented his case in such a way as to impose unnecessary burdens on the constructing authority or the Court (Banno at p. 53).16 [50] Vass and Lambert stated that section 27 of the ALA requires the application of a two stage process:17 (a) first, determine whether the party claiming costs is eligible for an award of costs under section 27(2) of the ALA; (b) second, determine, in the exercise of the Court’s discretion, whether costs should be awarded to the eligible party, in the circumstances of the case (s27(1)). [51] Here, the Council satisfied the first stage – the determination of compensation was nearer to the amount that it put in evidence. [52] As to the second stage: (a) Mr Clark’s claim was not vexatious or dishonest; (b) Mr Clark’s claim was not grossly exaggerated; (c) Mr Clark engaged experienced legal representatives who conducted the hearing below in an efficient and focussed way (that is, Mr Clark’s case did not impose unnecessary burdens on the Council or the Court). [53] Mr Clark presented an arguable and well organised case and ought not, in the particular circumstances of this case, have his compensation amount eroded by an adverse costs order. [54] For these reasons, we consider that the Court below erred in the exercise of the discretion in ordering costs on the basis that Mr Clark’s claim: was excessive; created a burden for the Council; and lacked the evidence necessary for its success and adequate clarity and support for the valuation opinion advanced and presented.18 16 Yalgan v Shire of Albert (1997-1998) 17 QLCR 401 at 408. 17 At [32]. 18 Clark v Sunshine Coast Regional Council (No 2) [2026] QLC 2, [77]. -- 12 of 13 -- 13 [55] Mr Clark’s appeal against order 3 made on 18 March 2026 is allowed and that order is set aside. Each party ought to bear their own costs of the hearings below. Conclusion [56] Mr Clark has not demonstrated that the Court below was in error in valuing the land. To the extent that the appeal relates to the substantive decision, it is dismissed. Orders 1. The appeal against order 3 made on 18 March 2026 is allowed and that order is set aside. 2. Otherwise, the appeal is dismissed. 3. The parties may make written submissions about the costs of the appeal within 21 days. -- 13 of 13 --