Brisbane Square Pty Ltd v Valuer-General [2016] QLC 69 (2016) 37 QLCR 385

LAND COURT OF QUEENSLAND CITATION: Brisbane Square Pty Ltd v Valuer-General [2016] QLC 69 PARTIES: Brisbane Square Pty Ltd (appellant) v Valuer-General (respondent) FILE NO/s: LVA047-15 DIVISION: General Division PROCEEDING: Appeal against annual land valuation DELIVERED ON: 11 November 2016 DELIVERED AT: Brisbane HEARD ON: 15-18, 26 August 2016 HEARD AT: Brisbane PRESIDENT: FY Kingham ORDER/S: 1. The appeal is allowed. 2. The site value of Lot 12 on SP 192709 in the County of Stanley, Parish of North Brisbane, as at 1 October 2013 is determined at Fifty Million, Seven Hundred Thousand Dollars ($50,700,000). CATCHWORDS: REAL PROPERTY – VALUATION OF LAND – SITE VALUE – METHOD OF ASSESSING – HYPOTHETICAL SALE CONCEPT – Land Valuation Act 2010 (Qld) – where the parties did not agree about the information a hypothetical prudent purchaser could consider in assessing value – whether reference could be made to a development approval for the subject land – whether reference could be made to a lease over an area of the subject land REAL PROPERTY – VALUATION OF LAND – SITE VALUE - METHOD OF ASSESSING – HYPOTHETICAL SALE CONCEPT – Sustainable Planning Act 2009 (Qld) – where the appellant contended the hypothetical prudent purchaser’s assessment of value would be affected by planning risk – where the planning risk asserted was the possibility that up to 30% of the land would be required for -- 1 of 28 -- 2 public open space – whether there was a likelihood the planning authority would impose such a requirement – whether the planning instruments supported such a requirement – whether such a requirement would be enforceable REAL PROPERTY – VALUATION OF LAND – SITE VALUE – METHOD OF ASSESSING – COMPARABLE SALE – Where the parties agreed the sale of an adjacent block of land provided a comparable sale – where the parties agreed the Valuer-General’s post-sale statutory valuation of the comparable property should be the starting point for valuing the subject site – where the appellant proposed a methodology for adjusting the value of the subject site so as to account for planning risk – whether the appellant’s calculation of value should be accepted Land Valuation Act 2010, s 5(1), s 6, s 7(a), s 17, s 17(1), s 17(2), s 18(1), s 18(2), s 19(1), s 22(2) Sustainable Planning Act 2009, s 313(3)(b), s 313(5), s 317, s 345(1), s 495(2)(a) DNRM v Kent Street Pty Ltd [2009] QCA 399, cited Gold Coast City Council v Dobson (2014) 35 QLCR 279, cited Grahn v Valuer-General (1992-93) 14 QLCR 327, cited Kent Street Pty Ltd v Department of Natural Resources and Mines (2008) 29 QLCR 198, cited PT Limited & Westfield Management Limited v Department of Natural Resources and Mines (2007) 28 QLCR 267, cited Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610, cited Spencer v The Commonwealth [1907] 5 CLR 418, applied Stubberfield v Valuer-General [1991] 1 Qd R 278, applied Trust Co of Australia Ltd & Anor v Valuer-General (2008) SASC 169, cited Zappala Family Co Pty Ltd v Brisbane City Council [2014] 201 LGERA 82, cited APPEARANCES: RN Traves QC, with N Loos of Counsel – instructed by Clayton Utz, for the appellant SP Fynes-Clinton of Counsel – instructed by In-house Legal, Department of Natural Resources and Mines, for the respondent [1] At the top end of the Queen Street Mall, adjacent to the Treasury Casino, is a CBD block of land owned by Brisbane Square Pty Ltd. Queen, George and Adelaide Streets and North Quay provide its four street frontages. Across North Quay, Victoria Bridge connects the CBD to South Brisbane and the cultural, recreational and entertainment -- 2 of 28 -- 3 precinct of South Bank. Some 30% of the block is used as a civic plaza called Reddacliff Place. [2] On 1 October 2013, the Valuer-General determined the site value1 of the land (which I will refer to as Brisbane Square) at $58,900,000. The owner appealed to this Court, contending its site value is $45,000,000. [3] The valuation is an artificial exercise governed by the Land Valuation Act 2010 involving hypotheses about the land at the time of valuation. Where the land is improved, the site value is the capital sum that it might be expected to realise for its unencumbered estate under a bona fide sale.2 A bona fide sale is one on reasonable terms and conditions assuming willing, but not anxious, buyer and seller; a reasonable period within which to negotiate the sale; and reasonable exposure of the property to the market.3 In considering reasonable terms and conditions, regard must be had to the location and nature of the land and the state of the market for land of the same type.4 [4] Those provisions give statutory expression to the test propounded by the High Court in Spencer v The Commonwealth: that the value of land is what a hypothetical prudent purchaser would entertain in purchasing it for the most advantageous purpose for which it was adapted.5 That is synonymous with the market value of the land.6 [5] Fortuitously, a comparable sale for assessing the market value of Brisbane Square is provided by the sale of an adjacent CBD block to the west: 304 George St. It is of comparable size to Brisbane Square, has four street frontages and was formerly occupied by the Supreme and District Courts. It was sold for $63,000,000 in May 2013. [6] The parties disagreed about how the sale price for 304 George Street should be analysed. However Mr Hart, the valuer called by the Valuer-General, gave evidence the post-sale statutory valuation of 304 George Street at $61,500,000 was a reasonable assessment of its site value. Consequently, the Valuer-General conceded 1 Land Valuation Act 2010, ss 5(1) and 7(a). 2 Land Valuation Act 2010, ss 17(1) and 19(1). 3 Land Valuation Act 2010, s 18(1). 4 Land Valuation Act 2010, s 18(2). 5 Spencer v The Commonwealth [1907] 5 CLR 418. 6 Stubberfield v Valuer-General [1991] 1 Qd R 278 at 283-284. -- 3 of 28 -- 4 the statutory valuation ($61,500,000), rather than the sale price ($63,000,000), should be used as the point of reference in valuing Brisbane Square. [7] That left one critical issue involving planning risk. The owner of Brisbane Square argued planning risk distinguishes the two blocks. That risk is the possibility of an owner being required to provide public open space comparable to Reddacliff Place in a future development of the site. The question is if and how that risk would affect a hypothetical prudent purchaser’s opinion about the value of the site. [8] The owner asserted the site should be valued on the supposition that it is probable the risk would be realised. On that basis, 304 George Street is a more attractive and more valuable property than Brisbane Square. The Valuer-General made no allowance for the risk; and drew no distinction between the two blocks to account for the planning risk relied on by the owner. Underlying their different positions in relation to planning risk were disputes about the town planning advice the hypothetical purchaser would receive and what information a town planner could consider in providing their advice. [9] To determine the value of Brisbane Square, therefore, the Court must address the following questions: 1. What information can the hypothetical purchaser consider? 