Eumundi Group Hotels Pty Ltd v Valuer-General [2021] QLAC 2

LAND APPEAL COURT OF QUEENSLAND CITATION: Eumundi Group Hotels Pty Ltd v Valuer-General [2021] QLAC 2 PARTIES: Eumundi Group Hotels Pty Ltd ACN 893 413 454 (appellant) v Valuer-General (respondent) FILE NO: LAC006-21 Land Court No LVA269-18 DIVISION: Land Appeal Court of Queensland PROCEEDING: Appeal from the Land Court of Queensland ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 22 September 2021 DELIVERED AT: Brisbane HEARD ON: 15 June 2021 HEARD AT: Brisbane THE COURT: Boddice J FY Kingham, President of the Land Court PG Stilgoe OAM, Member of the Land Court ORDERS: 1. The appeal is allowed. 2. The decision and orders made on 13 November 2020 by the Land Court in LVA 269-18 are set aside and substituted by the following orders: a. The appeal against the Valuer-General’s valuation is allowed. b. The valuation as at 1 October 2017 of Lot 5 on RP196821, Property ID 444294 having an area of 8,944 m2 and located at 161 Cotlew Street, Ashmore is Three Million, Five Hundred and Fifteen Thousand Dollars ($3,515,000). -- 1 of 30 -- 2 3. Each party must bear their own costs of the appeal unless a party applies for costs by filing and serving brief written submissions within 14 days. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – ERROR OF LAW – ADEQUACY OF REASONS – where the Valuer-General valued the land for rating and taxing purposes at $3,800,000 – where the appellant objected to the valuation and then appealed against the objections decision which confirmed that valuation - where the Land Court allowed the appeal and valued the land at $4,500,000, the amount contended for by the Valuer-General on appeal – where the appellant appealed against that decision alleging the learned Member either failed to consider material evidence and to resolve crucial arguments, or failed to give adequate reasons about those matters – where the Court allowed the appeal REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – where the Land Appeal Court reheard the appeal to determine the correct valuation - where the Valuer-General maintained the correct value is $4,500,000 – where the appellant argued it was $3,000,000 - where the valuers agreed the land should be valued using the direct comparison method – where the Court considered the valuers’ competing views about the selection and analysis of comparable sales – where the Court made adjustments to the appellant’s valuer’s valuation in deciding the correct value is $3,515,000 Land Court Act 2000 s 7(a), s 7(b) Land Valuation Act 2010 s 169(3), s 170(b), s 172 Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1998) 65 LGRA 410, cited Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541, cited Chief Executive, Department of Natural Resources and Mines v Kent Street Pty Ltd [2009] QCA 399, cited Commonwealth Custodial Services v Valuer-General (2007) 156 LGERA 186; [2007] NSWCA 365, cited De Ieso v Commissioner of Highways (SA) (1981) 27 SASR 248; (1981) 47 LGRA 412, cited DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, cited Doherty v Commissioner of Highways (1974) 32 LGRA 328, cited Eumundi Group Hotels Pty Ltd v Valuer-General [2020] QLC 37, considered Gold Coast City Council v Dobson [2014] QLAC 6 (2014) 35 QLCR 279; [2014] QLAC 6, cited -- 2 of 30 -- 3 Intertherm Pty Ltd v The Crown (1978) 5 QLCR 21, cited ISPT Pty Ltd v City of Melbourne [2008] VSCA 180, cited ISPT Pty Ltd v Melbourne City Council [2008] 20 VR 447; [2008] VSCA 18, cited Kelly v Western Australian Planning Commission [2006] WASC 208, cited Macarthur Central Shopping Centre Pty Ltd as TTE v Valuer General (No.2) [2016] QLC 80, cited Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111, cited Maurici v Chief Commissioner of State Revenue [2005] NSWLEC 20, cited Valuer-General v Body Corporate for ‘Tennyson Reach’ [2018] QLAC 7, cited Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295, cited Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156, cited APPEARANCES: RN Traves QC, with S Marsh (instructed by Collins Biggers & Paisley) for the appellant R Anderson QC, with JP Hastie (instructed by In-house Litigation Unit, Department of Resources) for the respondent Boddice J, Kingham P and Stilgoe M The appeal [1] This appeal concerns the correct valuation for rating and taxing purposes of land owned by Eumundi Group Hotels Pty Ltd at 161 Cotlew St, Ashmore, used for a drive through bottle shop, tavern, and associated retail. [2] Eumundi objected to the Valuer General’s issued valuation of the land (at $3,800,000), and then appealed to the Land Court against the Valuer-General’s decision to confirm the valuation. [3] Despite that confirmation, when the appeal came on for hearing the Valuer General conceded the issued valuation was incorrect and submitted the Land Court should decide the correct value of the land.1 Eumundi contended that was $3,000,000; the Valuer- General argued for $4,500,000. [4] The learned Member found the correct value was the amount contended for by the Valuer-General. He rejected Eumundi’s valuation evidence (given by Mr Ladewig) and 1 Land Valuation Act 2010 s 170(b). -- 3 of 30 -- 4 accepted that led by the Valuer General (given by Mr Bale). Eumundi appeals against that decision. [5] Before this court, the Valuer General submitted the appeal is all about whether Mr Ladewig’s evidence was wrongly rejected and what should occur in consequence,2 but Eumundi’s grounds of appeal are not so confined. [6] It is true Eumundi asserts error in the learned Member rejecting Mr Ladewig’s evidence, as well as quantity surveying evidence on which he relied (grounds 1, 2, 3, 7). However, Eumundi also asserts the learned Member should not have accepted Mr Bale’s evidence, (grounds 4, 5, 8)3 and that he did so without an effective evaluation of the totality of the evidence (ground 9). [7] For reasons that follow, the court has decided the appeal must be allowed on ground 9. Respectfully, the learned Member either failed to determine crucial arguments about Mr Bale’s selection and analysis of comparable sales, or he failed to give adequate reasons about those matters. That constitutes an error of law. [8] As foreshadowed to the parties, the Court will rehear the appeal on the evidence before the Land Court and substitute its own decision for the decision under appeal.4 The Court will address the arguments made about the remaining grounds of appeal, to the extent they remain relevant, in giving reasons for the substituted decision. The appeal should be allowed [9] To explain this court’s conclusion on the appeal, it is necessary to provide some background on the function of the Land Court on an appeal against a land valuation, and the differences between the experts in their approach to their valuations. [10] An appeal against the valuation of land under the Land Valuation Act 2010 has been described as a “two-step” process.5 The first step is establishing the issued valuation is in error. For this step, the appellant bears the onus of proof on its grounds of appeal, on a consideration of all the evidence.6 2 T 1–41, lines 18 to 42. 3 Ground 6 was not pursued by the appellant. 4 LVA ss 170(b), 172. 5 Valuer-General v Body Corporate for ‘Tennyson Reach’ [2018] QLAC 7. 