Caseldan Pty Ltd v Moreton Bay Regional Council [2016] QLAC 1 (2016) 37 QLCR 151

LAND APPEAL COURT OF QUEENSLAND CITATION: Caseldan Pty Ltd v Moreton Bay Regional Council [2016] QLAC 1 PARTIES: CASELDAN PTY LTD (ACN 100 589 571) AS TRUSTEE UNDER INSTRUMENT 705893791 (appellant) v MORETON BAY REGIONAL COUNCIL (respondent) FILE NO/S: LAC No. 001-15 Land Court No. AQL809-12 DIVISION: Land Appeal Court of Queensland PROCEEDING: Appeal from the Land Court of Queensland ORIGINATING COURT: Land Court at Brisbane DELIVERED ON: 24 June 2016 DELIVERED AT: Brisbane HEARING DATE: 31 March 2015 – 2 April 2015 THE COURT: Peter Lyons J PA Smith, Member of the Land Court WL Cochrane, Member of the Land Court ORDERS: 1. The appeal is allowed 2. Compensation is determined in the amount of Four Million, One Hundred Thousand Dollars ($4,100,000). CATCHWORDS: REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – compensation – assessment – market value – highest and best use – where land used as a golf course was compulsorily acquired by Council for “recreation ground purposes” – whether the subject site could be used for mixed use development – consideration of access alternatives in the context of surrounding development – whether the Land Court erred in finding that the hypothetical prudent purchaser would have considered the likelihood of obtaining appropriate access for development on the subject site was low – whether the Land Court erred in concluding that the highest and best use of the land was for sport and recreation purposes -- 1 of 47 -- 2 REAL PROPERTY – COMPULSORY ACQUISITION – compensation – assessment – other considerations – whether Council’s opposition to the use of its private road for access to development on the subject site was a result of the resumption process – whether the Council could have been required by the Planning and Environment Court to allows its road to be used for access to the resumed land REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – compensation – assessment – market value – whether offers to purchase the resumed land could be taken into account – whether offers were genuine – relevance Acquisition of Land Act 1967 (Qld) Land Court Act 2000 (Qld) s 7 Sustainable Planning Act 2009 (Qld) s 324, s 325, s 329(1)(b), s 344, s 345 Auxil Pty Ltd & Anor v Terranova & Ors (2009) 260 ALR 164 Baiyai Pty Ltd v Guy [2009] NSWCA 65 Brisbane City Council v Mio Art Pty Ltd [2012] Qd R 1 Chen v Karandonis [2002] NSWCA 412 Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48 Goold v Commonwealth (1993) 42 FCR 51 Gregory & Anor v Commissioner of Taxation of the Commonwealth of Australia (1971) 123 CLR 547 Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 Heavey Lex No. 64 Pty Ltd v Chief Executive, Department of Transport (2001) 22 QLCR 177 Intrapac Parkridge Pty Ltd v Logan City Council & Anor [2014] QPEC 48 James Patrick & Co Pty Ltd v Minister of State for the Navy [1944] ALR 254 McDonald v Deputy Federal Commissioner of Land Tax (NSW) (1915) 20 CLR 231 MMAL Rentals Pty Ltd v Bruning (2004) 63 NSWLR 167 Nelungaloo Pty Ltd v Commonwealth & Ors (1948) 75 CLR 495 Phillipou & Anor v Housing Commission of Victoria (1969) 18 LGRA 254 COUNSEL: D O’Brien QC for the Appellant C L Hughes QC & N Kefford for the Respondent SOLICITORS: Corrs Chambers Westgarth for the Appellant Moreton Bay Regional Council (Legal Services Department) for the Respondent -- 2 of 47 -- 3 THE COURT: [1] On 20 July 2012, land then owned by the appellant (Caseldan) was resumed “for recreation ground purposes”1. Caseldan has appealed against the determination of the value of the land, as at the date of resumption, of $1.8 million. General background [2] The only shareholders of Caseldan are Ms George and her husband2. Ms George is also the sole director and secretary of Caseldan. [3] The land is on the eastern side of South Pine Road at Brendale, a short distance north of the Cash’s Crossing Bridge over the South Pine River. [4] The learned Land Court Member described the shape of the land as “something like a reversed letter C”3. The upper and lower arms of this irregularly shaped allotment have frontage to South Pine Road at their western ends. [5] The land has an area of 10.1 hectares. At the date of resumption, it was being used as a ten hole golf course with some associated facilities and a restaurant. Notwithstanding its road frontages, vehicular access was only to the northern arm, via a short service road on the eastern side of South Pine Road4. [6] The land falls gently east from South Pine Road, towards the South Pine River. The eastern part of the land terraces down to the flood plain. Power lines cross the land on an easement running from the northeast to the southwest. 1 See Vol 3 of the Appeal Record (AR) 502; in the Notice of Intention to Resume, the purpose was said to be “sport and recreation purposes”: 3 AR 485. 2 Reasons for Judgment of the Land Court (RJ) [68]. 3 RJ [13]. 4 RJ [13] – [14] -- 3 of 47 -- 4 [7] Under the Pine Rivers Plan 2006 (2006 Plan), the land was zoned for sport and recreation5. That zoning reflected the zoning of the land from at least 19886. [8] Enclosed within the arms of the land, and having frontage to South Pine Road, are two parcels of land, together referred to as the Comiskey land7. This land has good access to South Pine Road. In 2009, approval was granted for the development of the southern parcel for a hotel and motel, at a time when this land was included in the sport and recreation zone. The hotel, but not the motel, had been constructed at the time of the resumption. An appeal to the Planning and Environment Court in relation to an application for a development approval for a supermarket and some related development on the northern parcel of the Comiskey land was unresolved at the date of resumption. [9] Approximately opposite the boundary between the northern and southern parcels of the Comiskey land, on the western side of South Pine Road, is Bunya Park Drive, which gives access to a substantial area of urban residential development, generally to the west. A short distance to the north, approximately opposite the northern boundary of the resumed land, is Eaton’s Crossing Road, which runs initially west, then northwest, from South Pine Road. From where Eaton’s Crossing Road changes direction, back to South Pine Road, is a short road, Apex Grove. It would appear that Apex Grove is dedicated through to South Pine Road, joining it approximately opposite the boundary between the Comiskey land and the northern arm of the resumed land; but that the constructed road surface does not continue through to South Pine Road8. [10] To the north and to the east of the north eastern corner of the resumed land is a large parcel of land owned by the Council. It has been developed as the South Pine Sporting Complex (SPSC). Along the northern border of the resumed land is a strip of land linking the SPSC to South Pine Road. This functions as a private, though Council-owned, road, providing access to the SPSC (Council’s road). This access road then swings to the north through the SPSC, connecting to a public (gazetted) road, Cribb Road. There is a gate at the northern end of this access road. The western part of Cribb Road, toward South Pine 5 RJ [21]. 6 See RJ [73]. 7 RJ [15]. 8 See 4 AR 693. -- 4 of 47 -- 5 Road, was not constructed; though it was constructed (with a gravel surface) to the east, linking the SPSC to Leitch’s Road to the northeast. [11] To the west (to South Pine Road) of the SPSC9 were areas of land referred to as the Murphy land, purchased by the Council in 2007 for the expansion of the SPSC. On 14 June 2012, the Council made an application to itself for a preliminary approval for a material change of use for the SPSC and the Murphy land10. These lands were then in the Sports and Recreation Zone11. The application proposed a new, constructed, intersection where Cribb Road joined South Pine Road. It also proposed an internal road between Cribb Road, and the Council’s road. Access was proposed via the Council’s road to South Pine Road, i.e., at the junction with Eatons Crossing Road (Access A); and along Cribb Road in an easterly direction to Leitchs Road, and then north along Leitchs Road (Access D)12. Access A and Access D were together described in the report as “the main access intersections”13. In addition to an expansion of sporting facilities, the proposed development included significant commercial development on that part of the land adjoining South Pine Road (part of the Murphy land), and some distance back from it. This land is immediately to the north of Access A. While the extent of commercial development was not specified, Mr Ovenden, a town planner who had examined the development application, expressed the unchallenged view that the extent of such development reflected in the Council’s development application was between 6,500 square metres, and 8,500 square metres, which would appear to be a reference to the proposed floor area14. [12] It is convenient to record that the Council resolved to acquire the land to which this appeal relates on 13 December 2011, and the Notice of Intention to Resume the land is dated 12 January 2012. 9 See 3 AR 620, 626. 10 See RJ [34]-[35]. 11 7 AR 1370. 12 See 8 AR 1512; 1541-1543. 13 8 AR 1542. 14 1 AR 131. -- 5 of 47 -- 6 Shopping Centre proposal [13] In about 200915 an application was made for a development approval for the shopping centre and related facilities on the northern part of the Comiskey land. The application was refused. The applicant appealed to the Planning and Environment Court. By the time of the hearing of this appeal, the proposal was for a full line supermarket with a floor area of 3,200 square metres, a gym, and supporting retail outlets. The appeal was opposed by the Council, and by Ms George as a respondent by election. The Department of Transport and Main Roads (DTMR) was also a respondent by election. The issues in the appeal were need (economic and community need); impact on amenity and character; conflict with other parts of the planning scheme (including the established shopping centre hierarchy); and impact on traffic flows on South Pine Road16. [14] On 24 October 2011, R S Jones DCJ delivered reasons in the appeal. He found that the proposal was not in any genuine conflict with the provisions of the scheme relating to the retail hierarchy, and to the extent that there was conflict, it did not in itself warrant refusal17. Nor did the proposal create any genuine conflict with those parts of the planning scheme dealing with character and amenity18. He also found there was a strong economic need for the proposed development19. He accepted evidence that the proposal by Comiskey (the term ‘Comiskey’ refers, depending on the context, to the Comiskey family, members of the Comiskey family and/or related companies) for dealing with traffic issues, particularly by way of the treatment of the South Pine Road-Bunya Park Drive intersection, was not satisfactory20, but noted that the traffic engineers considered that an acceptable solution could be found, and concluded that the likely solution would be an overall master plan or structure plan including, amongst other things, provision for future development of land “north of the site”; which appears to have involved an additional road connection from the eastern side of South Pine Road21. The fact that community wellbeing would be materially improved by the development outweighed the conflicts 15 See 4 AR 795. 16 6 AR 1154. 17 6 AR 1163. 18 6 AR 1165. 19 6 AR 1158. 20 6 AR 1166 21 6 AR 1169. -- 6 of 47 -- 7 with the planning scheme which were at the lower end of the scale22. Accordingly, his Honour adjourned the appeal for further submissions about its future conduct. [15] On 8 November 2011, the Council’s Co-ordination Committee adopted a resolution which recommended that, in light of the reasons for judgment in the Comiskey appeal, the Council would not oppose the proposed Comiskey development, subject to an appropriate traffic solution; but that the Council did not agree to its private access road being gazetted as a public road, nor having connections to it, whether from the Comiskey land or from other adjacent land23. [16] The traffic engineers involved in the appeal met on 20 January 2012, and subsequently produced a joint report dated 1 February 2012. That report showed that, notwithstanding the Notice of Intention to Resume Caseldan’s land, they continued to work towards a traffic solution which involved (amongst other things) access both to the Comiskey land and, it would seem, the resumed land, by use of the Council’s private access road24. [17] The Comiskey appeal came before Judge Jones again on 28 February 2012. His Honour made directions for the further consideration of traffic issues by the traffic engineers, but excluding the “loop road”; thereby excluding from consideration access to South Pine Road from the east, along the Council’s road25. In doing so, he recognised that a solution based on such access would involve land “held in private ownership”, so that the imposition of such a solution would be “beyond the jurisdiction of this Court”26 in view of the attitude expressed in the resolution of 8 November 2011. [18] The traffic engineers retained for the Comiskey appeal then produced their fifth joint report dated 26 April 201227. The major traffic issue identified in this document concerned the adequacy of the proposed intersection at Bunya Park Drive, which would provide access to the proposed development on the Comiskey land. 22 6 AR 1172. 