Caseldan Pty Ltd v Moreton Bay Regional Council [2014] QLC 53 (2014) 35 QLCR 412

LAND COURT OF QUEENSLAND CITATION: Caseldan Pty Ltd v Moreton Bay Regional Council [2014] QLC 53 PARTIES: Caseldan Pty Ltd (applicant) v Moreton Bay Regional Council (respondent) FILE NO: AQL809-12 DIVISION: General Division PROCEEDING: Application to determine compensation under the Acquisition of Land Act 1967 DELIVERED ON: 9 December 2014 DELIVERED AT: Brisbane HEARD ON: 19, 20, 21, 22, 23 May 2014 30, 31 July 2014 27 August 2014 Submissions finalised and decision reserved 27 August 2014 HEARD AT: Brisbane MEMBER: WA Isdale ORDER: 1. The value of the land is assessed in the amount of One Million Eight Hundred Thousand Dollars ($1,800,000). 2. The parties will be heard on the matter of costs attributable to stamp duty for replacement land. 3. The parties will be heard on the matter of interest. 4. Any application for costs is to be filed and served and any reply is to be filed and served as directed. CATCHWORDS: Resumption – Pointe Gourde principle – valuation – offers – conditional offers – unconditional cash contract Acquisition of Land Act 1967, ss 20, 21 Sustainable Planning Act 2009, ss 326, 329 -- 1 of 65 -- 2 AMP Capital Investors Ltd & Anor v Transport Infrastructure Development Corporation [2008] NSWCA 325, 163 LGERA 245 Auxil Pty Ltd & Anor v Terranova & Ors (2009) 260 ALR 164 Bowers & Anor v Pine Rivers Shire Council [2007] 28 QLCR 196 Brisbane City Council v Mio Art Pty Ltd & Anor [2011] QCA 234 Comiskey Group (a firm) v Moreton Bay Regional Council & Ors [2011] QPEC 132 Commissioner for Railways v Buckler (1996) 1 Qd R 18 Commissioner of Succession Duties (SA) v Executor Trustee and Agency Company of SA (1947) 74 CLR 358 The Crown v Murphy [1990] 64 ALJR 593 De Ieso v Commissioner of Highways (1981) 27 SASR 248; (1981) 47 LGRA 412 Department of Transport and Main Roads v Mahoney [2014] QLAC 1 Gold Coast City Council v Dobson [2014] QLAC 6 Grosser & Anor v Council of the City of Gold Coast (2001) 117 LGERA 153 Haig v Minister (1994) 85 LGERA 143 Handley v Brisbane City Council and Pike Mirls McNoulty Pty Ltd [2004] QPEC 39 Heavey Lex No. 64 Pty Ltd v Chief Executive, Department of Transport (2001) 22 QLCR 177 Housing Commission of New South Wales v San Sebastian Pty Ltd (1978) 140 CLR 196; 37 LGRA 214 Ipswich City Council v Wilson (2011) 32 QLCR 357 Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413 Mahoney & Ors v Chief Executive, Department of Transport and Main Roads (No. 3) [2013] QLC 11 McDonald v Deputy Federal Commissioner of Land Tax for New South Wales (1915) 20 CLR 231 Melwood Units Pty Ltd v Commissioner of Main Roads (1978) 52 ALJR 593, 37 LGRA 387 Minister for Public Works v Thistlethwayte [1954] AC 475 Mio Art Pty Ltd & Ors v Brisbane City Council [2009] QLC 177 Mio Art Pty Ltd v Brisbane City Council (2010) 31 QLCR 174 MMAL Rentals Pty Ltd (ACN 008 293 490) & Ors v Bruning (2004) 63 NSWLR 167 Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226 (29 October 2007) Nardone v South Australian Land Commission (1948) 40 LGRA 164 Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495 O’Kane v The Commissioner of Main Roads (1976) 3 QLCR 331 -- 2 of 65 -- 3 Phillipou & Anor v Housing Commission of Victoria (1969) 18 LGRA 254 Plafaire Projects Australia Pty Ltd v Council of the Shire of Maroochy & Anor [1991] QPLR 87 Pointe Gourde Quarrying and Transport Co Ltd v Sub- Intendent of Crown Lands [1947] AC 565 Redland Shire Council v Edgarange Pty Ltd (2008) 29 QLCR 91 Savimaki & Ors v Sunshine Coast Regional Council (2013) 34 QLCR 125 Spencer v The Commonwealth (1908) 5 CLR 418, 440-441 Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd [2005] NSWCA 251 Walker Corporation v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 Wilson v Liverpool Corporation [1971] 1 WLR 302 Yalgan Investments Pty Ltd v Council of the Shire of Albert (1997-98) 17 QLCR 331 APPEARANCES: D O’Brien QC instructed by Corrs Chambers Westgarth for the applicant C Hughes QC and N Kefford instructed by Legal Services, Moreton Bay Regional Council for the respondent Background [1] The applicant, as trustee, was the registered proprietor of an estate in fee simple of land situated at 638 South Pine Road, Brendale. Described as Lot 2 on Registered Plan 902648, County of Stanley, Parish of