2. What advice might the hypothetical purchaser receive about planning risk? 3. What impact would that advice have on their assessment of site value? Before turning to those questions, the following features and history of the site are not in dispute. [10] The site is located at 266 George Street, Brisbane on land described as Lot 12 on SP192709, with an area of 7,334m2. It is roughly square shaped, with two trimmed corners. It is subject to an easement on the George Street frontage which does not constrain reasonable development expectations. On the Queen Street frontage, there is a pedestrian thoroughfare and an entry into an underground busway. Although there is some potential for flooding associated with a viaduct adjacent to the site at basement level, neither party considered it significant for valuation purposes. [11] By the 1960’s it had been developed for shops and offices, including well recognised buildings such as the Prudential Building on the Queen Street edge. A large part of the site was once occupied by the iconic Tritton’s Furniture Store, no longer operating -- 4 of 28 -- 5 by the 1990’s. By about the mid 1990’s Suncorp Metway Investment Management Limited had acquired all the parcels of land in the block. Around that time Suncorp demolished all but one building and grassed the balance of the site. Although its precise dimensions are not in evidence, the grassed area was most of the site. It remained vacant from 1993 to 2003. Throughout the decade it was used by the public as a public open space. [12] In February 2002, the Brisbane City Council issued an Invitation to Register an Expression of Interest to provide commercial leasehold accommodation in close proximity to City Hall for use for commercial office accommodation, the Council’s Administration Centre, its Central City Library and a city Customer Service Centre.7 [13] On 18 December 2002 the Council accepted Suncorp’s bid proposing Brisbane Square.8 In June 2003, development approval (DA) was granted for a material change of use for Centre Activities (Office, Shop, Restaurant and Community Facilities). With that DA in place, Suncorp sold the package of land and agreements to Brisbane Square Pty Ltd, which developed the site. It now carries a 34 storey commercial office building with three basement carpark levels. The Council leases Reddacliff Place, which has been slightly reduced since the original lease, although nothing turns on that. Reddacliff Place contains public art features, seating and other amenities. [14] Against that background, I turn to the questions posed earlier. 1. What information can the hypothetical purchaser consider? [15] The land must be valued in an unencumbered state.9 Unencumbered means unencumbered by, amongst other things, any lease.10 For improved land, as this site is, it must be valued assuming all non-site improvements had not been made.11 As well as the buildings themselves, this includes the constructed features of Reddacliff Place. [16] That does not mean the valuation must be conducted in an information vacuum. Although the improvements must be ignored, constraints which would affect the highest and best use of the land need not be. The hypothetical prudent purchaser will 7 Invitation to register an expression of interest, Brisbane City Council, Exhibit 21. 8 Decision of the Brisbane City Council 18 December 2002, Exhibit 20. 9 Land Valuation Act 2010, s 17(1). 10 Land Valuation Act 2010, s 17(2). 11 Land Valuation Act 2010, s 19(1). -- 5 of 28 -- 6 take full account of the restrictions or otherwise upon its present or future use when deciding what to pay to acquire it.12 The past use can be considered in determining the highest and best use of a notionally vacant or virgin site.13 [17] In formulating their advice to a hypothetical prudent purchaser, the owner contended a planner could have regard to both the DA and the lease of Reddacliff Place. The Valuer-General objected to evidence of either. (a) The Development Approval [18] The owner accepted it would be wrong to assess value on the basis that the DA imposes a constraint in respect of Reddacliff Place. The site value is assessed as if the site was unencumbered by any lease, agreement for lease, mortgage or other charge.14 The DA does not confer statutory rights or obligations, favourable or not.15 Nevertheless, the owner argued the DA is relevant in assessing planning risk. [19] There is no prohibition on the valuer having regard to a DA. Because a DA is not necessarily associated with non-site improvements in the way a lease is, it is not contrary to logic that a site could be valued absent non-site improvements, but having regard to the DA. The valuer must assume the land may be used or continue to be used for any purpose for which it was or could have been used at the date of valuation.16 [20] The owner contended the development approval may inform a planner’s advice about constraints on future use. This is not the same as valuing the site on the assumption it is constrained by conditions of the DA. A planning officer assessing a future application would be required to have regard to an existing DA.17 It follows that a planner advising a hypothetical prudent purchaser would consider the existing DA to the extent that it indicates constraints that might be imposed on a future development. 12 Stubberfield v Valuer-General [1991] 1 Qd R 278 at 283-284. 13 PT Limited & Westfield Management Limited v Department of Natural Resources and Mines (2007) 28 QLCR 267 at [54]. 14 Land Valuation Act 2010, s 17; Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610 at 625. 15 PT Limited & Westfield Management Limited v Department of Natural Resources and Mines (2007) 28 QLCR 267 at [57]. 16 Land Valuation Act 2010, s 22(2). 17 Sustainable Planning Act 2009, s 313(3)(b). -- 6 of 28 -- 7 [21] The Valuer-General argued the DA is the result of the subjective commercial decision by the landowner for its own particular commercial or other purposes. It does not create a statutory right or obligation applying generally. To assess value with regard to the DA could lead to differences in value based on the idiosyncratic preferences of a particular developer. [22] Certainly a DA will reveal the developer’s commercial and other purposes for the site. It will also reflect the developer’s responses to the planning scheme and the planning authority’s acceptance that a development in that form is an acceptable planning outcome. [23] Determining the highest and best use for valuation purposes involves an assessment of the planning context. The land cannot be valued as if it is encumbered by a constraint imposed by the DA,18 but the DA is a source of relevant information about the planning context. In determining site value, therefore, the Court will consider the DA in the limited sense that it is something the town planners may take into account in providing advice on planning risk. Counsel for the Valuer-General objected to any evidence based on the DA. That objection is overruled. (b) The Lease of Reddacliff Place [24] When viewing the land in its hypothetical state on the valuation day, the purchaser must assume the lease has not been made and has never been made. That flows from the requirement to determine the expected realisation under a bona fide sale of the unencumbered estate in fee simple. Unencumbered means unencumbered by, amongst other things, any lease.19 [25] Further, the purchaser must assume non-site improvements had not been made.20 The lease of Reddacliff Place is associated with such improvements. There is an obvious difficulty in having regard to a lease associated with improvements which the valuer must assume do not and have never existed.21 18 Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610 at 625. 