23 6 AR 1179. 24 6 AR 1228; 1216. 25 6 AR 1237, 12 AR 2279. 26 12 AR 2283. 27 See 7 AR 1309. -- 7 of 47 -- 8 [19] At a further hearing on 24 October 2012, the appellant in the Comiskey appeal was unable to demonstrate that satisfactory arrangements could be made for access to the proposed development, and the appeal was dismissed on 15 November 201228. Decision of Land Court [20] The learned Member determined the market value of the resumed land at $1.8 million at the date of its resumption29, resulting in what appears to be a declaration to that effect30. In coming to his conclusion, the learned Member accepted the evidence of Mr Gillespie, the valuer who gave evidence in the Council’s case31. Mr Gillespie valued the land on the basis of its use as a 10-hole golf course with an uplift of 20 per cent to allow for the possibility of some further development of that part of it adjoining South Pine Road, adjacent to the veterinary surgery32, consistent with the view of Mr Simonic, the town planner called in the Council’s case33. [21] In reaching this conclusion, the learned Member rejected major components of the case advanced on behalf of Caseldan. The first was that the highest and best use of the land, by reference to which it should be valued for the purpose of compensation, was as a site for a mixed use development consistent with a plan prepared by Mr Ovenden (Ovenden plan)34. It is apparent that this involved far more extensive development than that allowed for in Mr Gillespie’s valuation35. The second component which the learned Member rejected was advanced in the alternative, namely that the land was to be valued by reference to its potential conversion into sporting fields for private clubs or schools36. The third was that substantial weight should be given to a series of offers made for the purchase of the resumed land between 2005 and 2011, ranging in amounts from $3.69 million to between $6 million and $8 million37. 28 7 AR 1346-1355, specifically paras [32]-[33]. 29 RJ [221]. 30 13 AR 2673. 31 See RJ [218]. 32 RJ [196]. 33 3 AR 563-564 34 RJ [23]; the plan appears at 4 AR 733 and 3 AR 647. Some explanation of the plan appears in Mr Ovenden’s report at 3 AR 642-644. 35 See 3 AR 593, 563-564. 36 RJ [23]. 37 The offers are listed at RJ [197]. -- 8 of 47 -- 9 [22] In relation to the highest and best use of the resumed land, the learned Member held that a prudent purchaser would have considered the likelihood of obtaining town planning approval for the mixed use development of the kind shown in the Ovenden Plan, as very low38. In considering this issue, the learned Member concluded that “(t)he availability of the loop road was crucial”39, noting Mr Ovenden’s agreement that “access was fundamental” for such a form of development40. His Honour said41, “(t)he hypothetical prudent purchaser would have considered the likelihood of obtaining appropriate access for development in accordance with the Ovenden Plan as very low and, if able to be achieved at all, to be expensive due to the need to buy cooperation in addition to constructions costs”. [23] His Honour noted other difficulties which an applicant for such an approval would face42. He expressed the view that the Council’s application for a preliminary approval for the development of the Murphy land “would not be a great source of comfort to a prospective purchaser” of the resumed land. That was because it was at an early stage; it was for a preliminary approval only; and the timing of the development was unknown43. [24] The learned Member’s conclusion was substantially the result of his earlier consideration of the likelihood of obtaining appropriate access for a mixed use development of the resumed land. [25] It is convenient at this point to identify the proposed means by which access might be obtained from the land to the external road network, referred to in the proceedings as the Southern Loop Road, and the Northern Loop Road. The Southern Loop Road had been identified in joint reports of the traffic engineers in the Comiskey appeal as a link, whether by dedicated road or easements, between a signalised intersection on South Pine Road at Bunya Park Drive (giving access to the Comiskey land) and a similar intersection on South Pine Road at Eatons Crossing Road (involving use of the Council’s road)44. The Northern Loop Road would have provided access to South Pine Road at its intersection with the unformed part of Cribb Road, and at Eaton’s Crossing Road by means of the 38 RJ [152]. 39 RJ [143]. 40 RJ [144]. 41 RJ [145]. 42 RJ [146]-[148]. 43 RJ [149]. 44 See RJ [60]-[61]. -- 9 of 47 -- 10 Council’s road45. Much of the Northern Loop Road would appear to coincide with what was referred to in the Council’s development application for the Murphy land as Access A. [26] The learned Member considered each of these alternatives in turn. In relation to the Southern Loop Road, the learned Member noted the resolution of the Council’s Co- ordination Committee of 8 November 2011, recommending that the Council resolve that it did not agree to the gazettal of its road as a public road, “or having connections to it from (the Comiskey land) or other adjacent land”46. The learned Member did not refer to evidence that the Council adopted the recommendation of the Co-ordination Committee, but it was treated in these proceedings as reflecting the attitude of the Council. Judge Jones acted on it when giving directions on 28 February 201247. The learned Member regarded this as a “powerful consideration” when considering the weight that a potential purchaser would give to the prospect of obtaining access by means of the Southern Loop Road. He expressed the view that the resolution of 8 November 2011 would be seen “as requiring the purchaser to proceed on the basis that (the Council) will not allow its privately held land to be used for a development on the subject land or in any way in aid of that”48. [27] The learned Member also referred to the recording in the Notice of Appeal relating to the hotel and motel on the Comiskey land, of the Council’s concern that a connection of this kind “will encourage rat-running and potentially higher traffic volume at the South Pine Road/Bunya Park Drive intersection”49, a concern recorded in a chronology prepared by a traffic engineer, Mr Beard50. He referred to evidence of Mr Beard that night time security of the sporting complex was assisted by the ability to have a gate on the private road, intended to prevent rat-running51; to the fact that the Council had received complaints that the road (it would appear to be the road to the north of the SPSC) was 45 RJ [34]. 46 RJ [28]. 47 RJ [30]. 48 RJ [66]. 49 RJ [69]. 50 RJ [82]. 51 RJ [88]. -- 10 of 47 -- 11 being used at night and weekends for drag racing; and to incidents of vandalism and theft at the SPSC52. [28] The learned Member then went on to consider the prospect of obtaining access to the land by the Northern Loop Road. In this context, his Honour seemed to have considered some matters relevant only to the Southern Loop Road, as well some relevant to the Northern Loop Road. For example, he referred to difficulties associated with a loop road on the Comiskey Land53. However, he also referred to the attitude of the Council, discussed earlier, to the use of its road, considering that the property requirements for the loop road were, as stated by Judge Jones, beyond the jurisdiction of the Planning and Environment Court, the land being held in private ownership54. His Honour also referred to the cost of upgrading the road, and other necessary road works55, including significant costs associated with traffic lights on Cribb Road (north of the Murphy land)56. [29] His Honour then stated that “(a) traffic planning solution would require the agreement of (the Council), the Comiskeys and the Department of Transport and Main Roads”57. He again referred to the fact that the Council could not be required by the Planning and Environment Court to allow access over its road58. [30] After this discussion, his Honour said59, “[i]t is not able to be said that simply because (the Council) is subject to the Sustainable Planning Act 2009 it would have imposed a condition on itself to allow access to (Caseldan’s) land. It remained a land owner with the rights it had exercised in the Comiskey appeal. If this was not seen as an absolute block then the other considerations which have been discussed are operative.” [31] These other considerations were his Honour’s conclusion that prospects of cooperation from Comiskey were very low; the potential expense of roadworks; and the likely lengthy delay for traffic upgrades to be carried out other than at the expense of a developer. This reasoning led the learned Member to conclude that a hypothetical prudent purchaser 52 RJ [90]. 53 RJ [101]-[104]. 54 RJ [98]-[99]. 55 RJ [105]. 56 RJ [110]. 57 RJ [113]. 58 RJ [115]. 59 RJ [116]. -- 11 of 47 -- 12 would think that there were very low prospects of obtaining appropriate access for a mixed use development of the land. [32] Caseldan’s alternative case that the land should be valued by reference to its potential use for sporting fields was based on the report of the valuer called in its case, Mr Rabbitt. The learned Member rejected this approach, primarily because Mr Rabbitt did not take into account the costs of earthworks for such a development of the land, described as “a major matter” and “a very important aspect”; and to a lesser extent it would seem, because he did not take account of the relatively low power lines which crossed the land60. [33] The learned Member also concluded that offers by the owners of the Comiskey land could not be regarded as genuine offers representing a proper indication of value61. The offer by Flaskas Pty Ltd was made by an entity wanting also to buy what became the Comiskey land, which the then owner was not prepared to sell62. However, his Honour ultimately gave no weight to the Flaskas offer because it was made in 2005; and to other offers because they were conditional63. Submissions on appeal [34] The submissions for Caseldan focused on the conclusions of the learned Member as to the prospect of obtaining suitable access to the external road system for a mixed use development on the resumed land. They contended that the learned Member fell into a number of errors in respect of each of the Northern Loop Road and the Southern Loop Road, vitiating his ultimate conclusion. [35] With respect to the Northern Loop Road, the first alleged error was the learned Member’s statement that the hypothetical prudent purchaser (at the date of resumption) “would know that the original Comiskey supermarket proposal was unsuccessful due to the absence of an appropriate traffic solution”64, when the appeal relating to that development proposal was not dismissed until 15 November 2012, after the resumption65. The 60 RJ [211]-[218]. 61 RJ [205]. 62 RJ [202]. 63 RJ [205]. 64 RJ [99]. 65 See 7 AR 1346; Appellant’s Outline of Argument (AOA) para 16. -- 12 of 47 -- 13 second66 was the reliance of the learned Member, when dealing with the Northern Loop Road, on the fact that Comiskey “agreed ultimately to a smaller development rather than agree to a traffic master plan”67, a position reached well after the resumption. The third contention was that each of these matters was irrelevant to the Northern Loop Road68. The fourth error69 was the learned Member’s statement that the hypothetical prudent purchaser would have known by virtue of the February 2012 reasons of Judge Jones, “that some of the property requirements associated with the loop road are beyond the jurisdiction of the Planning and Environment Court as it involves land held in private ownership”70; it being contended that the Planning and Environment Court had jurisdiction to impose a condition requiring the Council to provide public access over its road in respect of the proposed development of the Murphy land; and it was also contended that the statement, if correct, had no relevance to the Northern Loop Road. [36] Towards the conclusion of his discussion of the Northern Loop Road, the learned Member stated that if the Council’s exercise of its rights as land owner in respect of its road were “not seen as an absolute block then the other considerations which have been discussed are operative”71. For Caseldan it was submitted that the learned Member erred in a number of respects insofar as he relied on these other considerations72. One consideration was that “[t]here is no reason to assess the prospects of Comiskey cooperating as other than very low and potentially expensive”73. It was submitted that the co-operation of Comiskey was irrelevant to the Northern Loop Road. Another matter relied on by the learned Member was that the “requirements of the Department of Transport and Main Roads would be likely to be very expensive”74. It was contended that, while upgrades on South Pine Road would have involved not insignificant expense, that was not a proper basis to conclude that the prospects of obtaining access were “very low”. A third matter relied upon by the learned Member was that the Council “… in view of its attitude is unlikely to be willing to bear much expense” for traffic upgrading75. It was submitted 66 AOA para 16. 