6 LVA s 169(3). -- 4 of 30 -- 5 [11] If error is established or, as in this case, conceded, the Court moves to the second step, which is to decide the correct value of the land. As his Honour noted,7 the hearing below commenced with the second step, because the Valuer-General conceded the appeal should be allowed. [12] The learned Member was presented with competing expert opinions as to value. The parties were equal contestants, in the sense that it was for each of them to persuade the Court that their contention as to value was correct. Eumundi no longer bore any onus on the appeal. [13] The valuation exercise for this land was not straightforward. [14] The land is located on the intersection of two busy roads, with good access. The topography of the land is not ideal. At points it lies well below its street frontages. There were no sales for the current use of the land that could be used for a comparable sales analysis. [15] Mr Ladewig and Mr Bale agreed the land should be valued using the direct comparison method of valuation, the principal method for determining market value.8 This requires the valuer to identify relatively contemporaneous sales of comparable properties to provide a yardstick for valuing the subject land.9 [16] The lack of comparable sales for the existing use presented a challenge to the valuers. However, land is usually valued in accordance with its highest and best use, which may not be its current use.10 The first job of the valuer is to identify the highest and best use.11 This will inform their choice of comparable sales. [17] In a zone allowing commercial uses, as the zone for this land does, the identification of the highest and best use can be complex. The range of permitted uses may be broad. Identifying the highest and best use may involve identifying both the nature and the intensity of the use.12 7 Eumundi Group Hotels Pty Ltd v Valuer-General [2020] QLC 37 at [14]. 8 Joint Expert Report of Mr Derek Bale and Mr Coen Ladewig dated 20 June 2019 (JER), pp 54-55, 57-59. 9 Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111. 10 Kelly v Western Australian Planning Commission [2006] WASC 208 at [36]. 11 Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1998) 65 LGRA 410 at 415. 12 Ibid. -- 5 of 30 -- 6 [18] That complexity might explain the valuers’ apparent agreement on the highest and best use which, as the learned Member observed, concealed more than it revealed.13 [19] In their joint expert report the valuers said the highest and best use is a commercial/retail use in line with the current use, however not to be limited in scale density, and/or design.14 Their choice and analysis of comparable sales shows they interpreted that highest and best use very differently. [20] The valuers had only one sale in common, vacant land at 1 Marina Quays Blvd, Hope Island. It had the same zoning as the subject land, and was purchased for a neighbourhood shopping centre, service station, fast food, convenience retail, and office, all code assessable uses on the subject land. The valuers differed on how the sale should be analysed, but agreed the sale was comparable. [21] The valuers agreed the site topography lent itself to a hypothetical development with a suspended slab construction at near street level. This would increase the exposure and potential density of the site.15 [22] That was critical to Mr Ladewig’s approach. [23] In deciding value, he hypothesised a larger scale commercial/retail use of the land than its current use. He identified three scenarios and chose one as his preferred hypothesis for development. He identified sales of vacant land, with similar zoning, and purchased for shopping centres or supermarkets, including the Hope Island sale. To account for the differential site improvements on the sale sites and the subject land, he had to make some adjustments. [24] First, he analysed the sales on a site-improved basis. That is, he increased the value from the sale price to allow for the additional value assuming the sites were ready for development for the intended use. Then, assuming the subject land was ready for development for an equivalent or similar use, he assigned a value, from which he deducted the cost of the additional site improvements required to make the subject land ready for that use. He relied on the evidence led by the parties’ quantity surveyors as to the cost of doing so. 13 Eumundi Group Hotels Pty Ltd v Valuer-General [2020] QLC 37 at [16]. 14 JER [100]. 15 Appeal Record Book (ARB) 79 of 86. -- 6 of 30 -- 7 [25] The Valuer-General made several criticisms of Mr Ladewig’s analysis: he used a hypothesised development without demonstrating its feasibility; his method required too many adjustments; he relied on dated sales evidence, he relied on quantity surveying evidence which, albeit on the parties’ joint instructions, made a material (but unproved) assumption about the subject land. [26] Although Mr Bale accepted the subject land lent itself to Mr Ladewig’s hypothesised development, he did not select his sales on that basis. He interpreted the highest and best use as a commercial/retail use in line with the current use. During the hearing, he firmed up on the highest and best use being the existing use for a tavern.16 [27] For his comparable sales analysis, because there were no sales for the current use, Mr Bale chose sales of land proximate in time and location to the land. They had a variety of mixed development and residential uses. He made no explicit adjustments to the sales evidence to account for those differences in arriving at the value of the subject land. [28] Eumundi criticised Mr Bale’s analysis for: relying on sales of mostly improved land; relying on sales of land in different zones; comparing sales intended for varying and different uses to the subject land; failing to make any, or failing to expose his reasoning for making, adjustments for the differential site improvements of the sales when compared to the subject land. [29] When it came to the common sale, there was a further dispute about how to analyse the sale given the differing evidence from the purchaser and the quantity surveyor about the cost of site improvements to ready it for its intended use. [30] In summary, senior counsel for Eumundi submitted the learned Member erred in deciding to reject Mr Ladewig’s evidence, and, having done so, asked the wrong question. Instead of deciding the correct value on an assessment of all the evidence, considering the arguments raised about both valuers’ opinion, he looked only to Mr Bale’s evidence. He said the learned Member scrutinised Mr Ladewig’s evidence but did not undertake the same exercise for Mr Bale’s. As a result, he failed to consider important evidence about both opinions. 16 T 1–94, lines 5 to 33. -- 7 of 30 -- 8 [31] Although his Honour stated his function was to find the correct value ‘by preferring the opinion of one of the valuers over the other,’17 courts do not have to accept the valuations of the valuers called by either party and may, and frequently do, arrive at a figure that constitutes a modification of the figures presented by one or more valuers.18 [32] As Wells J observed in Brewarrana Pty Ltd v Commissioner of Highways (No 2):19 “The judicial task is to see the combined results of the valuers’ work not as another valuer would see them, but as material fit to be used in the course of applying the principle laid down in Spencer’s Case (1907) 5 CLR 418; the two roles of buyer and seller must in my opinion, finally merge in the Court. I must bear in mind the conclusions of the valuers, and try to accord to each the sort of bearing and weight that would be accorded to them in the notional transactions of sale and purchase propounded by Spencer’s Case.” [33] His Honour’s task, then, was to decide the correct value on a proper consideration of all the evidence as to value. [34] Eumundi was entitled to expect the Court would give the same scrutiny to Mr Bale’s evidence as it gave to Mr Ladewig’s before deciding the correct value of the land. That expectation could only be reinforced by the Valuer General’s change in position about the land’s value. As already noted, the Valuer-General confirmed the issued valuation after objection. In the objections’ decision, the Valuer-General said that, when compared to similar properties, and the sale prices for those properties, no change was required in the issued valuation.20 That is, it confirmed the valuation on a comparable sales analysis. Yet on appeal, also relying on a comparable sales analysis, the Valuer General contended for a value nearly 20% higher than the issued valuation. [35] Although the Valuer General did not accept Eumundi’s argument that the learned Member did not apply the same scrutiny to Mr Bale’s evidence as he did to Mr Ladewig’s, it could not point to any passages in which his Honour addressed Eumundi’s criticisms of Mr Bale’s choice and analysis of comparable sales. [36] It is an error of law to fail to provide adequate reasons. [37] What is adequate depends on the circumstances of a case. In DL v The Queen,21 Chief Justice Kiefel and Justices Keane and Edelman said: 17 Eumundi Group Hotels Pty Ltd v Valuer-General [2020] QLC 37 at [15]. 