19 Land Valuation Act 2010, s 17(2). 20 Land Valuation Act 2010, s 19(1). 21 Kent Street Pty Ltd v Department of Natural Resources and Mines (2008) 29 QLCR 198 at p 216, at [72]; p 221 at [88]. -- 7 of 28 -- 8 [26] Excluding the lease does not mean the site is valued in a vacuum. The purchaser will still consider the land in its environment, having regard to its location and its other physical circumstances, and any rights or restrictions.22 [27] However, the owner argues the lease is relevant in the unique circumstances of this case, not as an encumbrance on the title but as something that may inform the purchaser about planning risk; that is, the likely planning decision of the Council and the likely form of any development approval. [28] An actual purchaser would certainly have regard to that information in deciding what price to pay. A prudent purchaser might be expected to consider it more likely they would be required to preserve the public space if they knew it was subject to a 99 year lease to the planning authority that would decide their development application. [29] But this is a valuation for statutory purposes. The hypothetical prudent purchaser is a construct to explain a process that is constrained by the provisions of the Act. The valuation must ignore things which exist in reality.23 It also occurs in the context of statutory valuations generally; and this Court has recognised it is desirable to maintain relativity in statutory valuations between comparable sites.24 [30] The question of the lease only arises because the lessee in this case is also the planning authority. It is an unattractive argument that whether a lease may be considered depends on the identity of the lessee. Adopting that approach leaves open a different approach to similar parcels of land and consequently runs the risk of anomalous results.25 [31] In determining site value, therefore, the Court will not consider the lease. Counsel for the Valuer-General objected to any evidence based on a consideration of the lease. That objection is upheld. 2. What advice might the purchaser be expected to receive about planning risk? [32] The parties called very experienced town planning experts: Mr Buckley for the owner and Mr Ovenden for the Valuer-General. They met and produced a joint expert report 22 PT Limited & Westfield Management Limited v Department of Natural Resources and Mines (2007) 28 QLCR 267 at [57]. 23 Trust Co of Australia Ltd & Anor v Valuer-General (2008) SASC 169 at [114]. 24 Grahn v Valuer-General (1992-93) 14 QLCR 327 at 328-329. 25 PT Limited & Westfield Management Limited v Department of Natural Resources and Mines (2007) 28 QLCR 267 at [59]. -- 8 of 28 -- 9 and Mr Buckley filed a further statement of evidence and, after the hearing, a further affidavit. The planners gave evidence concurrently about the advice they would give to a hypothetical prudent purchaser about reasonable development expectations for the site. [33] Mr Ovenden said the current development of Brisbane Square does not represent its highest and best use.26 A reasonable development expectation would be a podium built to the boundaries, except for a 1.5m set back at ground level, with one or more towers above the podium. That did not provide for public space of the scale or configuration of Reddacliff Place. [34] Mr Buckley said that did not take account of the particular features of this site. He would advise a hypothetical prudent purchaser there would be a high prospect of being required to provide an area of public open space similar to Reddacliff Place. If he took into account the existing DA as well as the planning instruments, he would advise the prospect was almost certain.27 (a) The Planning Instruments [35] In formulating their opinions and giving evidence, the town planners explained how they had applied the relevant planning instruments to the site. The Valuer-General objected to certain passages of Mr Buckley’s Statement of Evidence on the basis that he had purported to instruct the Court on the meaning and effect of the planning instruments discussed. [36] Planning instruments are legislative documents.28 That does not prevent planners from expressing an opinion about how those instruments might be applied in a particular fact scenario. That necessarily involves evaluation and judgment. It is helpful for the Court, in assessing a planner’s opinion, to know how they have interpreted the relevant planning instruments. While ultimately it falls to the Court to interpret them, understanding a planner’s reasoning assists the Court to judge whether their opinion is soundly based. [37] The planners considered a number of planning instruments, primarily: 26 T 1-109, lines 16-22. 27 Exhibit 7, Statement of Evidence – Chris Buckley at [50]-[52]. 28 Zappala Family Co Pty Ltd v Brisbane City Council [2014] 201 LGERA 82 at [52]-[58]. -- 9 of 28 -- 10  the City Centre Neighbourhood Plan (2000)  the draft City Centre Master Plan (2013)  the draft City Centre Neighbourhood Plan (2014) [38] The planners did not agree on the advice they would give under the City Centre Neighbourhood Plan 2000 and had different views of the weight and implications of the draft documents. (i) The City Centre Neighbourhood Plan (2000) [39] On the valuation date the site was subject to the Brisbane City Plan 2000. It was located in the Multi-Purpose MP1 – City Centre and the City Centre Neighbourhood Plan applied. The planners agreed these are the primary assessment tools for future development of Brisbane Square.29 [40] The CC Neighbourhood Plan contains code provisions in Section 3. The code defines the Purpose, Vision and Development Outcomes for the city centre and the Performance Criteria and Acceptable Solutions that will be used to assess development applications. If an application meets all Performance Criteria, it will be approved.30 The Acceptable Solutions state the preferred way of meeting the corresponding Performance Criterion. However, an applicant can demonstrate how an alternative solution does so. A proposal will be refused if it fails to comply with the Acceptable Solutions (except in insignificant details) and cannot be conditioned to mitigate impacts.31 [41] Brisbane Square has very high development prospects, being within a part of the CBD where tall buildings and high Gross Floor Area return would ordinarily be expected.32 The issue is the form of development on this site and whether a hypothetical prudent purchaser would be advised to expect to provide public open space of the scale and approximate location of Reddacliff Place. [42] The planners’ conflicting opinions on that question reflect their differing interpretations of the planning intention for Brisbane Square evinced in the CC Neighbourhood Plan. 29 Exhibit 6, Joint Expert Report of Town Planners at [19]. 30 Brisbane City Plan 2000, Chapter 5, p 3. 