67 RJ [101]. 68 AOA para 16. 69 AOA para 17. 70 RJ [99]. 71 RJ [116]. 72 AOA paras 22-25. 73 RJ [116]. 74 RJ [116]. 75 RJ [116]. -- 13 of 47 -- 14 that this was irrelevant, the proper consideration being that the Council was likely to be subjected to reasonable and relevant conditions relating to contributions for road improvements. [37] With respect to the learned Member’s treatment of the Southern Loop Road, it was submitted that his Honour had erred in a number of respects in reaching his finding relating to this option. First, it was contended that he ignored the offer made by Comiskey on 21 August 2011 to accept a condition for the loop road76. It was next contended that the Council’s concerns relating to rat-running, safety and security did not relate to the Southern Loop Road77, and in particular the Council’s road. There was no evidence to demonstrate proper planning (including traffic planning) grounds for not making the Council road available as part of the Southern Loop Road, a proposal supported by all of the traffic engineers in the Comiskey appeal78, particularly when the evidence showed that the Council’s objection was related to its concerns about “compensation impacts” for “recently resumed land”79. It was contended that the learned Member erred in not finding that the Council had changed its position in relation to this option80. It was further contended that the learned Member erred in finding that the Council’s opposition to the Southern Loop Road was “not part of a scheme to, or steps taken to, resume the land”81. [38] It was submitted that the learned Member’s findings as to the prospect of obtaining a planning approval were erroneous, by reason of the errors relating to his assessment of the prospects of obtaining access to the resumed land. It was also submitted that the learned Member erred in holding82 that Caseldan had to show “that a particular proposed development, rather than something in the general nature of the Ovenden Plan was supported by proper grounds”83. It was also submitted that, notwithstanding the reference to the planning grounds relied upon by Caseldan as supporting the approval for a mixed use development, the learned Member failed to give consideration to them84. 76 12 AB 2354. 77 AOA para 29. 78 AOA para 32. 79 6 AR 1269. 80 AOA para 36. 81 AOA para 37. 82 See RJ [142]. 83 AOA para 40. 84 AOA para 42; T 2-18 to 2-19. -- 14 of 47 -- 15 [39] Caseldan also submitted that the learned Member erred in failing to give weight to the offers made to purchase the resumed land. The genuineness of the offers was not disputed at the hearing. They demonstrated a lower limit for the value of the land of about $4 million85. The learned Member erred in rejecting offers from 2005 because of their remoteness in time86, when the valuation evidence showed that the market “had not shifted significantly” since this time, and the learned Member had accepted the valuation evidence of Mr Gillespie, which in turn was based on a sale from July 200587. It was erroneous of the learned Member to reject offers from Comiskey88 because of the motivation for the offers; and the learned Member erred in treating the offers by Comiskey as not being genuine, because they were described as “speculative"89. It was submitted that the learned Member erred in rejecting the evidence of Mr Rabbitt on the basis that he failed to allow for the risk in getting access, and the risk in getting a planning approval, when Mr Rabbitt had recognised such risks, and allowed for them in his applied rate90. Mr Gillespie erred in discounting his rate to $100,000 per hectare in respect of 1.3 hectares of the resumed land on account of the power easement; when the applied sale of the Comiskey land was similarly affected91. His further reduction of 50 per cent for “upgrade of intersections” was not justified, because similar upgrades would be required for the development of the Murphy land and the Comiskey land, the sales of which were applied by Mr Gillespie92; and in any event the most likely purchaser of the land (but for the resumption) was Comiskey, who could make access to the land available through its adjoining land93. [40] It was also submitted on behalf of Caseldan that the learned Member made a number of errors in rejecting Mr Rabbitt’s alternative approach, which was to value the resumed land by reference to its potential use for sporting fields. It was submitted that he wrongly held that Mr Rabbitt failed to take into account the need for, and potential cost of, earthworks for this use94, when Mr Rabbitt had taken this into account but weighed it 85 T 2-15. 86 See RJ [205]. 87 AOA para 55. 88 RJ [205]. 89 RJ [205]; AOA para 52. 90 AOA para 62. 91 AOA para 65. 92 AOA para 66. 93 AOA para 67. 94 AOA para 71. -- 15 of 47 -- 16 against the fact that the resumed land was largely flood free, had superior improvements, and had some commercial potential close to South Pine Road. The learned Member also wrongly rejected Mr Rabbitt’s reliance on the sale of land at 73 Terrigal Street, Fig Tree Pocket, formerly the sports grounds for Marist Brothers College, Rosalie (Rosalie sports grounds), because he wrongly considered that Mr Rabbitt had overlooked the potential for boundary realignment within this property for the on-sale of a part of it designated as Emerging Communities95. It was submitted that the learned Member erred in characterising Mr Rabbitt’s position as not having any difficulty with the sales relied upon by Mr Gillespie; when Mr Rabbitt considered that these were useful only in establishing the value of the land as a golf course, and that this approach did not take into account the broader market96. It was also submitted that the learned Member failed adequately to articulate his reasons for preferring Mr Gillespie’s valuation methodology97. [41] For the Council, it was submitted that there was evidence to support the finding of the learned Member that the hypothetical prudent purchaser at the date of resumption would have considered the likelihood of obtaining appropriate access to the resumed land as being very low, and to be achieved at a high cost98. The proposed northern loop was not sufficient to provide appropriate access99. The learned Member did not err in his consideration of the requirement to show need as a planning ground to overcome conflict between the mixed use development and the planning scheme; he recognised that other planning grounds might also be relevant100. It was submitted that the learned Member realised that a condition could have been imposed on the Council in respect of the provision of access to the resumed land, as part of an approval of the SPSC; but recognised difficulties relating to the fact the land was owned by the Council, access would be expensive, and there was a risk of delay101. It was also submitted that the finding by the learned Member as to the attitude of Comiskey to the southern loop was open on the evidence102. 95 AOA para 73. 96 AOA para 75. 97 AOA para 77. 98 Respondent’s Outline of Submissions filed 23 March 2015 (ROS) para 8. 99 ROS para 9. 100 ROS paras 11-12. 101 ROS paras 13-14. 102 ROS paras 15-17. -- 16 of 47 -- 17 [42] For the Council it was further submitted that the finding of the learned Member that the Council had not withdrawn support previously provided for the Southern Loop Road was open and reasonable103. The learned Member did not err by concluding that it was necessary to show that a particular proposed development was supported by proper planning grounds, because planning grounds sufficient to overcome conflict with a scheme are to be judged on a case by case basis, having regard to a particular development proposal104. It was also submitted that the learned Member was correct to find that the planning scheme had not been overtaken by events105. [43] With respect to the offers to purchase the resumed land, it was submitted that Mr Rabbitt did not rely on them to determine market value; and accordingly it was unnecessary for the Council to challenge the genuineness of these offers, as the onus remained on Caseldan to establish that they were genuine106. It was open for the learned Member to reject them, in favour of comparable sales107. It was submitted that the learned Member was entitled to disregard the Comiskey offers, the last of which was made in 2009, when in November 2010 Comiskey (through Comsuper Pty Ltd) initiated proceedings against Caseldan108. It was submitted that the valuation of Mr Rabbitt did not sufficiently allow for the risk of not obtaining access, and not obtaining a planning approval109. It was also submitted for the Council that the criticisms made by Caseldan of Mr Gillespie’s valuation, which Caseldan contended had not been addressed by the learned Member, were not material to the evidence, and were not justified110. It was submitted orally that differences between the resumed land, the Comiskey land and the Murphy land meant the resumed land was significantly inferior111. [44] With respect to the contention for Caseldan that the Council’s opposition to the use of its land to provide access to the resumed land was part of the “scheme of the resumption”, it was submitted that the evidence demonstrated that the Council had been opposed to providing such access, well before it decided to resume Caseldan’s land. 103 ROS paras 18-21. 104 ROS para 25. 105 ROS para 25. 106 ROS paras 29-30. 107 ROS para 31. 108 ROS para 33. 109 ROS para 36. 110 ROS para 39-40. 111 T 2-46 to 2-53. -- 17 of 47 -- 18 [45] With respect to the valuation of the land on the basis of its potential use for sports fields, it was submitted that the learned Member was correct to reject Mr Rabbitt’s valuation, because of the extensive and uncosted earthworks which would be required112. It was further submitted that the learned Member was correct to criticise Mr Rabbitt’s comparison between the site and the Rosalie sports ground, because of the potential for the latter to be subdivided113. The learned Member did not err in his appreciation of Mr Rabbitt’s views about the sales used by Mr Gillespie; nor in concluding that Mr Gillespie’s valuation should be accepted114. [46] Before dealing with more substantive issues, it is convenient to deal with two matters. The first is a piece of evidence on which the learned Member placed some reliance. The second is Caseldan’s submission that Council’s opposition to the use of its road for access development on the resumed land was part of “a scheme to, or steps taken to, resume the land”115. Document DG-24 [47] Document DG-24116 is an undated document marked “WITHOUT PREJUDICE” and addressed to “Paul and Robert”. It is unsigned, though at the end the initials JR appear. It was disclosed by the Council to Caseldan, by the production of a copy, but without further identification117. It was introduced as part of Ms George’s evidence, to show Comiskey’s intention to make an offer of $7 million for the resumed land, with a view to preventing the resumption proceeding118. It was relied upon by Counsel for the Council in the cross-examination of Mr Beard, the cross-examiner suggesting that the author had been the Council’s Chief Executive Officer119. It was also referred to in Exhibit 42, an agreed chronology, where the document was described as a “draft letter from Council’s CEO to Comiskey”, the date being February 2012120; and in Caseldan’s chronology 112 ROS paras 42-45. 113 ROS para 46. 114 ROS paras 47-49. 115 See AOA para 37. 116 See 11 AR 2228. 117 See T 2-9; 3-9. 118 10 AR 1880. 119 1 AR 65. 