18 Doherty v Commissioner of Highways (1974) 32 LGRA 328 at 339. 19 (1973) 6 SASR 541 at 578. 20 ARB Ex ACB 8, Decision on Objection 1191. 21 [2018] HCA 26 at [32]–[33]. -- 8 of 30 -- 9 “The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”… Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake a “minute explanation of every step in the reasoning process that leads to the judge’s conclusion.” At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular: "Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed." (citations omitted) [38] Having canvassed some of the criticisms made of Mr Ladewig’s opinion, the learned Member reached this conclusion: [63] Mr Ladewig’s opinion of the site value depends on a complex method and is fatally flawed by his criterion for choice of which scenario to apply. The Court could not, for the reasons which have been given, be satisfied that his approach could produce the correct site value. [64] It remains to consider the evidence of Mr Bale, the valuer called by the respondent. [39] In considering Mr Bale’s evidence, the learned Member identified the different interpretation by the valuers of the agreed highest and best use but did not clearly resolve it. The role and weight to be given to the highest and best use logically depends on its relationship to other relevant factors affecting value.22 Eumundi had squarely raised the comparability of Mr Bale’s sales, given the highest and best use, whether as stated in the joint expert report, or as Mr Bale fixed on it in his oral evidence. [40] His Honour said there was no reason to reject Mr Bale’s approach to identifying the highest and best use (that is the existing use), which he described as “an appropriate one, 22 ISPT Pty Ltd v City of Melbourne [2008] VSCA 180 at [46]. -- 9 of 30 -- 10 in accord with principle”23, but did not consider how it supported, or did not support, Mr Bale’s choice of sales. [41] Similarly, the learned Member found Mr Bale’s sales were comparable, but did not explain why.24 Eumundi mounted a substantial challenge to the comparability of Mr Bale’s sales which his Honour did not resolve. [42] Further, the learned Member did not address submissions Eumundi made about Mr Bale’s analysis of those sales. In particular, he did not address whether Mr Bale should have adjusted the sales to account for the differential site improvements to the subject land.25 [43] It is not necessary for a judicial officer to spell out every detail in their process of reasoning.26 However, Eumundi raised points of substance about Mr Bale’s valuation that the learned Member did not address. [44] Respectfully, this court finds the learned Member did not expose his reasons for resolving the challenges to Mr Bale’s valuation, which were critical to the contest between the parties. The rehearing [45] The principles that guide the Court in rehearing this matter are well settled and need not be recited. It is this Court’s task to find the correct value on the evidence led at the original hearing. As the learned Member excluded some evidence led from the quantity surveyors, something that was in dispute on appeal, this Court should resolve whether it will consider that evidence on the rehearing. The evidence for the rehearing [46] The parties filed three reports by quantity surveyors. Two were prepared by a quantity surveyor engaged by the Valuer-General. He costed the site works in existence on the sales properties. Although the parties disagreed about the use of his costing of site works for the common sale of Hope Island, his quantification of costs was not in contest. 23 Eumundi Group Hotels Pty Ltd v Valuer-General [2020] QLC 37 [74]. 24 Ibid at [89]. 25 ARB, Written submissions to the Land Court by Eumundi Group Hotels Pty Ltd at [35(b)]. 26 Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 171, 182. -- 10 of 30 -- 11 [47] The third was a joint report of two other quantity surveyors engaged by the parties to estimate the cost of site works on the subject land to ready it for a hypothetical development under three scenarios. The quantity surveyors largely agreed on the costings and, subject to some revisions by the valuers, the estimates were not in contest. [48] The Valuer-General did, however, question the utility of the estimates in valuing the subject land because the scenarios were hypothetical and relied on numerous assumptions. That is, the concern was that the objective evidence relied on in Mr Ladewig’s valuation had its foundation in some important assumptions. [49] Those assumptions included that there would be no need to excavate rock on site and that all excavated material could be used in filling the site. The quantity surveyors agreed their estimates would not be accurate if that assumption was not correct.27 [50] At trial, the Valuer-General did not ask his Honour to exclude the evidence of the quantity surveyors but said this underscored Mr Bale’s concern about the hypothetical nature of Mr Ladewig’s method. The learned Member effectively excluded the evidence of the quantity surveyors because that assumption had not been proved. On appeal to this Court, the Valuer-General said it was open for his Honour to exclude the evidence, and there was no error in his Honour having done so. What is not clear, is whether the Valuer-General’s position on rehearing is that this Court should pay no regard to that evidence. [51] In any case, this Court takes a different view for the following reasons. [52] The experts were asked to make several assumptions, not all of them proved by the evidence. It stands to reason that the costs of the site works would be greater if the assumption about soil conditions was incorrect. That would benefit Eumundi, not the Valuer-General. On Mr Ladewig’s method, higher site works costs would serve to drive down the value of the subject land, the very thing Eumundi sought to achieve by its appeal.28 [53] The Valuer-General was an active participant in the briefing process and did not reserve its position to argue any of the assumptions were incorrect. It did not raise any question about the matter until the trial was underway. Its conduct was consistent with those 27 ARB Notice of Appeal to the Land Appeal Court (LAC006-20) p 1360. 28 T 1–41, lines 40 to 46. -- 11 of 30 -- 12 assumptions being agreed between the parties for the purpose of the costings. The Court would expect notice to be given of its position on an important matter, particularly by a statutory authority whose decision is under review. [54] The Valuer-General did not lead a positive case on the point. It did not assert that there was rock on site. It led no evidence to show there was. It did not ask his Honour to exclude the evidence at trial and it did not expressly argue he should have done so on appeal. [55] The Court is not bound by the rules of evidence and may inform itself in the way it considers appropriate.29 [56] The process of valuing an improved site in its site improved state is an artificial one, necessarily involving some hypotheses. It would not be consistent with equity, good conscience, and the substantial merits of the case30 to exclude the quantity surveyors’ evidence because an apparently uncontested assumption, on which the parties jointly briefed the experts, was not proved. The valuations [57] Mr Bale valued the site “As Is” at $4,500,000, using a starting rate of $600/m2, resulting in a value of $503/m2 GSA. [58] Mr Ladewig valued the site at $3,000,000 based on a rate of $400/m2 less the cost of site works on a hypothetical development scenario, equating to $335/m2 GSA. Although Mr Bale did provide another valuation (at $6,575,000) which was in response to Mr Ladewig’s hypothetical development, the Valuer-General did not contend that is correct and it is not necessary to consider it further. [59] This was always going to be a difficult exercise. There was a paucity of sales evidence of vacant land for the current use of the land. There was also limited evidence for the more intensive retail/commercial use, which Mr Ladewig considered the land’s highest and best use. Both valuers said they undertook a “like for like” comparison with the sales evidence but differed in two ways.31 29 Land Court Act 2000 s 7(a). 