31 Brisbane City Plan 2000, Chapter 3, p 28. 32 Exhibit 6, Joint Expert Report of Town Planners at [20]. -- 10 of 28 -- 11 [43] The planners agreed the development outcomes described in Sections 3.4.1 to 3.4.4 were relevant to Brisbane Square. In summary, they provide for:  The role of the City Centre for business and administration to be promoted (3.4.1).  The history and public spaces of the City Centre to be respected (3.4.2).  A vital City Centre (3.4.3).  The City Centre to provide a high quality pedestrian and public domain experience (3.4.4). [44] As for Performance Criteria, the planners agreed the following were relevant to the dispute about open space requirements for Brisbane Square:  P3 & P4 - which concern the impact of a development on the cultural heritage significance of a Heritage Place and on the streetscape and views to the Heritage Place.  P7 - which identifies a built form in different parts of the City Centre.  P8 - which deals with design issues.  P10 - which protects or creates significant view and vistas.  P12 & P21 –which seek to optimise the relationship of the development with the public domain in the street environment and beyond.  P13 & P22 to P25 – which deal with design issues for podium developments.  P26 – which deals with provision of quality pedestrian spaces.  P27 – which provides for additional public open space in appropriate locations. [45] Much of the planners’ evidence centred on the last two performance criteria; with Mr Ovenden placing particular emphasis on P26 and Mr Buckley on P27. They provide as follows: The provision of quality pedestrian spaces P26 The ground level setback provides continuity with adjoining setbacks, or appropriate transition where a difference exists with adjoining setbacks, and is complimentary to the role and function of the street A26.1 Buildings are set back from the road alignment at ground level as specified on Map E A26.2 The design of the ground level setback accords with the relevant diagram on Figure a -- 11 of 28 -- 12 Where appropriate, the ground storey of building development is set back from the street frontage to provide additional pedestrian space adjoining and integrated with the public footpath A26.3 Where podium storeys extend to the road alignment but the ground storey is set back, the upper storeys are cantilevered to avoid a line of columns between the footpath and the walkway causing obstruction and a division in the directional flow of pedestrians. However, where a number of buildings in close proximity already have colonnades, new proposals may include similar colonnading, providing the columns are slender and well spaced A26.4 Ground level public interfaces are the same level as, and connect without any lip or step to, the footpath and abutting pedestrian areas on neighbouring sites. Where the footpath is sloping, entries to the building are at the same level as the footpath P27 In appropriate locations, additional public open space is provided at ground level, as a logical extension to the adjoining public domain A27.1 Small public spaces are provided:  adjacent to cross-block links, or  at street corners, or  adjacent to Heritage Places to create a better setting, or  where they would provide access to an important view or vista identified on Map D, or  as part of the redevelopment of large or significant sites where not compromising an established street front character that would benefit from continuation of the line of existing podiums and setbacks at ground level -- 12 of 28 -- 13 A27.2 These spaces are developed with public art, significant landscaping, furniture and shelter to enhance the public pedestrian experience [46] Mr Ovenden considered P26 encouraged podium development on the site. A26.1 called up Map E which showed a 1.5m setback at ground level for this block. Also relevant were P24 which specified building setbacks and A24 which called up Map B to allow a zero setback at podium level. Drawing on those Performance Criteria, Acceptable Solutions and Maps, Mr Ovenden considered the CC Neighbourhood Plan encouraged podium development to the boundary on Brisbane Square. [47] Mr Buckley disagreed that P26 indicated an intention for podium development on this site. He identified a tension between these two Performance Criteria; a design which met the acceptable solutions for P26 would not necessarily have met the intention of P27. P26 related to continuity of existing setbacks. In his view, it had little relevance to Brisbane Square which does not form part of a continuous built form or streetscape. [48] Mr Ovenden agreed P27 enabled the planning authority to call for public space and provided for exceptions to a continuous line of podium development.33 However, he did not agree that Brisbane Square was an appropriate location for additional public open space, as referred to in P27, because of the other indications for boundary setbacks and form of development for the site. If there had been a specific intention for public open space such as Reddacliff Place to be provided on Brisbane Square, the CC Neighbourhood Plan would have made particular provision for that by declaring it a Special Context Area. He argued that was the appropriate mechanism in the CC Neighbourhood Plan to provide very specific requirements for a developer to inform development expectations.34 [49] The purpose of Special Context Areas was explained in Section 3.4.2., which stated the objective of respecting the history and public spaces of the city centre. The fourth paragraph was of most relevance. It stated: “The City Centre contains a number of areas where urban design features, built form or the use of existing public buildings make a strong contribution to the streetscape, character or functionality of an area. Within these special 33 T 1-48, lines 1-44. 34 T 1-60, lines 19-21; T 1-60, lines 27-35. -- 13 of 28 -- 14 context areas where existing buildings dictate the preferred urban form of the locality, their unique characteristics are respected and the character of more traditional streetscapes is maintained and enhanced.” [50] In 2000, when the CC Neighbourhood Plan was promulgated, Brisbane Square was undeveloped with only one modest building. Otherwise it was an open grassed block. It did not have a built form worthy of protection or management. Mr Ovenden conceded as much,35 but maintained the Council could have declared a Special Context Area to impose development parameters that would preserve the view corridors to Treasury Casino.36 [51] Mr Ovenden’s reasoning relied on an inference about Council’s intentions for the site from its failure to include Brisbane Square in a Special Context Area. The statutory text itself is a more reliable guide to its meaning than an assumption drawn from supposition about what a government authority could have included in this statutory instrument.37 I am not persuaded the fact that Brisbane Square was not included in a Special Context Area affects how P27 should be applied to Brisbane Square. [52] Mr Buckley considered Brisbane Square was an appropriate location for providing an area of public space because of the distinctive features of the site. Its four street frontages provide obvious flexibility in design. It connects to other public domain areas, such as the Queen Street Mall. It is adjacent to the heritage listed Treasury Casino. It is an important gateway to the city centre as it physically connects the Victoria Bridge to the Queen Street Mall and the city centre. It provides a visual connection across the river to Southbank and the Cultural Centre. [53] The importance of the relationship of a development with the pedestrian public domain experience was acknowledged in the CC Neighbourhood Plan in a number of ways. Section 3.4.4 specified an objective to provide a high quality pedestrian public domain experience. It referred to the Queen Street Mall in that context. [54] P12 provided that: “development optimises the relationship with the public domain experienced broadly, beyond the immediate street environment.” 