120 12 AR 2434. -- 18 of 47 -- 19 (Exhibit 37)121. It was also relied upon in Exhibit 10A, a summary of the Council’s expression of opposition to a loop road122. The document appears to be addressed to members of the Comiskey family. [48] It is convenient to record two passages from this document. The first is123, “I understand the option for a loop road connecting to Council’s South Pine Sporting complex was initially put forward by your traffic consultant. The other traffic consultants including DTMR have continued the debate around that option. Again I repeat Council has no interest in a loop road from your property through to the access way for the South Pine Sporting complex. The Council’s traffic expert and its legal team have been reminded of that point and I am astounded that it is still being considered by any of the traffic experts. I will take action today to restate and reinforce Council’s position.” [49] The second is124, “You stated on Saturday during our telephone conversation that you intended to offer Dawn George $7M for her property and that you were confident she would accept that offer. I stated that the Council had placed a resumption order over the Dawn George property. I would need to take legal advice on what steps Council would need to take if you were successful in purchasing the property for the $7M you stated. I assume Council would simply withdraw its resumption order. In earlier without prejudice conversations, you have indicated that your only interest in the Dawn George property was to control the activity on the site and errant golf balls that came on to your property and endanger your clientele. You had indicated your earlier offer of $4M for the property was merely speculative and that Dawn George had rejected that offer. You have previously stated you had no interest in acquiring the land but had now stated to me that it would be a tactical move on your part to acquire it for $7M and spoil the Council’s aim of securing the land to complement the range of activities provided at the South Pine Sporting complex.” [50] The document was admitted without objection, and, as has been noted, was relied upon by both parties. In any event, the Land Court was not bound by the rules of evidence125. Accordingly, the learned Member was entitled to take its contents into account. Nevertheless, its true effect and weight will require further consideration. 121 12 AR 2474. 122 12 AR 2302. 123 11 AR 2231. 124 11 AR 2231. 125 See s 7 of the Land Court Act 2000 (Qld) (LC Act). -- 19 of 47 -- 20 [51] In the course of argument a question arose as to whether its weight should be affected by the penultimate paragraph, which is open to being construed as an offer of greater co- operation than would be proper by the Council with a developer-applicant. Since that construction is not particularly clear, and the author of the document was not cross- examined, this consideration should be ignored. Council’s opposition to the use of its road and the scheme to resume the land [52] The evidentiary basis for Caseldan’s submission on this topic commences with the position taken by Mr Douglas in the Comiskey appeal in 2011. In a joint report of traffic engineers dated 5 April 2011, Mr Douglas agreed that a loop road linking the intersections on South Pine Road at Bunya Park Drive and Eatons Crossing Road would have advantages for the road system (including the operation of these two intersections); and if the adjacent land to the north was to be developed for commercial/related purposes in the future, it would be appropriate to provide a satisfactory connection between these two intersections (consistent with the loop road). Mr Douglas also expressed the view that, for the Comiskey development to be approved, it was reasonable to “seek to establish, or at least not prejudice, connections between adjoining properties, such that they could be developed in an orderly manner”126. In a subsequent joint report dated 6 July 2011, Mr Douglas expressed the view127 that satisfactory upgrading works for the Comiskey shopping centre “should be seen as a stage in the development of an overall traffic structure plan for this precinct which takes account of all potential development areas, including those on (the Comiskey land)”. He was one of those who suggested that Comiskey should produce “a concept master plan or traffic structure plan which demonstrates that (the Comiskey shopping centre development) does not prejudice the future development of an overall traffic management plan for the precinct”; and agreed that a loop road would enable the most efficient usage of the intersections at Eatons Crossing Road and Bunya Park Road, and provide other improvements to the traffic system128 (though he recorded his understanding that the Council was not in favour of dedication of part of its road). He was the primary author of a draft structure plan which showed a conceptual version for the Southern Loop Road129 126 4 AR 823-824. 127 4 AR 834. 128 4 AR 835-836. 129 6 AR 1067, 1146-1150; 3 AR 541. -- 20 of 47 -- 21 [53] In his report dated 11 August 2011, Mr Douglas expressed the view that if a retail or commercial node were to emerge on the eastern side of South Pine Road, a fully considered “structure plan or at least a traffic master plan aimed at creating an integrated centre” was required. The Comiskey proposal, in its then current form, without provision for some form of access to the land at the north, made it likely “that the potential to develop an integrated traffic and pedestrian network will have been lost”130; and if the development were to be approved, then the development’s integration with its surrounds would need to be resolved131. [54] Reference has previously been made to the resolution of the Council’s Co-ordination Committee of 8 November 2011132. [55] The meeting of the traffic experts on 20 January 2012, and the resulting joint report dated 1 February 2012 show that Mr Douglas continued to recognise the benefits of a master plan. [56] Reliance was also placed by Caseldan on an email dated 11 October 2012133 from an officer of the Department of Transport and Main Roads, recording the Council’s objection to a loop road for the Comiskey shopping centre, due to impacts on open space, the Council having resumed land for this purpose, and associated compensation impacts for the recently resumed land. [57] The legal foundation for Caseldan’s submission is the proposition that a diminution in the value of the resumed land which is a result of the resumption process should not be taken into account in the assessment of its value for the purpose of determining compensation. That proposition finds support in statements made in some earlier cases. One is that of Kirby P in Haig v Minister Administering the National Parks and Wildlife Act 1974134 where his Honour said, “Any diminution in the value of land which is entirely due to the resumption scheme, or to any blight caused by a step in the resumption process, is to be disregarded in determining the value of the land …” 130 5 AR 907. 131 5 AR 908. 132 6 AR 1179. 133 6 AR 1269. 134 (1994) 85 LGERA 143, 149-150. -- 21 of 47 -- 22 [58] To somewhat similar effect is a statement by Dixon J in Nelungaloo Pty Ltd v Commonwealth & Ors135, “As the object is to find the money equivalent for the loss or, in other words, the pecuniary value to the owner contained in the asset, it cannot be less than the money value into which he might have converted his property had the law not deprived him of it. You do not given him any enhanced value that may attach to his property because it has been compulsorily acquired by the governmental authority for its purposes … Equally you exclude any diminution of value arising from the same cause.” [59] The legal proposition referred to earlier was not disputed by the Council, and it seems appropriate to accept that it is correct. [60] Exhibit 10A136 set out matters on which the Council relied for the proposition that it had been opposed to the use of its road for access to the subject site. Its accuracy was not challenged; nor was it said that the attitudes of the persons referred to could not be attributed to the Council. In the course of oral submissions, Senior Counsel for Caseldan was unable to identify evidence which demonstrated that in the period prior to its decision to resume the land, the Council was not opposed to the use of its road for access to Caseldan’s land137. The evidence shows that, by the resumption date, there was a history demonstrating the Council’s opposition to the use of its road as a means of access to development on the Caseldan land, not shown to be associated with a decision to resume the land. While a desire to reduce the amount of compensation may have provided an additional reason for its continuing opposition to the use of its road for such access, it does not demonstrate that the opposition was the product of the decision to resume the land. The views of Mr Douglas appear to be his own views as a traffic engineer. There is no evidence to show that they reflected the views of the Council; nor in expressing those views can it be said he was acting as the Council’s agent, so as to bind it. It follows that the opposition of the Council to the use of its road as a means of access to the resumed land is a matter relevant to the assessment of compensation. 135 (1948) 75 CLR 495, 571-572. 136 12 AR 2301. 137 T1-53 to 1-56. -- 22 of 47 -- 23 Relevance of offers [61] The learned Member correctly referred to statements of principle dealing with the use of offers in determining the value of resumed property. Of some assistance is that from the decision in Heavey Lex No. 64 Pty Ltd v Chief Executive, Department of Transport138, where this Court adopted a passage from the judgment of Wilcox J in Goold v Commonwealth139 which included the following, “But it seems to me that, once the court is satisfied about the genuineness (of an offer), an offer by an arm’s length party to purchase the land under valuation is something that the judicial valuer ought to take into account in considering the possibility of a sale at a price different from that indicated by conventional evidence, such as an analysis of comparable sales, or of a hypothetical development, or a calculation of the capitalised value of the rental return. How much weight should be given to such an offer is a question to be determined by reference to the facts of the particular case. In some cases, the appropriate weight may be minimal; in others considerable”. [62] The judgment of Wilcox J was also the subject of approving consideration by Spigelman CJ in MMAL Rentals Pty Ltd v Bruning140. After reference to the discussion by Wilcox J of an offer as evidence that a particular purchaser might have a special interest in the land and accordingly pay more than what might otherwise be its market value, Spigelman CJ said141, “As Wilcox J concluded in Goold142, in a context in which a particular purchaser was willing to pay more than the market value: ‘… it would be anomalous and unjust for the courts to adopt a blanket rule excluding offer evidence. Such a rule might exclude cogent evidence of the interest of a particular purchaser in the land being valued, a person who was willing to pay more than the ordinary market price’. In my opinion, an offer by such a purchaser is not only relevant it is highly probative. Indeed, whilst allowing for the possibility of further bargaining, it is difficult to conceive what better evidence there could be. Expert evidence may establish that such an offer is inadequate but, unless there are special considerations, the offer clearly establishes a floor.” [63] The other Members of the Court in MMAL (Mason P and Hodgson JA) agreed with Spigelman CJ. The reference by Spigelman CJ to the evidence establishing a “floor” for 138 (2001) 22 QLCR 177, 181-182. 139 (1993) 42 FCR 51, 60 (Goold). 140 (2004) 63 NSWLR 167 at [86]-[98] (MMAL). 141 In MMAL at [96]-[97]. 142 At [59]-[60]. -- 23 of 47 -- 24 the value of the land echoes in part a statement of Buss JA (with whom Miller JA agreed) in Auxil Pty Ltd & Anor v Terranova & Ors143. After a careful and extensive review of the authorities, his Honour said144, “[45] Several propositions in relation to proof of the value of land are discernible from my review of the authorities. [46] First, the general rule of admissibility is that an unaccepted offer to purchase land is not admissible as ‘direct evidence’ of its value. [47] Secondly, the general rule does not exclude evidence of an unaccepted offer in each and every case. [48] Thirdly, where evidence of an unaccepted offer to purchase land is sought to be tendered, the purpose for which the tender is made should be ascertained and analysed. [49] Fourthly, although an unaccepted offer to purchase land is not admissible as ‘direct evidence’ of its value, the evidence may be admissible, in a particular case, for limited or general purposes. [50] Fifthly, the limited or general purposes for which evidence of an unaccepted offer may be admissible include establishing: (a) that later sales sought to be relied on in assessing the value of the land were not forced sales; (b) the existence of a person who might be prepared to pay more than the ordinary market value of the land; (c) the demand in the market for the land in the context of evaluating whether a mortgagee of the land breached its duty of good faith in exercising its power of sale; (d) the special potentiality of the land for a specific purchaser where the offer has been made by that purchaser and in respect of that land. Also, an unaccepted offer to purchase land may be admissible for the general purpose of providing some assistance in determining the lower limit of the market value of the land in the case of a purchaser’s actual unconditional open offer to purchase at a specific price or for the limited purpose of checking the methodology adopted by an expert valuer in his or her evidence. The illustrations I have given are not, of course, intended to be exhaustive. [51] Sixthly, evidence of an unaccepted offer to purchase land should not, ordinarily, be accorded any weight unless the trial judge has found that the offer was genuine. Factors to be considered in evaluating the genuineness of an offer include, for example, 143 (2009) 260 ALR 164 at [50] (Auxil). 