30 Ibid s 7(b). 31 JER [239]–[243]. -- 12 of 30 -- 13 [60] First, the valuers selected different sales, except for one common sale of land at Hope Island. [61] Mr Bale chose sales of improved land that occurred close to the date of valuation of partially sloping land proximate to the subject land. Mr Ladewig chose sales that are not as proximate in time or place, but which were purchased as vacant land with an intended use like the hypothetical development he conceived for the subject land. [62] They had one common sale, of land at Hope Island, about 12 km away, that was sold as vacant land for a similar intended use, within 6 months of the valuation date. [63] Second, the valuers analysed their sales evidence differently, particularly with respect to site works. [64] Mr Bale considered the sales evidence ‘as purchased’ site improved at their respective dates of sales (also referred to by the valuers as a ‘raw’ sales analysis). He made no adjustment to the sales evidence to account for site works necessary for the purchaser’s intended use, because it would be reflected in the sale price. He made no adjustment to the value of the subject land, because he valued it on the basis that its current use is its highest and best use. [65] Mr Ladewig used a hypothetical development scenario in valuing the site, because he considered its highest and best use was a similar but more intensive form of development than its current use. He adjusted the sales to account for the site works for the intended use. He considered that was necessary to allow a like for like comparison across the sites. [66] Then, in valuing the subject land, Mr Ladewig arrived at a figure based on the adjusted sales, before deducting the cost of site works required to bring the subject land to a notionally site improved state ready for the hypothetical development. [67] There are other, more minor differences between the valuers. To the extent they bear on the Court’s decision on value, they will be considered when addressing the two key issues of the selection of comparable sales and their analyses of those sales. -- 13 of 30 -- 14 The selection of comparable sales Mr Ladewig’s sales [68] The sales evidence chosen by Mr Ladewig supports a higher density retail/commercial use. Mr Ladewig chose sales of land at Benowa, Pacific Pines and Hope Island which the purchasers intended to develop as shopping centres. [69] Mr Bale raised three criticisms of Mr Ladewig’s choice of sales. [70] First, except for the common sale of Hope Island, the sales are dated and Mr Bale asserts there would have been market movement, making those sales unreliable. That issue is discussed at [75] – [90] below. [71] Second, Mr Bale says the sales are exclusively for supermarket/neighbourhood shopping centres but there is no feasibility analysis for use of the subject land for that purpose.32 Mr Bale contested that a neighbourhood shopping centre could be developed on the subject land. Mr Ladewig did not assert that it could. However, he conceived of a higher density mix of retail uses than the current use for the land. [72] The intended use on Mr Ladewig’s comparable sales is code assessable on the subject land and, therefore, legally possible. A higher density retail/commercial development is consistent with the highest and best use agreed in the Joint Expert Report. Mr Bale evidently does accept a sale of land intended for a neighbourhood shopping centre is relevant in valuing the subject land, because the common sale, Hope Island, is in that category.33 Mr Ladewig’s sales should not be rejected because of the intended use when sold. [73] Third, Mr Bale says the sales are unusable for any retail/commercial uses in their ‘as purchased’ state, given their predominantly flood prone, or sloping nature.34 However, Mr Ladewig did not choose them to analyse them in their ‘as purchased’ state. He chose them because of their intended use. His analysis of the sales evidence and his valuation account for the cost of site works to ready the site for the intended use (in the case of the sales evidence) and the hypothetical development (in the case of the subject land). In any case, the common sale of Hope Island remains predominantly flood prone after 32 JER [247]. 33 JER [106]. 34 JER [250]. -- 14 of 30 -- 15 development35 yet Mr Bale accepts it is a comparable sale. Mr Ladewig’s sales should not be rejected because of any difficulties with the contour of the land or flooding. Market movement [74] The point of distinction between the common sale and Mr Ladewig’s other sales is the possibility of market movement rendering the sales unreliable as evidence of market value. [75] The valuation date is 1 October 2017. The sale of 406 Ashmore Road, Benowa occurred on 19 December 2012, and 2 Norris Street, Pacific Pines was sold on 29 November 2013. [76] Mr Bale said there would have been market movement between the sales and the valuation date, although he considered there would be nominal if any adjustment for market movement of his sales, which occurred within 6 to 16 months of the valuation date.36 Presumably, then, his concern was about market movement between 2012/2013, when Mr Ladewig’s sales occurred, and October 2016, when the earliest of Mr Bale’s sales took place. [77] Mr Ladewig did not agree there had been market movement that would call for adjustment (or rejection) of any of his sales. [78] There was limited evidence on the point. [79] Neither valuer used paired sales (that is a sale and re-sale) to support their view. [80] Mr Ladewig drew on the Valuer-General’s statutory valuations of the sale properties to support his view. For Benowa, the valuation did not increase until 1 October 2016, which he related to the completion of site works post sale.37 Mr Bale did not appear to dispute that, although he observed a further increase by 10% in 2017.38 For Pacific Pines, there was no change in the site value applied between the valuations in 2013 and 2016.39 Mr Ladewig agreed there had been increases in 2017 for those properties. He did not place much emphasis on the applied site values in determining the value of the subject land.40 35 JER [253]. 36 JER [119]. 37 JER [578]. 38 JER [579]. 39 JER [652]. 