35 T 1-62 to T 1-64. 36 T 1-64, lines 5-9. 37 DNRM v Kent Street Pty Ltd [2009] QCA 399 at [23], per Keane JA (as he then was). -- 14 of 28 -- 15 [55] No acceptable solution was provided for that Performance Criterion. It was to be assessed with the assistance of a Public Domain Engagement Report. Section 7 set out the level of detail and analysis that was expected in such a report. [56] The significance of the pedestrian connection was recognised in Map C. It identified the Queen Street frontage of the site as part of a Primary Pedestrian Street/Frontage which connected Victoria Bridge through to Wharf Street. The importance of the visual connection was noted in Map D which recorded a significant view or vista from the end of the Queen Street Mall over the Victoria Bridge. [57] The owner produced three photo montages to demonstrate the impact on views or vistas of a podium development on Brisbane Square.38 I have not placed any weight on the first image, which Mr Buckley accepted had wrongly set the boundary at the north eastern corner of the site. However, he maintained there was no error in the other two images.39 [58] The montages represent a maximum use of the site. A different podium design could limit the impact on views. Nevertheless, Mr Ovenden agreed that podium development to the boundaries or near the boundaries of Brisbane Square would tend to interfere with views and vistas.40 That is a sensible concession. [59] Given the importance of views and vistas at that site; the importance placed on the public domain experience in the CC Neighbourhood Plan; and the accumulation of features of the site itself, Council could be expected to consider Brisbane Square an appropriate location for an additional area of public open space. I am satisfied that, at the date of valuation, a hypothetical prudent purchaser would be advised they would have to respond to P27 in developing the site. (ii) The Draft Brisbane City Centre Master Plan (2013) [60] On display at the date of valuation was the draft City Centre Master Plan (2013). This is a more general and high level planning document. Its purpose was to inform the content of the 2014 Planning Scheme and, in particular, the draft CC Neighbourhood 38 Exhibit 16. 39 T 2-38, lines 28-30. 40 T 1-49, lines 18 -27. -- 15 of 28 -- 16 Plan. The planners agreed Reddacliff Place was acknowledged in a number of ways in the draft CC Master Plan.41 [61] It bolstered Mr Buckley’s opinion that Brisbane Square was an appropriate place for an area of public open space applying P27.42 He said all the indications in the document went one way; indicating the importance of Brisbane Square for the public realm.43 [62] Mr Ovenden agreed the draft CC Master Plan related the site to maintaining views and vistas. However, he considered that reflected the history of a DA which did not achieve the highest and best use for the site. Further, he had disregarded the DA in forming his opinion.44 He noted the widened road reserve adjacent to the site already provided a wide throat to Queen Street.45 [63] If a development proposal for Brisbane Square was code assessable, the draft CC Master Plan would not be considered in the assessment process.46 That must affect its weight. It supports Mr Buckley’s view, though, that Brisbane Square makes a significant contribution to the public realm and would be considered an appropriate location to provide additional areas of public open space. (iii) The Draft City Centre Neighbourhood Plan (2014) [64] Also publicly notified and displayed at the time of valuation was the draft Brisbane City Plan (2014). It would have been considered in a development assessment process for the site at that time.47 Like the 2000 Plan, the draft Brisbane City Plan contained a draft City Centre Neighbourhood Plan. A hypothetical prudent purchaser, would have taken account of the draft Brisbane City Plan, including the draft CC Neighbourhood Plan.48 [65] Mr Ovenden considered the draft CC Neighbourhood Plan supported his opinion a large area of public space would not be required at Brisbane Square. It maintained the aspects of the 2000 CC Neighbourhood Plan that would allow a podium development 41 T 1-98, line 36 to T 1-99, line 2. 42 Exhibit 6, Joint Expert Report of Town Planners at [38]; T 1-74 lines 1-4. 43 T 1-55, lines 14-29; T 1-58, lines 4-18; T 1-82, lines 27-31; T 1-100, lines 41-44. 44 Exhibit 6, Joint Expert Report of Town Planners at [58]. 45 T 2-13, lines 13-43. 46 Sustainable Planning Act 2009, s 313(5). 47 Sustainable Planning Act 2009, ss 317 and/or 495(2)(a). 48 Exhibit 6, Joint Expert Report of Town Planners at [47]. -- 16 of 28 -- 17 on the site. Despite the provisions of the draft CC Master Plan (2013), the draft CC Neighbourhood Plan did not provide, specifically, for public open space at Brisbane Square.49 [66] In questioning Mr Buckley about his opinion, counsel for the Valuer-General placed considerable emphasis on the fact that the CC Neighbourhood Plan did not include an equivalent provision to P27. [67] Mr Buckley considered the draft Plan integrated the requirement to consider the public realm throughout the document, demonstrating a maturation of approach to urban design activities.50 As the plan was drafted in the full knowledge that Reddacliff Place existed, it did not need to provide for it. It was already there.51 [68] I accept Mr Buckley’s reasoning. I am satisfied the draft plan would not materially alter the advice that a hypothetical prudent purchaser would receive about responding to P27 on the site. (b) The History of the Use of the Site and the Development Approval [69] The owner contended a planner would advise there was a high probability the purchaser would be required to provide a roughly equivalent public space, in roughly the same location, in any future development of the site. That advice reflects the continuity of use of a significant portion of the site as open space since 1993. [70] The Valuer-General argued that history of use has less significance for planning risk than the owner placed on it. Reddacliff Place was the result of commercial negotiations reflecting the public oriented requirements of the Council. It involved a rent reduction in exchange for Council’s financial contribution to construction of the square. It was not the exercise of the Council’s statutory power as the planning authority. [71] Mr Buckley accepted Reddacliff Place had its genesis in commercial negotiations prior to the issue of the DA.52 However, he also said the history of open space on the 49 T 1-96, lines 28-46. 