144 Auxil at [45] to [51]. -- 24 of 47 -- 25 whether the purchaser was willing and able to complete the purchase in accordance with the terms of the offer, whether the purchaser was at arm’s length from the vendor, and why the offer was not accepted.” [64] There are accordingly a number of decisions of superior courts at appellate level in this country which do not accept McDonald v Deputy Federal Commissioner of Land Tax (NSW)145 and single judge decisions in the High Court, James Patrick & Co Pty Ltd v Minister of State for the Navy146, Nelungaloo Pty Ltd v Commonwealth147 and Gregory & Anor v Commissioner of Taxation of the Commonwealth of Australia148 as authoritatively establishing that an offer to purchase the land to be valued may never be used in the determination of its value. On one view, the decision in McDonald is confined to the test for value for which provision was made in the Land Tax Assessment Act 1910 (Cth), said by Isaacs J in McDonald to be “the price which a willing buyer would give”149, on the assumption that the vendor stipulated reasonable conditions150. As Spigelman CJ pointed out in MMAL151, support for this approach is to be found in the fact that the offer considered in McDonald was an offer by a potential vendor, not a potential purchaser. [65] On another view, the effect of McDonald is to prevent the use of an unaccepted offer to purchase land as “direct evidence” of its value152; though this proposition does not enjoy complete support153. Even if evidence of an offer is not admissible as “direct evidence” of the value of the land, it is admissible to establish the existence of a person who might be prepared to pay more than its ordinary market value, or the special potentiality of the land for a specific purchaser who has made the offer154. It is also admissible to provide some assistance in determining the lower limit of the market value of the land155. 145 (1915) 20 CLR 231 (McDonald). 146 [1944] ALR 254. 147 (1948) 75 CLR 495. 148 (1971) 123 CLR 547. 149 McDonald at 237. 150 See MMAL at [88]-[90]. 151 At [88]. 152 See Goold at 59; Auxil at [26]; Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48 at [128]. 153 See Chen v Karandonis [2002] NSWCA 412 at [72]-[73]; and see MMAL at [ 98], and Baiyai Pty Ltd v Guy [2009] NSWCA 65 at [22]. 154 Auxil at [50]. 155 Auxil at [50]. -- 25 of 47 -- 26 Were the offers genuine? [66] The learned Member recorded that the Council had not challenged the genuineness of the offers relied upon by Caseldan156. That seems to reflect the way the Council’s case on this issue was in general conducted, Senior Counsel for the Council stating on the appeal157, “it wasn’t our job to deal with the genuineness of the offers”. Nevertheless, on two occasions in the closing address in the Land Court, Senior Counsel for the Council submitted that the Court would need to be satisfied about the genuineness of the offers by evidence adduced in the case158. The submissions relating to the genuineness of the offers went no further than pointing out that the persons who made them had not given evidence. [67] Caseldan had relied upon offers made by Comiskey on 10 August 2006, 16 August 2006 and 12 January 2009, each unconditional, with an effective price ranging from $4 million to $4.5 million159. The learned Member found these offers not to be genuine, relying on document DG-24. His Honour said that the document “provides evidence that the offers by the Comiskeys could not be regarded as genuine offers representing a proper indication of value but were motivated by golf balls coming on to the Comiskey land and a desire to control activity on the site as well as a tactic being used against the Council. The offer of $4 million was described as ‘merely speculative’.”160 [68] The reasoning of the learned Member went beyond the submission advanced on behalf of the Council, which, at its highest, was a submission that the evidence was insufficient to establish that any of the offers was genuine. There are difficulties in permitting the learned Member’s finding to stand, when Caseldan was not given the opportunity to deal with the proposition that Document DG-24 demonstrated that the earlier offers by Comiskey were not genuine. In any event, there are difficulties in reaching such a conclusion. [69] One difficulty with the learned Member’s reasoning is his statement that the offers were “a tactic being used against the Council”. Nothing in the document suggested this to be 156 RJ [204]. 157 T 2-78. 158 See Exhibit 2 in the appeal, T 8-20 L40, 8-79 L25. 159 RJ [197]. 160 RJ [205]. -- 26 of 47 -- 27 the case. The statement in the document referred to an intended offer of $7 million, not in fact made, and not relied upon by Caseldan as an offer. [70] Comiskey purchased the land adjoining the Caseldan land in August 2006161. It was plainly purchased with a view to its further development. There were obvious advantages to Comiskey in purchasing the resumed land as well. [71] Evidence of the offers by Comiskey was given by Ms George162. The circumstances as recounted by Ms George point rather strongly to a genuine interest on the part of Comiskey in purchasing the Caseldan land at any of the prices nominated. Thus Comiskey made the initial approach to Ms George through a solicitor representing Caseldan and who had in other matters represented Comiskey. A meeting was arranged, attended by three members of the Comiskey family. Some weeks after the meeting, Mr Rob Comiskey contacted Mr George and made an offer, saying that he, in Ms George’s words, “wanted us to consider their offer”163. [72] When the first offer was rejected, Mr Comiskey requested a further meeting. That meeting took place seven days later; and was attended by two members of the Comiskey family, and their accountant. The price offered was $4.2 million, together with the rights to operate the golf course for three years, which Mr Paul Comiskey said was worth $100,000 per year, making the offer equivalent to $4.5 million. He identified the offer as a standard 30 day contract, not subject to development approvals or special condition164. The offer was rejected two days after the meeting. [73] While not of assistance in determining the value of the resumed land, in December 2006 Mr Rob Comiskey made a further offer to purchase “the top south eastern section of the golf course land”, apparently immediately south of the Comiskey land, for $1 million165. This evidence demonstrates a genuine interest on the part of Comiskey in the Caseldan land. 161 See 3 AR 585. 162 10 AR 1866-1867, 1871. 163 10 AR 1867. 164 10 AR 1867. 165 10 AR 1868. -- 27 of 47 -- 28 [74] The third offer was made on 12 January 2009 by Mr Rob Comiskey, in an amount of $4.5 million. Mr Comiskey suggested that Mr and Mrs George might wish to reconsider the offer due to the “global financial crisis”. Mr Comiskey also said he was aware of the other offers that had been made for the land, but his offer was unconditional, and not dependant on any special conditions166. [75] The statements made by members of the Comiskey family recorded in the unchallenged evidence of Ms George reflect a genuine interest on the part of Comiskey in purchasing the land then owned by Caseldan, at the prices and on the terms stated. They are consistent with the fact that Comiskey owned, and was in the course of developing, the adjoining land. These matters should have been, but were not, considered by the learned Member when determining whether the Comiskey offers were genuine. [76] The statement in Document DG-24, “you had indicated your earlier offer of $4M for the property was merely speculative and that Dawn George had rejected that offer” on its face refers to only one of the three offers. It may be doubted whether it accurately reflects what had been said by any member of the Comiskey family in describing the intent of the offer; and if the word “speculative” was used, the context rather suggests that it was speculative in the sense that it was hoped, but not expected, that the offer would be accepted. [77] Some further doubt about the accuracy of the document is apparent from the fact that it records that “you have previously stated you had no interest in acquiring (the Caseldan land) …”, but also records “… you have indicated that your only interest in the Dawn George property was to control the activity on the site and the errant golf balls that come on to your property and endanger your clientele …”. Moreover, a statement that the only interest of Comiskey in the land previously owned by Caseldan was to control activity on the site and prevent errant golf balls from coming on to the Comiskey property seems unlikely to be true. It is particularly inconsistent with the offer to purchase only a small part of the golf course. [78] The learned Member’s conclusion on the question whether the Comiskey offers were genuine was based entirely on this document. In considering the effect of the document, 166 10 AR 1871. -- 28 of 47 -- 29 this Court is as well placed as was the learned Member. His failure to take into account the evidence of Ms George in relation to the offers is of some significance. A proper conclusion to be reached on the whole of the evidence is that Comiskey genuinely intended on each occasion to purchase the land for the price stated, had any of the offers been accepted. [79] The Comsuper proceedings167 do not lead to a different conclusion. Comsuper sued Caseldan in nuisance, alleging loss resulting from the entry of errant golf balls onto the Comiskey land. Caseldan conterclaimed, alleging loss as a result of stormwater running onto its land from the Comiskey land. If Comiskey were to purchase the Caseldan land, it would have control of the activities on that land, and would not be at risk of future claims relating to the runoff of stormwater. Relevance of offers in present case [80] Of the nine offers referred to by the learned Member168, five were conditional, usually on obtaining a development approval. The utility of such offers in the determination of market value at the date of resumption is inevitably quite limited. Nevertheless, they demonstrate an interest by developers in acquiring the resumed land for more intense development. Since contracts resulting from such offers commonly impose an obligation on the purchaser to pursue a development application, which inevitably involves some substantial expenditure, it cannot be said that a contract resulting from such an offer is entirely without risk for the purchaser. Nevertheless, the purchaser is not placed at the risk of paying the nominated purchase price without obtaining a development approval. The most that can be said about such offers is that they demonstrate, in addition to interest in the land for more intense development, sufficient confidence on the part of the offeror in the prospect of obtaining a development approval that the offeror is prepared to undertake the expenditure involved in making and pursuing a development application. [81] Ms George gave evidence that when the Flaskas offer was made, its representative said that Flaskas wanted to purchase both the Caseldan land and what subsequently became the Comiskey land169. However, in her oral evidence she said that the contract provided 167 See 10 AR 2024. 168 RJ [197]. 