40 T 3–47, lines 10 to 23. -- 15 of 30 -- 16 [81] Although Mr Bale said the analysed rate would have to be adjusted to account for market movement, he did not explain how he would do that.41 [82] The valuers agreed the Hope Island sale could be looked to for evidence of market movement. Each considered their analysis of that sale supported their opinion.42 Mr Bale said the sale supported his view that there had been market movement, but only if the Court accepted his, not Mr Ladewig’s analysis of that sale.43 [83] For reasons given at [58] – [68], the Court has not accepted Mr Bale’s analysis of the sale. [84] Otherwise, Mr Bale relied on his sales to assert an increase in the market for the subject land of some 10% to 30% since 2016.44 That evidence seems at odds with his view that his use of those sales required “nominal, if any adjustment for market movement.”45 [85] Mr Bale also inferred market movement generally from falling interest rates resulting in lower capitalisation rates, leading to higher capital values.46 However, no evidence was led about that.47 [86] Mr Bale’s sales are of land used for a different purpose and, for some, in different zones. Although he was somewhat reluctant to concede the point, by the end of cross- examination he appeared to accept there could be distinct markets for land intended for different uses. He accepted the industrial market is distinct from the commercial/retail market, except for location; that the industrial market broadly relies on income bases and are traded as investment properties;48 and that residential, retail/commercial, and industrial land did not necessarily move together consistently in a market.49 The Court accepts Mr Ladewig’s evidence that, within the general market, the residential, retail/commercial, and industrial segments may operate distinctly and not act or move together.50 41 JER [685]. 42 JER [114] 43 T 3–32, lines 7 to 30. 44 JER [125]. 45 JER [119]. 46 JER [117], [122]-[123]. 47 T 2–90, line 22, to T 2–92, line 44. 48 T 2–83, lines 31 to 37. 49 T 2–85, lines 1 to 8. 50 T 2–88, lines 1 to 6. -- 16 of 30 -- 17 [87] At the hearing before the Land Court, counsel for the Valuer General described the question of market movement as a secondary issue.51 That fits with the response of the parties to the valuers’ request to introduce further sales evidence during the Court Managed Expert Evidence process. The reason for their request was to address their disagreement about market movement. The parties jointly directed the valuers to confine their consideration to the sales already identified.52 [88] This may well have hampered Mr Bale, because he could not introduce further sales to support his opinion.53 Equally, it prevented Mr Ladewig from doing so.54 That was a forensic choice made by the parties during pre-hearing preparation, and neither sought leave during the hearing to lead further evidence on the point. [89] The limited evidence about market movement does not justify disregarding the sales of Pacific Pines and Benowa, which would otherwise be relevant for the comparable sales analysis. Mr Bales’ sales [90] Mr Bale chose his sales for their features and proximity to the subject land. All his sales are within 1 km, except for Hope Island, which is 12 kms from the subject land. The issue with his choice of sales is their different uses and zoning, except for Hope Island. [91] Three of his sales are zoned differently to the subject land. The Land Appeal Court has warned of the effect of different zonings on values. In Intertherm Pty Ltd v The Crown,55 it observed: It is a primary rule of valuation that like should be compared with like and this applies in so far as all relevant factors, including zoning, are concerned. This rule was recognised by this court in Amoco Australia Pty Ltd v The Crown (1977) 4 QLCR 141. At 156 of the judgment it was stated ‘It is difficult to compare land situated in different zones. It is desirable to avoid such comparison if possible.’56 51 Transcript Land Court hearing, T 1–29, lines 23 to 33. 52 T 3–3, lines 1 to 4. 53 T 2–92, line 10. 54 T 3–3, line 35. 55 (1978) 5 QLCR 21. 56 Ibid at 25. -- 17 of 30 -- 18 [92] Further, the uses or intended uses of those sales are different to the current use of the subject and the hypothesised more intensive retail/commercial development proposed by Mr Ladewig. [93] 285 Southport-Nerang Rd, Southport was a small, improved lot purchased for a proposed car-sale (retail/commercial) and servicing (industrial) use, without development approval. It was zoned industrial. Mr Bale agreed it was sold at a mixed commercial/industrial rate. The purchaser did not apply a differential rate by use as the two areas were fairly evenly split.57 Counsel for the appellant argued that the improvements to be retained pertained to the industrial use. In Mr Bale’s analysis of the sale, this skewed the rate from an arguably comparable retail/commercial use (the car- sale) to the industrial use (car servicing). There is also some basis for differentiating between a car-retail showroom market and the general retail/commercial market, particularly where, as here, the land is in an established car sales precinct.58 [94] 383 Southport-Nerang Rd, Molendinar is a similar sized improved lot purchased for a mixed-use development, with retail/commercial uses fronting Southport-Nerang Rd (service station, drive-thru fast food and drink outlet) and an industrial use fronting Industrial Avenue (4-storey self-storage facility). The land was zoned industrial, located in an established industrial precinct, with a mixed commercial/industrial rate. There is some distinction to be drawn between a service station use and other retail/commercial uses. The differences between the uses proposed for this land and the highest and best use for the subject land make comparison difficult. [95] 74-76 Hillview Pde, Ashmore is another smaller and improved multi-lot parcel of land purchased for a multi-unit residential town house development,59 a different use in a distinct market to the subject land. [96] Mr Bale considered various site attributes, combined with the zoning of the subject land, lent itself to a wide variety of retail and commercial utilities, including residential multi- unit, industrial, recreation, tourism and entertainment.60 57 T 3–176, lines 26 to 43. 58 JER [837]. 59 JER [203]. 60 JER [101]. -- 18 of 30 -- 19 [97] It seems that Mr Bale looked at market sales evidence for a range of uses, because a site’s highest and best use requires consideration of alternative competing uses for the land.61 But that conflates selecting sales evidence with identifying the highest and best use. As noted at [16] the first task for the valuer is to identify the highest and best use, so as to inform their choice of comparable sales. [98] A valuer may well articulate the highest and best use in general terms, without specifying a single precise use.62 That is not what the parties’ valuers did in this case. Although it is broad, it is not without some precision. [99] They agreed the highest and best use is a commercial/retail use in line with the current use, however not to be limited in scale density, and/or design. While a “commercial/retail” use admits of a range of activities, the agreement qualifies that by reference to the use being “in line with the current use.” [100] Accepting Mr Bale’s sales involve, at least in part, commercial/retail uses, they could not be said to be ‘in line with’ the current use. The fact that they may be legally possible, with impact assessment, is not to the point. [101] Further, as counsel for Eumundi submitted at trial, the “raw” sales analysis that Mr Bale used does not account for the differences in the nature and costs of site works required for the different uses.63 Nor did Mr Bale explain how he has accounted for differences in uses and zonings between his sales and the highest and best use of the subject land. [102] The comparable sales method necessarily involves subjective judgments. Valuation is rarely a precise exercise. However, a valuer must reveal their process of reasoning to enable the Court to evaluate their evidence and conclusions.64 The greater the differences, the greater the reliance on evaluative judgment and the less confidence the Court can have in inferences drawn from the analysis.65 [103] The challenges in comparing land with different uses and zonings, and Mr Bale’s failure to explain how he has accounted for them, supports Eumundi’s argument that Mr Bale’s sales evidence is unreliable in valuing the subject land. 61 JER [107]. 62 ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180 at [9]. 