50 T 2-84, lines 25-32. 51 T 1-97, lines 5-12. 52 T 2-91, lines 17-24; Exhibits 20 and 21. -- 17 of 28 -- 18 site aligns with quite well articulated provisions in the CC Neighbourhood Plan which were reinforced by the draft CC Master Plan.53 [72] Further, the Council considered Suncorp’s proposal was attractive for planning purposes, as well as commercial ones. The minutes of decision contain the following observations:  Suncorp’s proposal was described as the outstanding submission.  The proposed level of development density was a major positive attribute. It provided for one major tower building representing less than half of the allowable gross floor area for the site.  The result was a major portion of the site being left as open space; a civic square forecourt extending from the proposed tower building across Queen Street to the steps of Treasury Casino.  The square would be regarded as a major public space, acting as a gateway from the Victoria Street Bridge through to the Queen Street Mall.  The civic space would be a major destination point in Brisbane and would reflect a number of the Council’s future planning themes.54 [73] In Mr Ovenden’s opinion, the current use does not represent the highest and best use.55 He would have advised a purchaser they would be well placed to negotiate a different level of development of the site.56 However, if he was able to take into account the area had been used as a significant public space for a decade, he would be more guarded in his advice about their prospects.57 (c) The Size of the Public Space [74] Accepting Brisbane Square is an appropriate location for providing additional public space, the question of size arises. There is some tension in the terminology used in P27 which refers to “additional public open space” and A27.1 which allows “small public spaces”. Mr Ovenden maintained P27 could be met without having to give 53 T 2-107, lines 36-39. 54 Decision of the Brisbane City Council 18 December 2002, Exhibit 20 at [23]. 55 T 1-109, lines 16-22. 56 T 2-107, lines 29-34. 57 T 1-113, lines 35-38. -- 18 of 28 -- 19 over a space as large as Reddacliff Place, which is 30% of the site.58 That argument has merit. [75] Mr Buckley suggested the scale is relative; the larger the site the greater the provision that might be expected. Mr Buckley also relied on particular features of the site in assessing what area might be required. The design flexibility afforded by the four street frontages allows for more intensive development than currently exists on the site.59 That said, although he considered there was a high probability as much as 30% of the site might be required, he proposed 25% as also a reasonable requirement for that site.60 [76] Mr Ovenden agreed Brisbane Square offers significant opportunities for creative design outcomes.61 He suggested the planning approval for 304 George Street indicates how P27 would be applied to Brisbane Square. That provided a retail mall with cross-block pedestrian lines leading to a central heart. [77] Mr Buckley rejected the analogy with 304 George Street. Although it has four street frontages and a similar area, it does not have the relationship across the river or the view requirement off the Queen Street Mall.62 He accepted the development on 304 George Street complied with P27 by providing small spaces, but maintained the distinction between the two sites and how P27 would apply to them.63 [78] I accept there is a material distinction between the two sites that would have affected the advice a purchaser would have received at the date of valuation. (d) Advice about Planning Risk [79] The comprehensive reasoning of experienced planners justifying conflicting opinions about planning risk for Brisbane Square demonstrates the uncertainty about the planning approval a hypothetical purchaser might expect to secure. [80] As I interpret the CC Neighbourhood Plan, a developer would have to respond to P27. P26 does not prescribe a planning intention for Brisbane Square that would exclude 58 T 2-5, lines 30-38. 59 T 2-31, line 45. 60 Exhibit 7, Mr Buckley’s Statement of Evidence at [51]. 61 T 2-30, lines 32-33. 62 T 2-48, lines 25-28. 63 T 2-49, line 23. -- 19 of 28 -- 20 P27. Neither is P27 limited in its application to Brisbane Square because the site is not included in a Special Context Area. Brisbane Square is an appropriate location to provide additional public open space given its prominent and strategic location from a planning perspective and the dimensions and features of the site itself. [81] Although it must be given less weight, the draft CC Master Plan acknowledges the importance of Reddacliff Place to the public domain. It reflects the reality of the importance of Reddacliff Place as part of the existing public domain. [82] The omission of P27 from the draft CC Neighbourhood Plan does not alter my view. The extension of the public domain that P27 seeks to achieve in appropriate locations is reflected in other ways in the draft CC Neighbourhood Plan. [83] The mechanism for achieving public open space was the subject of debate during the hearing, in written submissions and further evidence addressing the possibility that such an area might be considered to be development infrastructure. That appears to have arisen from a misapprehension about some evidence from Mr Buckley. It is also a distraction. [84] In the framework of applicable planning instruments, given the continuity of public open space on site and the DA itself, a hypothetical prudent purchaser would be advised it would be highly probable the Council would seek a commitment of equivalent public open space. The history and level of use of the generous space on this site signals high public interest in its future development. A hypothetical prudent purchaser would assume the Council would be sensitive to any reduction to the area of public space. [85] The scale of a requirement for 30% public open space does not fit comfortably with the phrase small public space used in A27.1. However, P27 uses the term additional public space in appropriate locations. Whether P27 supported a condition of that scale would have to be interpreted in the context of the unique features of the site and its history of use. [86] It is not as simple as arguing that P27 could be satisfied by a smaller and different configuration of public space and, as a Code compliant development, the Council would have to approve it. -- 20 of 28 -- 21 [87] Ultimately, if the developer did not propose an area of public open space that satisfied the Council, the Council could either impose a condition or refuse the application. [88] The Valuer-General expressed legitimate reservations about the enforceability of a condition involving as much as 30% of the site. It is not required by the development so would have to be relevant to, but not an unreasonable imposition on it.64 There is a broad discretion to impose lawful conditions and the Court determining any challenge to the condition would have to consider all relevant factors. A prudent purchaser would be advised they would have reasonable prospects of succeeding in securing a development approval with a smaller area of public space and a different configuration to Reddacliff Place. [89] However, the outcome is by no means