169 10 AR 1865. -- 29 of 47 -- 30 on behalf of Flaskas in connection with the offer was unconditional170, evidence not challenged in her cross-examination171. The evidence of Ms George was referred to, but not rejected, by the learned Member172. The learned Member stated that the offer “must be appreciated in the context explained by Ms George”. It was an unconditional offer to purchase the land then owned by Caseldan for $3.69 million. The context which appears in Ms George’s evidence does not warrant a conclusion that the offer should be disregarded. [82] The learned Member appears to have given no weight to the Flaskas offer because it was made in 2005, when there was evidence of comparable sales173. As was submitted on behalf of Caseldan, the valuation evidence showed that the market had not shifted significantly since the Comiskey purchase in August 2006174. One of the sales relied upon by Mr Gillespie for valuing the resumed land as a golf course was a sale from July 2005175. It might also be noted that, for his valuation on the basis of a mixed use development, Mr Gillespie (like Mr Rabbitt) relied on the Comiskey purchase in August 2006. In the circumstances, the passage of time did not provide a proper basis for disregarding the Flaskas offer. [83] Nevertheless, the passage of time is not without some relevance. Thus when offers were made in 2005 and 2006, the land on the east side of South Pine Road was both in its use and by planning controls committed to sport and recreation purposes. By the date of the resumption, as Judge Jones described it, there was “a node of existing and proposed mixed commercial uses” on the eastern side of South Pine Road176. Evidence of the Council’s opposition to the use of its road for access to the land goes back to February 2007177. This opposition may have been of less significance to Comiskey, once it purchased the adjoining land. It is likely that difficulties associated with the intersections on South Pine Road would have been appreciated throughout the relevant period, though the extent of those difficulties may have become more apparent with the passage of time. On the other 170 2 AR 206-207. 171 2 AR 209-210. 172 RJ [202]. 173 RJ [205]. 174 3 AR 588. 175 3 AR 583. 176 6 AR 1163. 177 12 AR 2301. -- 30 of 47 -- 31 hand, as discussed later in these reasons, the Council’s development application, together with a recognition of the advantages from a traffic engineering point of view of a traffic master plan for the eastern side of South Pine Road, may have provided some basis for optimism that a solution could have been achieved for the provision of access to development on the subject site. [84] The learned Member indicated, by reference to Phillipou & Anor v Housing Commission of Victoria178, that had he accepted that the Comiskey offers were genuine, he would have accepted the submissions made on behalf of Caseldan that such offers were relevant, and to be taken into account179. To that extent, he was correct. Once it is accepted that the offers are relevant in determining the market value of the resumed land, they can at least assist in identifying the lower limit of the market value of the land; and accordingly in considering whether the value determined by the learned Member is correct. They provide strong grounds for thinking that the value adopted by the learned Member was in error. Errors relating to highest and best use [85] Of primary significance to the learned Member’s rejection of Caseldan’s case for the highest and best use of the resumed land for a mixed used development, was his finding that the hypothetical prudent purchaser would have considered that the likelihood of obtaining appropriate access for such development was very low, and, if able to be achieved at all, to be expensive because of the need to “buy co-operation in addition to construction costs”180. The basis for this finding was that on the Council’s development application, a condition could not be imposed on it to permit access to the resumed land181; and if this were not an “absolute block”, then the prospect of obtaining co- operation from Comiskey was “very low and potentially expensive”; and the requirements of DTMR would be likely to be very expensive, with the Council unwilling to bear much expense182. There are a number of difficulties with this reasoning. 178 (1969) 18 LGRA 254. 179 RJ [206]. 180 RJ [145]. 181 RJ [116]; [99]. 182 RJ [116]. -- 31 of 47 -- 32 [86] The power to approve a development application is found in s 324 of the Sustainable Planning Act 2009 (QLD) (“SPA”), which includes a power to approve an application subject to conditions decided by the assessment manager. Moreover, the assessment manager must impose any condition required by a concurrence agency183. The Council’s development application identified DTMR as a concurrence agency184. Given that DTMR was responsible for South Pine Road, the question whether the Council’s road should be made available for access to it may not have fallen to the Council (as assessment manager) to decide. Moreover, the evidence showed that DTMR had been supportive of a loop road system since about 2009 (and up to the time of the resumption)185. [87] The power to impose a condition in respect of a development application such as that made by the Council for the expanded SPSC is regulated by s 345 of the SPA186. A condition must be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or it must be “reasonably required in relation to the development or use of premises as a consequence of the development”. [88] A similarly worded provision was considered by Rackemann DCJ in Intrapac Parkridge Pty Ltd v Logan City Council & anor187 (Intrapac), where his Honour said188, “There is, of course, no requirement for an assessment manager or, on appeal, the court to impose each and every condition which might pass one of the above tests. There is a relatively broad residual discretion as to what lawful conditions to impose on the approval at hand189. That discretion, whilst broad, must be exercised for a proper planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the relevant authority190. In the case of the SPA, the assessment manager’s decision, including a decision to approve subject to conditions, must be based on the assessment of the application under Division 2 of Part 5191. That includes assessment by reference to the planning scheme.” 183 See s 325 of the SPA. 184 7 AR 1396. 185 1 AR 12, 44. 186 See reprint 2. 187 [2014] QPEC 48. 188 Intrapac at [24]. 189 Australian Retirement Homes Ltd v Pine Rivers Shire Council [2009] QPEC 92. 190 Western Australian Planning Commission v Tamwood Holdings Pty Ltd (2004) 221 CLR 30 per McHugh J at para 70 and per Gummow and Hayne JJ at para 93. 191 Section 324(2). -- 32 of 47 -- 33 [89] It can at once be seen that conditions are to be determined by reference to what is “a proper planning purpose”. The rights and wishes of an individual land owner-applicant, as such, do not determine the proper exercise of the power. It might be observed that the conditions to be imposed by a concurrence agency are similarly regulated192. The issue in Intrapac was whether the developer should be required to dedicate and construct a road through its development site at an early stage of its proposed development, which would be of advantage to an adjoining land owner who was a party to its appeal. The position taken by the developer could have indefinitely delayed the development of adjoining land. A condition was imposed requiring the dedication of the whole of the road through the developer’s site as part of the first stage of the development. His Honour said193, “Moreover, having regarding to the provisions of the Planning Scheme, the approval ought make provision for appropriate infrastructure as well as links and relationships between Australand’s development and the surrounding area in a way which is consistent with the realisation of the development intentions for the area in accordance with the (Parkridge Structure Plan). Insofar as timing is concerned, the commencement of development in this area by Australand provides the opportunity for further orderly development to occur in a timely way.” [90] There are plainly factual differences between Intrapac and the circumstances relevant to the development of the SPSC. Nevertheless, the case demonstrates that, in appropriate circumstances, a land owner may, against its will, be required to make provision for a road, for the benefit of the potential development of adjoining land194. [91] The decision in Intrapac was relied upon by Caseldan. There was no submission that it was incorrectly decided. It follows that the learned Member erred in holding that the Council could not be required by the Planning and Environment Court to allow its road to be used for access to the resumed land195. [92] A number of matters were relied upon in support of the Council’s opposition to the use of its road as a means of access to the Caseldan land. These were said on behalf of the Council to be “sound planning reasons” for its stance196. One, referred to by the learned 192 See s 344. 193 Intrapac at [45]. 194 See also the evidence of Mr Beard at 1 AR 20. 195 See RJ [115]. 196 See RJ [85]. -- 33 of 47 -- 34 Member when considering the Southern Loop Road197, was the reported use of Cribb Road to the east of the northern entry of the SPSC for drag racing198. This consideration has no relevance to the use of the Council’s road to the south of the SPSC. Nor does the evidence explain why this problem would be made worse by an upgrading of access along Cribb Road, and an increase in the traffic volumes there. [93] Another matter was that there had been several incidents of vandalism and theft at the sports complex199. Again, this concern would appear to relate to permitting traffic to pass through the SPSC, rather than along the Council’s road. [94] In any event, Mr Beard gave evidence that in fact access to other properties through the SPSC would be of benefit, because the additional people and activity would bring a lot more surveillance, than would be the case if the SPSC were closed after 10.00 pm200. The learned Member rejected this on the basis that Mr Beard accepted it to be an assumption201. A perusal of Mr Beard’s evidence shows that the improvement in security was not an assumption by Mr Beard; and the learned Member appears to have misunderstood his evidence. The assumption was that access would be provided, and development would occur. There is no reason to reject Mr Beard’s evidence about a likely improvement in security with additional use of access through the SPSC. In truth, this consideration favours a master planned traffic system including a road through the SPSC, rather than militating against it. [95] Another matter raised in support of the Council’s position was “rat-running”, explained by Mr Douglas as a concern about the mixing of traffic from residential and commercial development to the south with traffic from the SPSC, including issues relating to the safety of participants and spectators, many of whom would be children202. It is easier to see this as an issue relating to access to the north through the SPSC, rather than along the Council road. In another context, the learned Member recorded that Mr Douglas had supported a loop road system in the Comiskey appeal203; but that his enthusiasm had been 197 See RJ [90]. 198 12 AR 2303. 199 12 AR 2303; RJ [90]. 200 1 AR 78 L 30. 201 RJ [91]; 1 AR 78 L 35. 202 4 AR 696. 203 RJ [125]. -- 34 of 47 -- 35 “reined in” by the Council204. In this context, his Honour concluded that Mr Douglas did not think that rat-running alone was a sufficient reason to exclude a loop road from consideration205. Apart from affecting the weight of some of Mr Douglas’s evidence in the Land Court, his Honour’s conclusion confirms that Mr Douglas recognised the planning benefits of a loop road system; and had considered them more significant than rat-running. [96] Mr Beard considered rat-running to be as much a problem arising from the proposed expanded SPSC as it would be for the development of the resumed land206. Support for his view may be found in the traffic generation figures207, approximately 1500 vehicles per hour being generated by the SPSC, and 420 vehicles per hour by development of the kind envisaged by the Ovenden plan. It was accepted by Senior Counsel for the Council that the catchment for commercial development on the resumed land was much more significantly to the west than to the north east, so that the significant access for such development was over the Council road208. While nevertheless some proportion of traffic from such development, and some proportion of traffic associated with residential development on the resumed land, might use access through the SPSC to Leitchs Road, if access were available to the north, the numbers were likely to be significantly lower than the volumes of traffic generated by the SPSC itself. There is no reason to think that a hypothetical prudent purchaser would have considered concern about traffic from development of the Caseldan land through the SPSC to be a matter of great significance. (It might be noted that a masterplanned system which included the Northern Loop Road and the Southern Loop Road would also mean that traffic from the shopping centre could travel through the SPSC. Given that its catchment was generally to the west, the volumes were nevertheless unlikely to be seen as significant.) [97] The learned Member referred to the fact that development of the resumed land in accordance with the Ovenden plan would add a significant component to the traffic flow along the Council’s road, with a significant impact on the traffic situation209. His Honour assumed that all of the traffic from the resumed land would use that road, rather than 204 RJ [126]. 