63 Appellant’s written submissions at trial, 7 September 2020. 64 Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 at [72]. 65 Macarthur Central Shopping Centre Pty Ltd as TTE v Valuer General (No.2) [2016] QLC 80 at [11]. -- 19 of 30 -- 20 [104] Further, Mr Ladewig’s sales better reflect the highest and best use agreed in the JER. The sales of Hope Island, Benowa and Pacific Pines were sales of vacant land purchased for retail/commercial uses that are code assessable on the subject land and are in line with, although a greater scale and intensity to, the existing use. They are also consistent with one or more of the hypothetical development scenarios for the subject land. [105] As counsel for the Valuer-General confirmed in submissions at trial, Mr Bale accepted the sales of Benowa and Hope Island were of comparable retail utility to the subject land. Although Mr Bale has raised a legitimate concern about dated sales, the evidence does not justify excluding them because of market movement. [106] For those reasons, the Court prefers Mr Ladewig’s sales to Mr Bale’s. The analysis of the sales evidence [107] Mr Bale used an “As Is” approach and valued the subject land on its current site improved state, on the basis that it is fit for its current use. He considered the sales evidence ‘as purchased’ site improved at their respective dates of sales (also referred to by the valuers as a ‘raw’ sales analysis). Mr Bale preferred this approach because it required the least number of adjustments, the purchase price already reflecting the purchaser’s anticipation of the costs of necessary site works for the intended use.66 [108] Mr Ladewig valued the subject land by reference to his sales evidence, assuming both were brought to a similar notionally vacant site-improved state to allow the intended use (in the case of the sales) and the hypothetical development (in the case of the subject land). Although it required adjustments for site works on both the subject land and the sales, except for the treatment of the cost of site works on Hope Island, the costs were derived from reports by quantity surveyors and was largely uncontested. [109] There are two key differences in the valuers’ approaches. [110] First, they differ about whether a hypothetical development should be used in valuing the subject land. [111] Second, if a hypothetical development is used, they do not agree on which scenario should be used. 66 JER [262]. -- 20 of 30 -- 21 Should a hypothetical development be used in valuing the subject land [112] The land is in the Centre Zone under the City of the Gold Coast City Plan 2016 which allows for a mix of commercial and retail uses. It is in an established commercial/retail precinct of Ashmore opposite the Ashmore Plaza district shopping centre. [113] The current improvements on the land are a Tavern and associated drive-thru bottle shop and office, a standalone liquor barn and parking. The valuers agreed the highest and best use is a commercial/retail use “in line with the current use, however not to be limited in scale, density and/or design.”67 [114] That refinement of the current use contemplates a larger format commercial/retail use and is consistent with the valuers’ agreement that the land could support a higher density of development: the site topography lent itself to a hypothetical development with suspended slab construction at near street level, comparatively reducing site works, enhancing main road exposure, and increasing the potential development density with under-croft parking.68 [115] Mr Bale was cautious about valuing the subject land by reference to a hypothetical development because there had been no evaluation of the engineering design or the likelihood of Council approval.69 [116] In valuing the land, the Court must consider how a hypothetical purchaser would view the potential for more intensive development of the site.70 The Court does not decide the planning outcome, but must assess the level of uncertainty about the possible outcome and the likely impact of that uncertainty on the mind of the hypothetical prudent purchaser.71 The Valuer-General did not articulate a basis for concern about engineering design or planning approval and there was no evidence of material uncertainty about those matters. The Court should be slow to exclude a rational mode of valuing land.72 [117] Three aspects of Mr Bale’s evidence support using Mr Ladewig’s approach of adjusting for site works by reference to a hypothesised development. 67 JER [100]. 68 JER [32]. 69 JER [377]. 70 De Ieso v Commissioner of Highways (SA) (1981) 27 SASR 248 at 252. 71 Gold Coast City Council v Dobson [2014] QLAC 6 at [92]. 72 Commonwealth Custodial Services v Valuer-General [2007] NSWCA 365 at 189 (cited with approval by Keane JA in Chief Executive, Department of Natural Resources and Mines v Kent Street Pty Ltd [2009] QCA 399 at [15]). -- 21 of 30 -- 22 [118] First, Mr Bale’s raw sales analysis either makes no adjustments for site works or has not exposed his reasoning about how he would account for differences in the site works that would be contemplated for the different types of uses on the sales and on the subject land. This prevents the Court from testing Mr Bale’s comparable sales analysis. [119] Second, his agreement to a highest and best use not constrained by the current scale, density, or design for the existing use, leaves open the possibility, and therefore relevance, of a more intensive use in valuing the subject land. Although Mr Bale did not think a neighbourhood shopping centre could be established on the subject land, Mr Ladewig did not assert that it could. He considered the highest and best use involved some element of a grocery convenience store with a mix of other retail uses. The important factor for Mr Ladewig was that there would be a more intensive commercial/retail development than the current use. [120] Third, Mr Bale noted a hypothesised development using scenario 2 is consistent with surrounding developments. This suggests his caution about whether such a development would be approved may not be well founded. It also supports Mr Ladewig’s view of the site’s highest and best use. Which scenario should be used in valuing the subject land [121] In addressing Mr Ladewig’s method, the quantity surveyors were asked to estimate the cost of site works on the sales and subject land using three scenarios, only 2 of which were considered relevant by the valuers. [122] Mr Ladewig favoured scenario 3, which involved a part suspended slab at street level. If the land was to be valued assuming its potential for more intensive development, Mr Bale favoured scenario 2, which brought the whole site to a single level on a suspended slab a few metres below road frontages. [123] Mr Bale’s reasoning about which scenario to use is more persuasive than Mr Ladewig’s. [124] Mr Ladewig identified cost as important, albeit not the sole factor in choosing scenario 3.73 Ultimately, he saw little difference between scenarios 2 and 3 when compared with the sales evidence, although the sales were a mix of suspended slab, slab on ground and 73 T 1–88, lines 17 to 20; T 2–64, lines 20 to 25. -- 22 of 30 -- 23 slab over a general single level. Given his view there was little difference between scenarios 2 and 3, he preferred 3 because it cost less. [125] However, in valuing the subject land, the difference in cost was nominal. In that context, the focus on cost distracted Mr Ladewig from considering which scenario would optimise the productive use of the land. [126] Scenario 2 would allow almost complete development of the site.74 Mr Bale considered its design, level, and scale of development was supported by surrounding developments, and by sales evidence in the vicinity, and in the Gold Coast fringe locations.75 He accepted if the site were developed to its optimal density, that would potentially offset and exceed the costs of the site works.76 Scenario 2 would achieve a significantly greater density of development, potentially as much as 50% compared with 40%. It would offer some benefit over and above the existing development and would utilise the current site development works.77 It could also offer a better parking outcome, with parking on slab for the retail facility and parking undercroft. He considered this approach was evidenced in the vicinity by sales such as Pacific Pines and 285 Southport-Nerang Rd.78 [127] Although Mr Ladewig thought scenario 3 better reflected the developments on 2 of his 3 sales (Pacific Pines and Hope Island), from a site works perspective, there was conflicting expert evidence on the point.79 Although the quantity surveyors agreed Pacific Pines was closest to scenario 3,80 they agreed Benowa was closest to scenario 2,81 and they disagreed about whether Hope Island more closely aligned with scenario 2 or 3.82 [128] In any case, given adjustments are made for the site works on both the sales and the subject to allow a like for like comparison, the scenario should reflect the potential of the subject land. [129] Mr Bale’s evidence that scenario 2 would optimise development density makes sense. 