certain and the prospect of potentially costly litigation with associated delays would not be attractive to a potential purchaser. [90] One of the owner’s grounds of appeal (ground 2) is that the valuation does not reflect the legal constraints on the use of the land. That ground is not made out as I am not satisfied Brisbane Square should be valued as if the land is legally constrained by the either the DA or the City Plan. [91] However, the conclusions I have reached about planning risk is relevant to the first ground of appeal: that the valuation is not supported by property sales (ground 1). [92] It is not the function of this Court to decide the planning outcome on a hypothetical case. In assessing the site value, the Court must consider the level of uncertainty about the possible planning outcome and determine the likely impact of that uncertainty on the mind of the hypothetical prudent purchaser.65 [93] It stands to reason the hypothetical purchaser’s view of the value of Brisbane Square will be affected by two things: the high probability that Council would want to retain a public open space area equivalent to Reddacliff Place; and the cost, delay and uncertainty of outcome involved in negotiations with Council or litigation about such a requirement. 64 Sustainable Planning Act 2009, s 345(1). 65 Gold Coast City Council v Dobson (2014) 35 QLCR 279. -- 21 of 28 -- 22 [94] The remaining issue, then, is whether the Valuer-General has accounted for the planning risk for Brisbane Square in arriving at its valuation in the light of comparable sales. 3. What impact does the advice about planning risk have on value? [95] The Court was assisted by the valuation evidence given concurrently by Tristan Gasiewski, engaged by Brisbane Square, and Benjamin Hart, engaged by the Valuer- General. They provided a Joint Expert Report and each provided a Statement of Evidence. [96] In assessing the site value of Brisbane Square, both valuers considered the critical issues were how to analyse the sale of 304 George Street and how to deal with the possibility of a requirement to provide 30% of the site as public open space. [97] Although they referred to other CBD properties in their reports, they did so for the sake of completeness, to put the sale of 304 George Street in context. They raised no differences of substance in how to regard those sales.66 Further, other matters raised in their report had little bearing on their opinions: the design of a development representing the highest and best use of the site; the easements; the viaduct and its potential to flood; and the historical site value assessments for Brisbane Square.67 [98] Given that, the other CBD sales and the matters just referred to will not be addressed further, except for the methodology used by the Valuer-General in previous site value assessments. That is relevant to their competing opinions about how the possibility of a public open space requirement might be accounted for. [99] Returning to the sale of 304 George Street, after adjusting the sale price for certain items, Mr Gasiewski arrived at a value for that site of $7,793/m2 ($61,500,000 for the site as a whole). That is the figure he used as his starting point for assessing the site value for Brisbane Square. 66 T 3-10, line, 39 to T 3-11, line 30. 67 T 3-4, line 31 to T 3-11, line 39. -- 22 of 28 -- 23 [100] Mr Hart did not agree with Mr Gasiewski’s adjustments to the sale price for 304 George Street. He also made a further adjustment for site holding costs, arriving at a rate of $8,174/m2 ($64,508,959 for the site). [101] After the sale, the Valuer-General assessed the site value of 304 George Street at $61,500,000. During evidence Mr Hart agreed that was a sound assessment. Given that evidence, the Valuer-General conceded that the assessed site value should be used in valuing Brisbane Square. Incidentally, the assessed site value and Mr Gasiewski’s adjusted sale price are the same: $61,500,000. [102] The remaining valuation issue is if and how to apply the site value of 304 George Street to Brisbane Square so as to account for the planning risk related to a public open space requirement. [103] In his calculations, Mr Hart arrived at a site value for Brisbane Square of $60,000,000, applying a rate of $8,200/m2 derived from his analysis of the sale of 304 George Street. [104] Giving effect to the Valuer-General’s concession that $61,500,000 should be the starting point, the rate per m2 should be $7,793. Applying that to Brisbane Square as an overall rate, the site value on Mr Hart’s reasoning would $57,153,862. [105] During evidence Mr Hart confirmed he would make no discount for a public space requirement. Assuming 25% was required for that purpose, the developer would not lose any effective site cover as the GFA above the podium would be unaffected. Nor would the developer lose access to underground basement levels.68 Mr Hart accepted there were some design limitations in relation to an A-grade office tower but maintained, with some impact on the design at podium level, that three towers above podium level could be accommodated on the site.69 [106] Mr Gasiewski described that as theoretical GFA. Just because it was possible to build it, did not make it commercially viable. He said there is little evidence the theoretical GFA is used on sites. Very tall skinny towers could be built, but they are more expensive to construct because of supporting infrastructure and engineering costs. Further, they do not meet the market demand for a floor plate size of 1,500m2 to 68 T 3-12, line 35 to T 3-13 line 39. 69 T 3-16, line 7 to T 3-17, line 37. -- 23 of 28 -- 24 1,700m2 for an A-grade office tower. If the approach advocated by Mr Hart was adopted, he saw the potential for unmarketable design outcomes with buildings facing each other or limiting natural light or view corridors. His discount reflected the design limitations arising from a public space requirement.70 [107] During evidence, there was considerable debate about what buildings could be accommodated on the site and how they could be configured to meet a public open space requirement equivalent in area to Reddacliff Place.71 No conceptual plans were produced and the merits of different options could not be explored in a meaningful way. [108] Given Brisbane Square’s strategic location from a planning perspective, and to maximise views and vistas, it is reasonable to assume any public space requirement would be oriented from and along the Queen Street frontage of the site. The design limitations relate to the location, as well as the dimensions, of that space. [109] In the Joint Expert Report, Mr Hart said “the market, which includes prudent vendors and purchasers, operates in an environment where there is complexity and conjecture in town planning”.72 That is so, but that does not mean complexity and conjecture have no impact on value. [110] Mr Hart conceded a prudent purchaser would probably prefer not to have a public open space requirement.73 He also conceded that this may be linked to value.74 It stands to reason that if a purchaser would prefer not to have a public open space requirement of that order on a site, the potential imposition of such a requirement must have some negative impact on their assessment of the site value. [111] However, Mr Hart made no allowance for this in his assessment. The valuation is not supported by the sale of 304 George St because the Valuer-General has not accounted for the particular planning risk that distinguishes Brisbane Square from that site (ground 1). 