205 RJ [125]. 206 1 AR 75 L 20. 207 RJ [106]-[108]. 208 T 2-68 L10-20. 209 RJ [108]. -- 35 of 47 -- 36 driving through the SPSC to the north. However, even on that assumption, the evidence does not show that a suitable upgrading of this access could not be achieved210. The learned Member’s acceptance of concern about the potential liability of the Council for traffic accidents was related to the existing condition of its road211. The significance of such concern cannot be great, given the volumes of traffic already using the road (without upgrading) to access the SPSC; and there is no reason to think that a concern about liability would be relevant, after road upgrading. [98] On the other hand, the traffic engineers in the Comiskey appeal (perhaps with the exception of Mr McClurg) identified the benefits of a master plan including the use of the Council’s road for access to South Pine Road from the resumed land212. Moreover, the use of the Council’s road for the purpose of access to the Caseldan land (and the Comiskey land) was consistent with advice given to the Council by its staff in February 2007213. [99] Overall, the evidence supports the view that a hypothetical prudent purchaser of the resumed land would have considered, because of the benefits of a loop road system, that there were substantial prospects of obtaining satisfactory access for the proposed development. [100] In reaching his conclusion that the hypothetical prudent purchaser would regard the prospect of obtaining appropriate access as very low, the learned Member attributed to such a purchaser knowledge “that the original Comiskey supermarket proposal was unsuccessful due to the absence of an appropriate traffic solution”. As the submissions for Caseldan point out, that position was not reached until after the date of the resumption. The learned Member also placed reliance on the fact that Comiskey “agreed ultimately to a smaller development rather than agree to a traffic master plan”214. The application which was ultimately approved for a shopping centre on the Comiskey land was lodged 210 While traffic engineers expressed doubt about this (see 3 AR 534), the traffic study accompanying the Council’s development application considered an upgrading of this intersection which would have spare capacity after the expansion of the SPSC (see 8 AR 1527-1528). 211 RJ [87]. 212 See 4 AR 842; 5 AR 907; 6 AR 1066-1067. Mr McClurg did not seem to disagree, rather he thought that provision for the Southern Loop Road should not be a condition of the approval of the shopping centre (4 AR 874). 213 10 AR 1868. 214 RJ [99]. -- 36 of 47 -- 37 on 30 June 2013, the appeal in respect of the proposed development current at the date of resumption being pursued by Comiskey until it was dismissed in November 2012215. Again, the learned Member relied on facts not known at the date of the resumption. He erred in doing so216. [101] The attitude and conduct of Comiskey which have just been discussed were referred to by the learned Member when dealing with the prospect of access by means of a Northern Loop Road. Caseldan submitted that, if factually correct, these matters were irrelevant to that issue. That submission is correct, and it reveals a factual error in the learned Member’s reasoning. [102] There was, however, other evidence relevant to the likely attitude of Comiskey, if approached by the hypothetical purchaser, or if information was sought from Caseldan by such a purchaser on that topic. The most significant was Exhibit 24, Comiskey’s offer to resolve the shopping centre appeal (at least in part) by accepting a condition for the provision of a loop road through its land, for the purpose of future development of land including the Caseldan land217. It reflected the fact that a master plan for access to South Pine Road was seen as a potential solution to the provision of access which would be satisfactory for further development of the Comiskey land, such access being the remaining significant issue in the appeal218. While the offer, as made, remained open only for a brief period of time, it is inconsistent with the view that Comiskey would not have been prepared to agree to provision of access through its land to permit development of the resumed land. [103] The learned Member relied, for his conclusion about the likely attitude of Comiskey to permitting access to the Caseldan land across the Comiskey land, on evidence of Mr Douglas. Mr Douglas appropriately pointed out disadvantages relating to traffic issues which would be experienced by Comiskey if traffic from the Caseldan land were to cross the Comiskey land. However, it is difficult to see why weight should be given to Mr Douglas’s views about the likely attitude of Comiskey; and still less why those views should be adopted in preference to the attitude expressed by Comiskey in Exhibit 24. In 215 See 3 AR 556, 557. 216 See Brisbane City Council v Mio Art Pty Ltd [2012] 2 Qd R 1 at [78]. 217 12 AR 2354. 218 4 AR 827-830; 6 AR 1231-1233. -- 37 of 47 -- 38 part, Mr Douglas’s views were based on his views about the likelihood of complaints from residents on the Caseldan land about noise from the Comiskey land219, in turn relied upon by the learned Member. Such evidence was outside the area of Mr Douglas’s expertise; and it is difficult to see why an appropriate design of a residential development would not adequately deal with a potential problem of this kind220. Such development close to a shopping centre is not uncommon. Moreover, Mr Douglas recognised that there might be benefits to Comiskey if a loop road were provided221. He had earlier expressed the need for provision for master planning including the loop road, for the approval of the shopping centre the subject of the Comiskey appeal222. Mr Beard also considered that a loop road system through the Comiskey land increased the development potential of that land223. [104] The learned Member also relied on a statement by Mr Beard224 to conclude that Comiskey and its consultant saw the Southern Loop Road as an imposition225. That was clearly an inference drawn by Mr Beard about the state of mind of others, and not the recounting by Mr Beard of an expression by Comiskey of its view. Mr Beard’s evidence did not provide a proper basis for the learned Member’s conclusion. While there were likely to have been aspects of the Southern Loop Road which would have been disadvantageous to Comiskey, that does not mean that Comiskey did not see an overall advantage for itself in such a road, or that it was implacably opposed to providing it. Mr Beard’s view appears to have been expressed without knowledge of Exhibit 24. Moreover, Mr Beard considered, and it appears likely to be correct, that a masterplanned loop road system would make the intersections on South Pine Road more efficient, with a likely saving of upgrading costs for all involved, including Comiskey226. [105] The better view of the evidence is that a hypothetical purchaser would have considered that, at the date of resumption, that there was a real prospect that Comiskey would agree 219 2 AR 230 at L5; RJ [93]. 220 See 3 AR 561 paras 8.1.11 to 8.1.14; 563 para 8.1.27. 221 2 AR 229 at L15. 222 5 AR 833; 4 AR 823-824. 223 1 AR 16 L 10; 40-41. 224 3 AR 541. 225 RJ [101]. 226 1 AR 18 L 35. -- 38 of 47 -- 39 to access to the resumed land across the Comiskey land, at least as part of a loop road system. [106] The learned Member concluded that a hypothetical prudent purchaser would have considered the highest and best use of the subject land to be for sport and recreation purposes227, thereby rejecting Caseldan’s case that the resumed land should be valued by reference to its potential for mixed use development. His Honour justified his conclusion by reference to “the matters so far examined”. That is, in part, a reference back to his conclusion that the hypothetical prudent purchaser would have considered that obtaining appropriate access for a mixed use development would be expensive, and even “very expensive"228. [107] South Pine Road has been a busy road for many years. At the time of the purchase of the adjoining land by Comiskey, and of the Murphy land by the Council, it would have been apparent that the upgrading of intersections would be required for any significant development on these lands. For the hotel development, a substantial upgrading of the intersection at the entry to the Comiskey land was required229. Upgrading of this intersection and at Eatons Crossing Road was also required for the shopping centre development230. For the extension of the SPSC, the Council’s application showed that upgrading would be needed for both of the South Pine Road-Eatons Crossing Road intersection; and the access from the northern side of the SPSC, via Leitchs Road. A signalised intersection at South Pine Road and Cribb Road was considered, and its benefits recognised231. That some significant upgrades to the road system would have been required is likely to have been appreciated by both purchasers at the time of each purchase. The anticipated traffic generation rate for each of these developments would suggest additional traffic from the development on the resumed land would have been more easily accommodated than that from either the Comiskey developments or the expanded SPSC232. The evidence demonstrated that a hypothetical prudent purchaser was likely to appreciate the need for upgrades of the external road system to accommodate development on the resumed land. It does not support the conclusion that this 227 RJ [156]. 228 RJ [144]-[145]; and RJ [59]-[116], especially at [116]. 229 4 AR 773-777. 230 See 7 AR 1284; see also 6 AR 1062; and see Beard’s evidence at 1 AR 19. 231 8 AR 1525-1535; 1542;1543. 232 See RJ [106]-[108]. -- 39 of 47 -- 40 consideration provided a reason why a hypothetical prudent purchaser would not consider the highest and best use of the land to be for a mixed development. [108] The learned Member correctly pointed out that the planning scheme did not recognise a retail/commercial node on the eastern side of South Pine Road233. For that reason, a hypothetical potential purchaser would recognise the need to demonstrate that there are sufficient grounds to justify the approval, despite the conflict234. It is difficult to identify what finding the learned Member made on this question. His ultimate conclusion as to the unlikelihood of obtaining a town planning approval for a mixed use development appears to rest primarily on difficulties relating to access. Nevertheless, it is convenient to discuss some matters referred to by his Honour in this part of his reasons. [109] The learned Member stated that it would need to be shown that a particular proposed development, rather than a general plan such as the Ovenden plan, was supported by proper grounds235. While that proposition may often be correct in relation to an application for a development approval (although an application for a preliminary approval does not always specify development in detail, as the Council’s own application demonstrates), there is an air of unreality in applying it to a potential purchaser of a site such as the resumed land. It is more likely that a potential purchaser of the resumed land would form some view about the extent to which a mixed use development would be inconsistent with the scheme; and the likelihood of establishing planning grounds sufficient to justify an approval notwithstanding any conflict. As the submissions for Caseldan point out, the planners in the present case were able to take this approach236. It would not be correct to determine the highest and best use of the resumed land, on the basis that planning grounds sufficient to support an approval could not be found for a generalised form of development of the kind shown in the Ovenden plan. [110] It was submitted on behalf of Caseldan that the learned Member failed to give consideration to the planning grounds advanced on behalf of Caseldan to justify an approval of development consistent with the Ovenden plan. 233 RJ [142]. 234 See s 329(1)(b) of the SPA. 235 RJ [142]. 