74 JER [440]. 75 JER [213]. 76 JER [258]. 77 T 1–88, lines 30 to 47. 78 T 1–89, lines 17 to 25 79 JER [162]–[163]. 80 T 1–43, line 42, to T 1–44, line 22. 81 T 1–42, lines 37 to 46. 82 T 1–43, lines 1 to 40. -- 23 of 30 -- 24 [130] The Court’s function is to determine the hypothetical point of agreement between the hypothetical vendor and hypothetical purchaser at the date of valuation. The hypothetical prudent purchaser can be expected to value the land at its most profitable potential use. The Court accepts Mr Bale’s reasons for preferring scenario 2. The analysis of the Hope Island sale [131] The valuers agreed the sale of Hope Island was a good comparator. It has the same zoning as the subject land. It was sold vacant and unimproved with the benefit of an impact assessable development approval for a retail use (DA), infrastructure credits and agreements for lease to Woolworths and Aldi (AFLs). [132] Mr Ladewig chose this sale because it has a comparable use with good access and exposure to a high volume of traffic. It is within an established residential precinct with strong catchment, good growth, and limited local competition. Its site area is 24,810m2 and he analysed it at $347/m2.83 [133] Mr Bale considered this sale was overall inferior on a pro rata “as purchased” rate. He accepted it had similar zoning and retail/commercial utility, being a code assessable use on the subject land. He noted it had superior frontage and situation to a traffic signalled intersection and road. He considered the fringe Gold Coast locality is inferior and its site access, exposure and flood prone topography are inferior to the subject land. He analysed this sale differently to Mr Ladewig, arriving at $504/m2.84 [134] Given its location, use and the limited planning risk, it provides a comparable to the subject land. The difference in the valuers’ analysed rates is largely explained by their contrasting approaches to deductions for the benefit of the AFL and DA and additions for site works to prepare the site for development. [135] There is a significant difference in the deductions applied by the valuers in adjusting this sale. Relying on information from the purchaser, Mr Ladewig deducted $2,500,000 because of the benefits that he said the AFLs brought to the property.85 Mr Bale made no allowance for that factor. Mr Ladewig allowed $350,000 for the negated ‘hard costs’ for the DA. Mr Bale allowed $200,000. 86 83 JER [189]. 84 JER [198], [205]–[206]. 85 JER [338]. 86 JER [338]. -- 24 of 30 -- 25 [136] The valuers were faced with apparently contradictory evidence about the purchaser’s views on the AFLs. [137] Interview notes taken by a valuer with the State Valuation Service, who was not a witness in this case, were made between 2 to 6 months after the sale.87 Those notes record that a director of the purchaser attributed no particular value to the AFLs. 88 There is no evidence the notes were provided to the director or that he confirmed their accuracy. [138] Prior to the trial, the same director gave very specific responses by email to enquiries by Mr Ladewig, another valuer, Mr Elliott, and Mr Bale.89 [139] His responses included statements to the following effect: (a) The purchase took place with a DA and AFLs in place; (b) The purchase would not have proceeded without the DA and pre- commitments; (c) If it had proceeded, the purchase price would have been discounted by $300,000 to $400,000 for the DA and $2-3 million for the major tenant AFLs.90 [140] The Court is not bound by the rules of evidence and may inform itself in the way it considers appropriate.91 It must act on the best evidence before the Court. There is no objective evidence of the actual value of the AFLs and the DA in determining the sale price. These were matters of subjective assessment by the purchaser. [141] The email exchanges reveal the director was aware of the purpose for the enquiries and the use to which the information would be put. His emails were responsive and unequivocal. Had the Valuer-General wished to contest their accuracy or veracity, the director could have been called to give evidence. [142] In the circumstances, the Court prefers Mr Ladewig’s deductions for the AFLs and the DA as they are based on the best evidence before the Court. [143] That does not mean the Court accepts that Mr Ladewig’s analysis of this sale without qualification. 87 Ex 7 pp 127–129. 88 Notes of telephone call with representative of purchaser on 18 August 2017, ARB p 988; JER [493]. 89 Email from representative of purchaser on 29 August 2019, ARB p 1257. 90 JER pp 130–138. 91 LCA s 7(a). -- 25 of 30 -- 26 [144] Another significant difference between the valuers was the additions to the purchase price for site works. Mr Bale allowed $1,524,222 drawing on the costings of a quantity surveyor. Mr Ladewig used the purchaser’s estimate of $400,000. The difference of more than $1m indicates the purchaser was ill informed about the likely costs. [145] While the Court prefers Mr Ladewig’s analysis of this sale, his reliance on the purchaser’s information about the cost of site works should be treated with caution in arriving at the starting rate in valuing the subject land. [146] The Court must presume the hypothetical prudent purchaser of the subject land is properly advised. If a sale used to advise on value is affected by an unrealistic assessment of costs, that can skew the analysis of value on the subject land, in this case by fixing a starting rate that is too low. [147] Here, there is objective and uncontested evidence of the cost of the site works to ready the sale for development. It is reasonable for the Court to consider that evidence in the comparable sales analysis in deciding the value of the subject land. Valuing the subject land [148] In giving effect to the Court’s findings on those matters addressed above, the subject land should be valued on the following basis: 1. The most useful sales for a comparable sales analysis are Benowa, Pacific Pines, and Hope Island because of the similarity in uses and zones. They should not be ignored because of an assertion of market movement unsupported by evidence to that effect. 2. Mr Ladewig’s method of valuing the land according to a hypothesised development is preferable to Mr Bale’s “As is/as purchased” raw sales analysis. 3. Scenario 2 would deliver optimal development of the subject land with only a marginal increase in the cost of site works. 