70 T 3-13, line 43 to T 3-14, line 31. 71 T 3-37, line 1 to T 3-44, line 6; T 3-79, line 20 to T 3-82, line 31. 72 Exhibit 8, Joint Expert Report of Valuers at [45]. 73 T 3-23, lines 35-41. 74 T 3-24, lines 31-33. -- 24 of 28 -- 25 [112] The owner has established that the Valuer-General has not accounted for the different planning risk related to Brisbane Square, either in considering the sale of 304 George St and in arriving at the valuation for that site. I am satisfied that grounds 1 and 8 of appeal are made out. [113] The Court must look, therefore, to some methodology to reflect that impact in valuing Brisbane Square. [114] Mr Gasiewski applied different rates to different areas of Brisbane Square. He applied $7,800/m2 to 70% of the site which he called unburdened. The rate was derived from his analysis of the sale of 304 George Street. For the remaining 30%, which he called burdened, he applied a rate of $1,950/m2. That is 25% of the rate applied to unburdened area and reflects his view of the utility of the burdened area. It could still be used for subterranean basement car-parking that would benefit the development. It would provide a more attractive entrance to the site and attract custom for retail tenants. He chose 25% as close to the upper end of a range of between 10% and 30% of the unburdened rate.75 Applying those rates to those areas, he calculated a site value of $44,820,000, which he rounded up to $45,000,000. [115] Mr Hart did not accept a public open space requirement equated to a straight loss and a straight deduction in value.76 Nevertheless, he accepted the Valuer-General had adopted a similar approach to Mr Gasiewski’s for previous statutory valuations of Brisbane Square, although the discounted rate used by the Valuer-General was 33% not 25%. He also agreed that different rates for land with different utility was an accepted methodology.77 [116] Given that evidence, the Court accepts applying a discounted rate to some area of land is an appropriate way to reflect the impact on value of the uncertainty of the planning outcome in relation to public open space. [117] However, there are difficulties with the way in which Mr Gasiewski has adopted that methodology in valuing Brisbane Square which mean his calculation cannot be accepted without modification. 75 Exhibit 8, Joint Expert Report of Valuers at [62]. 76 T 3-23, lines 30-34. 77 T 3-26, line 11 to T 3-28, line 13. -- 25 of 28 -- 26 [118] Firstly, the area of land calculated as burdened exceeded the case as conducted by the owner. Counsel’s submissions for the owner suggest Mr Gasiewski assessed value on the assumption that 25% of the site would be burdened.78 In fact, Mr Gasiewski applied the discounted rate to just under 30% of the site. 79 [119] While that is consistent with the more robust of the opinions expressed by Mr Buckley,80 the case was conducted by the owner with emphasis on Mr Buckley’s opinion that a lesser area of 25% might be reasonable.81 As the case was run on that basis, and the town planning and the valuation experts were questioned on that assumption, the Court will adjust Mr Gasiewski’s calculations to reduce the burdened area from 30% to 25%. [120] Secondly, Mr Gasiewski treated as certain an outcome that is by no means so. The Court accepts there is a high probability Council would want to retain a public open space area equivalent to Reddacliff Place. However, the outcome of any negotiations with Council or litigation about such a requirement is uncertain. The possibility that such a public open space requirement could be successfully challenged is one aspect of the uncertainty that would affect the hypothetical prudent purchaser’s assessment of value. Mr Gasiewski’s calculations, therefore, need to be further modified to account for the uncertainty of the planning outcome. [121] Thirdly, he has not applied the same distinction between burdened and unburdened land on 304 George Street in devising the rate he used as the unburdened rate for Brisbane Square. There are some areas of additional public open space provided on 304 George St. That appears from the architectural plans82 and from the town planning assessment report.83 The ground floor plane contains pedestrian passageways into a retail mall at the core of the site. Public rest areas are located along the pedestrian passageways. The proportion of additional areas of public open space on 304 George Street is not in evidence. Nevertheless, the overall site rate for 304 George Street reflects the utility of the site as a whole, including those public open space areas. 78 Appellant’s submissions at [100]. 79 T 3-12, line 11; T 3-15, lines 4-18. 80 Statement of Evidence of Chris Buckley at [50]. 81 Statement of Evidence of Chris Buckley at [51]. 82 Exhibit 18 (map 4.1.1). 83 Exhibit 19. -- 26 of 28 -- 27 [122] Adopting that rate as an unburdened rate has the effect of distorting both the burdened and unburdened rates applied to Brisbane Square and results in a greater discount to the value of Brisbane Square. [123] Given those conclusions, the Court cannot adopt Mr Gasiewski’s assessment of value, without modification. As explained, the first modification is to reduce the burdened area to 25% of the site, consistent with the case presented by the owner during the hearing. [124] Dealing with the other issues is more problematic. There is no objective measure for adjusting Mr Gasiewski’s methodology to account for the uncertainty of the town planning outcome and the distortion of the burdened and unburdened rate applied to Brisbane Square. To account for those features, the burdened area will be further reduced to 15%. Adapting Mr Gasiewski’s table from the Joint Expert Report,84 the approach adopted by the Court results in the following calculation. Unburdened site area (85% of the site) 6,234m2 @ $7,793/m2 (rate per m2 on $61,500,000 site value for 304 George Street) = $48,581,562 Burdened site area (15% of the site) 1,100m2 @ $1,948/m2 (25% of the unburdened rate) = $2,142,800 Calculated value $50,724,362 That will be rounded down to $50,700,000. [125] If the overall site rate for 304 George Street ($7,793) is applied to the entire area of Brisbane Square (7,334m2), the assessed value would be $57,153,862. An assessed value of $50,700,000 applies a discount of almost 9% on the value derived from a comparable site. That is a reasonable discount in the unusual circumstances of this case. A hypothetical prudent purchaser could be expected to negotiate a meaningful discount if advised there is a high probability Council would seek a commitment of public open space similar to Reddacliff Place and that the prospects of successfully challenging such a requirement are not certain. 84 Exhibit 8 at [63]. -- 27 of 28 -- 28 ORDERS: 1. The appeal is allowed. 2. The site value of Lot 12 on SP 192709 in the County of Stanley, Parish of North Brisbane, as at 1 October 2013 is determined at Fifty Million, Seven Hundred Thousand Dollars ($50,700,000). FLEUR KINGHAM PRESIDENT OF THE LAND COURT -- 28 of 28 --