236 See, for example 3 AR 660; and see the discussion to grounds for approval in the joint report of the town planners at 3 AR 559-564. -- 40 of 47 -- 41 [111] The learned Member found that “the true planning landscape was not the same as the zoning which, in the case of all the land being considered, was the same”237. As his Honour recorded, this conclusion reflected the hotel/motel development, and the findings of Judge Jones in the Comiskey appeal; and it was accepted by Mr Simonic238. [112] The learned Member referred to the submissions made on behalf of Caseldan that the uses contemplated by the Ovenden plan would be complementary to the SPSC239. His Honour also recognised that convenience and co-location “might be urged in favour of an Ovenden Plan development when looked at alongside the other developments”240. His Honour made reference to evidence suggesting a public need for the existing golf course on the Caseldan land241. His Honour also recorded the concession by Mr Simonic that the documents reviewed in the Comiskey appeal do not suggest that there would be a different approach to the question whether the Caseldan land needed to be retained for sport and recreation uses242. However, the reasons do not record a weighing up of these matters, and the expression of an ultimate conclusion about them. The failure to do so does not itself affect the conclusion of the learned Member, which was based primarily on his views about access. [113] The learned Member made reference to the fact that there was no certainty as to when development of the expanded SPSC might occur. Plainly that would be a consideration of some relevance to a hypothetical prudent purchaser. Nevertheless in view of the matters considered, there was a real prospect that the Council would be required to dedicate the land at an early stage, as occurred in Intrapac; though that might mean that a developer of the resumed land would incur greater upgrading costs than would have been the case if the Council’s development proceeded first. 237 RJ [134]. 238 RJ [134]. 239 RJ [139]. 240 RJ [147]. 241 RJ [148]. 242 RJ [135]. -- 41 of 47 -- 42 Prospects of obtaining planning approval for mixed use development [114] The submissions for the Council relied on “a public need for the golf course on the (resumed) land”243. It was submitted that the learned Member did not accept that the planning scheme had been “overtaken by events”244; and that the inclusion of the land in the Sport and Recreation Zone was entirely appropriate, in view of the historical use of the land as a golf course245. [115] It may be accepted that the financial success of the golf operation demonstrated that it was of some advantage to some members of the public; an advantage which, to some extent, would be reduced by development in accordance with the Ovenden plan (though this also included a nine hole golf course246). However, there is another golf course immediately north of the Murphy Land. Mr Simonic accepted that his analysis in the Comiskey appeal would lead to the conclusion that there was no need to retain the resumed land in the Sport and Recreation Zone. On the other hand, there was evidence of a general kind to demonstrate that development of the resumed land would be of benefit to the community. The interest of developers, as manifested by the offers, in purchasing the land from Caseldan, expressed over a number of years, supports this view. As was said by Senior Counsel for the Council “this is a fast-growing part of Brisbane”247. [116] The weight to be given to the zoning of the land was likely to have been seen as less than it might otherwise be, given, as the learned Member found, that “the true planning landscape was not the same as the zoning”248. There were advantages relating to convenience and co-location of uses, by reason of the proximity of the Caseldan land to the Comiskey land249. There was also the prospect of some complementarity between commercial development on the resumed land, and the SPSC250. [117] The evidence adduced in the case leads to the conclusion that (leaving to one side questions relating to access) a potential purchaser of the resumed land would have 243 ROS para 25(ii), by reference to RJ [147] and [148]. 244 ROS para 25(ii). 245 ROS para 25. 246 4 AR 733. 247 T 3-5 L10. 248 RJ [134]. 249 Identified by Mr Ovenden at 3 AR 561; and see RJ [147]. 250 See 2 AR 347 to 349. -- 42 of 47 -- 43 considered that there were good prospects of showing grounds sufficient to justify an approval of a mixed use development, notwithstanding conflict with the planning scheme. Such a purchaser would likewise have considered that there were good prospects of getting a development approval for mixed used development of the site. Conclusions re potential for mixed use development [118] The hypothetical potential purchaser would have recognised that the major obstacle to such a development on the resumed land was the difficulty in obtaining appropriate access. Such a purchaser, while considering that access might become available as a result of the SPSC development, would have recognised that there was a significant risk in achieving access in this fashion; and also a risk that to achieve this access relatively quickly might involve additional cost. Such a purchaser would also have recognised some prospect of achieving an arrangement with Comiskey; or alternatively of reselling the land to Comiskey for an extension of its development. The purchaser would have considered that there were good prospects of carrying out a mixed use development, but subject to the risks referred to. Valuation on basis of mixed use development [119] Both valuers relied on the purchase by Comiskey of the adjoining land, and the purchase of the Murphy land251. Their analyses resulted in rates per square metre, from the sales, of approximately $61 and $71252. Mr Rabbitt described these two sales as the best evidence of value for the resumed land253. [120] From his sales analysis, Mr Rabbitt applied a rate of $55 per square metre to the resumed land, resulting in a market value of $5.5 million. [121] The Comiskey land did not have the same difficulty in obtaining appropriate access as the subject land. It had a better frontage to South Pine Road, and a better shape for development. Both the Comiskey and the subject land were affected by the power easement, and there does not seem to be any relevant distinction between them in this 251 3 AR 588, 596. 252 3 AR 585, 588. 253 3 AR 596. -- 43 of 47 -- 44 regard. Both properties were affected by the overland flow path254. The land adjoining the eastern boundary of the resumed land was below the Q100 flood line, though the Comiskey land was not similarly affected255. Otherwise, the evidence does not show that topography was a material distinction. The Comiskey land was somewhat smaller in area. At the time when Comiskey purchased the adjoining land, all of the nearby land on the eastern side of South Pine Road was zoned for sport and recreation, and there had not been a development approval for a higher and better use. It is likely that the risk of obtaining such an approval for the Comiskey land would then have been seen as higher than for the subject land at the date of the resumption. [122] The Murphy land had clearly superior frontage to South Pine Road. It was regular in shape. It did not suffer from the same access difficulties as those facing a developer of the resumed land. There was no suggestion that it was flood affected. The area of land was similar to that of the resumed land. The sale was to an adjoining owner, no doubt for the development of the land in conjunction with adjoining land for the SPSC. Additional flexibility in relation to access to this land was readily available to the Council, on its road. It is likely that the purchase was, in part, for sport and recreation purposes. [123] Mr Rabbitt’s valuation does not adequately reflect the disadvantages of the resumed land, when compared to the sale properties, particularly those relating to access, and should not be adopted. The unconditional offers referred to previously may be considered as a check; but reference to them does not lead to a different conclusion. [124] Mr Gillespie took what might be described as a two-stage approach to valuing the resumed land on the basis of its potential for a mixed use development. In the first stage, Mr Gillespie valued the land at $3,894,000, or approximately $39 per square metre. In the second stage he reduced this value by 50 per cent, because of access difficulties, and the cost of upgrading intersections, resulting in a valuation of $1,950,000. [125] In the first stage, Mr Gillespie valued 7.21 hectares of the land (excluding the power line easement and the area below the Q100 flood line), at $500,000 per hectare, or $50 per 254 3 AR 574. 255 3 AR 575. -- 44 of 47 -- 45 square metre. The balance of 2.89 hectares, affected by the powerline easement and/or flooding, he valued at $100,000 per hectare, or $10 per square metre. [126] There are difficulties with Mr Gillespie’s approach. A rate of $50 per square metre, ignoring the cost of upgrading intersections and excluding powerline easements does not sit well with the Comiskey sale at $55 per square metre, for land much of which was affected by the powerline easement, and where the developer faced costs of upgrading the intersection. Indeed to assess some of the balance area (apparently 1.3 hectares256) at $10 per square metre when it was only affected by the powerline easement seems particularly unsatisfactory by comparison with the sale. Similarly, his rate for the area not affected by the powerline easement or flooding, and excluding consideration of access difficulties and the cost of upgrading intersections, is difficult to reconcile with the Murphy sale. The area to which the $50 per square metre rate was applied would, on the Ovenden plan, be intended for more intense development, whether commercial or residential. A substantial part of the Murphy land was undoubtedly intended for sport and recreation use. The Murphy land inevitably required intersection upgrading, a factor excluded by Mr Gillespie when adopting his rate of $50 per square metre. [127] The valuation derived by Mr Gillespie is substantially below any of the unconditional offers previously referred to. [128] It follows that Mr Gillespie’s value should not be adopted. [129] In the end, it is necessary to make some form of judgment, intended to reflect the relative value of the resumed land, when compared to the sale properties. [130] While some assistance may be derived from the unconditional offers referred to earlier, that assistance is limited. Three of the offers were by an adjoining owner. A similar situation was considered in Phillipou257, on an appeal from a determination of the value of resumed land by the Victorian Land Valuation Board of Review, the appeal being on a question of law. The Board had considered evidence of an offer to purchase the land by an adjoining owner, taking into account the likelihood that the adjoining owner would 256 AOA para 65. 257 Phillipou at 259. -- 45 of 47 -- 46 be willing to pay more than what would otherwise be the market value of the land. Nevertheless, it did not assess the value of the land at the amount offered by the adjoining owner. Barber J said258, “…just how much additional value should be allowed for this factor was a question of fact for the board”. [131] Obviously, had Comiskey made a genuine offer to purchase the resumed land close in time to the resumption date, that offer would carry considerable weight, at least as a floor for the market value. While Comiskey had made three previous offers, they were, to varying degrees, earlier in time; and a sale then would have given Comiskey flexibility in planning for future development. It does not seem appropriate, therefore, to adopt them as establishing a lower limit for the value of the land at the date of resumption. Nevertheless, they remain of some relevance. [132] The Flaskas offer was made for the use of the land as a golf course. It was made before there was any approval for a higher form of development on the eastern side of South Pine Road. It would seem that the market value of the land at the time of resumption would have to be higher than this offer. [133] Bearing in mind the matters that have been discussed, it would seem appropriate to determine the value of the land at $4.1 million. This would better reflect the differences between the resumed land and the sale properties, than did either Mr Rabbitt’s valuation or that of Mr Gillespie; and would not be inconsistent with the unconditional offers to purchase the resumed land. Alternative use for sporting fields [134] It is clear that extensive earthworks would have been required for the development of the land for this use259. Mr Rabbitt, who valued the land on this basis, made no attempt to determine the extent of earthworks required, or their cost. Given their extent, that failure casts considerable doubt on a contention that these could be ignored in a comparison with the sale of the Rosalie sports grounds because that land was subject to flooding. The 258 At 259. 259 See 1 AR 193-195. -- 46 of 47 -- 47 learned Member did not err in rejecting Mr Rabbitt’s valuation of the land on the basis of this alternative use. Conclusion [135] The value of the resumed land at the date of its resumption is determined to be $4.1 million. ORDERS 1. The appeal is allowed. 2. Compensation is determined in the amount of Four Million, One Hundred Thousand Dollars ($4,100,000). PETER LYONS J PA SMITH MEMBER OF THE LAND COURT WL COCHRANE MEMBER OF THE LAND COURT -- 47 of 47 --