4. In analysing the common sale of Hope Island, the Court accepts the purchaser’s assessment of the added value of the AFLs and the DA should be deducted. -- 26 of 30 -- 27 5. In using the comparable sales to arrive at a $rate/m2 in valuing the subject land, Mr Ladewig’s analysis of Hope Island at $347/m2 is affected by the purchaser’s gross underestimation of the cost of site works and should be treated with some caution. [149] Mr Bale’s ‘response’ valuation of the subject land on a hypothesised development using Scenario 2 is $6,600,000, or $840/m2. That rate is anchored by his sale at 383 Southport Nerang Rd, Molendinar, which he analyses on the same basis at $839/m2. The next closest rate of Mr Bale’s sales analysed on Scenario 2 is 285 Nerang Rd, Southport, at $791/m2. The Court’s reasons for preferring Mr Ladewig’s choice of sales over Mr Bale’s are set out at [80] – [96]. The concerns about the comparability of land purchased for different uses, subject to different zoning provisions, is not remedied by Mr Bale’s ‘response’ analysis. It is not necessary to consider those sales further. [150] Considering Mr Ladewig’s 3 sales of Benowa, Pacific Pines and Hope Island, Mr Bale’s analyses indicate his rate of $840/m2 is too high. He analysed them at $470/m2, $461/m2, and $599/m2 respectively. [151] 406 Ashmore Rd, Benowa is only 1.6km from the subject land, Mr Ladewig’s closest sale. It has corner exposure, although it falls below the road in part. It has good access and exposure, low-moderate population growth and moderate-high level of competition. [152] It is a much larger site at 28,240 m2, almost 3.5 times the size of the subject land. Mr Bale questioned how Mr Ladewig adjusted for this factor. Mr Ladewig thought it a secondary consideration. He said there was a smaller buyer pool and market demand for larger blocks, because of the price point, and an increased risk in developing a larger site. [153] Given the site is so much larger than the subject land, all other things being equal, it would be expected that the rate/m2 for Benowa would be less than for the subject land.92 [154] The quantity surveyors agreed the actual site works on this site were closest to Scenario 2,93 which is the scenario on which the Court has decided the subject land should be assessed. 92 Maurici v Chief Commissioner of State Revenue [2005] NSWLEC 20. 93 T 1-42, lines 1 to 35. -- 27 of 30 -- 28 [155] Mr Ladewig analysed it at $380/m2, compared to Mr Bale’s rate of $473/m2, a variance of 20%.94 [156] Benowa has a larger percentage of unusable land post development and a lower density rate than the hypothesised development on the subject land. One reason is the requirement for a detention basin on Benowa when compared to the subject land. Mr Ladewig agreed that was a possible distinction which Mr Bale allowed for, which he did not.95 Mr Bale discounted the area required for a detention basis on that would remain flood affected after development. [157] Mr Bale also excluded an area required for batters on the site which could not be developed. The latter were in an area that the purchaser knew would likely be resumed by the Council, another reason to exclude it which Mr Ladewig acknowledged.96 [158] Having regard to that evidence, the Court prefers Mr Bale’s analysis of this sale, resulting in a rate of $473/m2. [159] With an area of 10,150 m2, 2 Norris St, Pacific Pines is marginally larger than the subject land. It is in the Local Business zone,97 and has good access and exposure.98 It is in an established catchment with moderate growth in the immediate vicinity and moderate competition.99 [160] The valuers’ analyses of this sale were similar, with a variance of only 7%100 between Mr Ladewig’s rate of $430/m2 and Mr Bale’s of $461/m2. The more important difference is how it relates to the subject land in the range of sales considered. Mr Ladewig considered the sale superior to the subject land, Mr Bale said it was inferior. [161] Mr Ladewig’s considered this sale superior on a $/m2 because, as a sale to Coles as an owner occupier, it was at the upper end of the market.101 Putting his opinion at its highest, 94 JER pp 50–52. 95 T 3–145, lines 8 to 39. 96 T 3–149, lines 1 to 42. 97 JER p 169. 98 JER p 170. 99 JER [190]. 100 JER pp 50–52. 101 JER [190]. -- 28 of 30 -- 29 that view is tentative, and contested.102 Mr Ladewig agreed he was inconsistent in his treatment of this factor when analysing Benowa, which was also purchased by Coles.103 [162] Mr Bale did not agree the sale to Coles put it at the upper end of the market. He thought Pacific Pines was inferior to the subject land with respect to the subject land’s exposure, particularly as hypothetically developed. He also relied on the lower volume of traffic for the sale, its more indirect access, and its surrounding amenity which has less of a retail/commercial concentration than the subject land. These features support Mr Bale’s assessment that the subject land is superior to this sale. [163] As for Hope Island, Mr Ladewig considered this sale a good comparator for the subject land, although somewhat inferior on a $/m2. That assessment, though, may be affected by his acceptance of the purchaser’s underestimate of the likely costs of the site works. [164] Mr Bale considered Hope Island comparable in terms of a broad retail utility. He identified several features of the sale that he considered inferior to the subject land. It is a larger block, is significantly flood-prone, has inferior exposure and less direct access. Again, these features support Mr Bale’s assessment of how the subject land relates to this sale. [165] The Court has explained why it will treat Mr Ladewig’s use of purchaser’s underestimate of the cost of site works with caution in valuing the subject land. If the quantity surveyor’s costing is used instead of the purchaser’s estimate, Mr Ladewig’s analysis would come out at $392/m2, very close to the rate he applied to the subject land ($400/m2). Looking at the same point a different way, if the Court uses Mr Bale’s analysis of Hope Island and deducts $2,500,000 for the AFLs and $350,000 for the DA, the rate/m2 is $437, a variance of about 10% from $392. The variance is explained by a different approach to on costs and holding costs; Mr Bale making an allowance for those items, while Mr Ladewig made none. [166] On appeal to this Court, counsel for both parties conceded the valuers were faced with a difficult exercise, with limited sales evidence to draw upon. The Court was faced with the same dilemma. 102 JER [347]–[351]. 103 T 3–192, lines 7 to 20. -- 29 of 30 -- 30 [167] This Court has not accepted Mr Bale’s choice of sales or his raw sales analysis. Although it has largely accepted Mr Ladewig’s approach, the Court has made allowances or adjustments, drawing upon Mr Bale’s response valuation and the quantity surveyors’ evidence. [168] The sales the Court accepts as useful in valuing the subject land range between $392/m2 (Hope Island as analysed by Mr Ladewig but using the quantity surveyor’s cost of site works) at the lowest and $473/m2 (Benowa as analysed by Mr Bale) at the highest. [169] The Court finds the $/m2 for the subject land should be at the upper end of the range for these reasons. It has accepted that the subject land is superior to each of the three sales for various reasons already given. Two of the three sales are dated and, while they are not excluded because of an increase in the market, there is no evidence that the market has decreased in that time. Finally, two of the three sales are significantly larger than the subject land, with Hope Island twice the size and Benowa 3.5 times larger. [170] The Court has determined the correct value of the subject land is $3,515,000. [171] That is calculated on the following basis: 1. $470/m2 is applied to the unencumbered area of 8,585m2, as identified by Mr Ladewig – $4,034,950. 2. 359m2, the area encumbered by easements, will be discounted as agreed by the valuers to 80% of the applied rate, at $376/m2 – $134,984. 3. From the sum of those figures, $4,169,934, will be deducted the quantity surveyors’ estimate of the cost of site works for scenario 2, $655,040 – $3,514,894 (rounded to $3,515,000). -- 30 of 30 --