Warner, it has an area of 10.1 hectares. [2] The land was, and still is, used as a golf course. On 12 January 2012 the respondent (Council) gave notice of its intention to acquire the land under the Acquisition of Land Act 1967 (the Act). The expressed purposes of acquisition were for sport and recreation. [3] On 10 April 2012 the parties entered into an agreement for the taking of the land. Included in the agreement was provision for the payment of an advance of $2,000,000, exclusive of GST, on account of compensation. [4] On 20 July 2012 (the date of resumption) Taking of Land Notice (No. 24) 2012 shows the land was then taken by the respondent “for recreation ground purposes” and that it vested in the respondent in fee simple on and from that day.1 [5] On 23 October 2012, the parties not having reached agreement on the full amount of compensation, the applicant commenced proceedings in this Court for a determination. At that time it claimed $8,629,500 as the value of the land. 1 Queensland Government Gazette, Volume 360 No. 58, 20 July 2012, page 849. -- 3 of 65 -- 4 The dispute [6] At the hearing, the claim made by the applicant was that the market value of the land was $5,555,000 on the basis that its highest and best use was for a mix of residential, commercial and sport and recreation uses. It was also contended that if, in the alternative, the highest and best use was as playing fields then the market value and therefore the compensation for loss of the land would have been $3,535,000 as at the date of the resumption of the land. The respondent’s case was that the value of the land was $1,800,000. The Court’s function [7] The Court is required to resolve the present dispute by assessing compensation in accordance with the Act, valuing the loss on the day when it occurred. This requires the Court to find the monetary point at which a fully informed prudent purchaser and vendor would agree on a price for the land. This will include determining how they would assess the land’s development potential but may not necessarily include all of the matters on which they might happen to disagree. As the Land Appeal Court said in Bowers & Anor v Pine Rivers Shire Council:2 “Although the learned Member heard from many experts, he did not seek to resolve every issue raised by them. Uncontroversially, he saw his task at para 14 of his reasons as deciding how ‘… the hypothetical purchaser and vendor, properly advised and acting reasonably and prudently would come together at a price for the land … to determine how the prudent vendor and purchaser acting on appropriate advice, would assess the development potential of the land.’ ” The issues for the Court to determine [8] The Court required the parties to provide an agreed chronology, which became Exhibit 36. The applicant also provided its own supplementary chronology, Exhibit 37. Also in response to a requirement of the Court, the parties provided an agreed list, Exhibit 35, of the issues required to be determined. Additionally, the closing written submissions were required to follow the structure of Exhibit 35 and to refer, under each category, to all of the evidence relied on in respect of each matter, with specific references. These directions were for the purpose of ensuring that all of the things relied on were clearly indicated. These reasons adopt the agreed structure of the issues to be determined. Exhibit 35 is in the following form: 2 (2007) 28 QLCR 196, 199 [18]. -- 4 of 65 -- 5 “LIST OF ISSUES FOR THE COURT’S DETERMINATION A. The fundamental issues to be determined by the Court are as follows: 1. The highest and best use of the land at the relevant date (20 July 2012). 2. The market value of the land as at the relevant date. B. To inform a determination of those fundamental issues the Court will need to determine the following matters. 1. With respect to traffic and access issues: (a) what would the hypothetical purchaser have considered to be the likelihood of obtaining appropriate access for playing field use? (b) what would the hypothetical purchaser have considered to be the likelihood of obtaining appropriate access for development in accordance with the Ovenden Plan? (c) should the Court disregard the Council’s denial of access for the purposes of a Southern Loop Road as being part of a scheme to, or steps taken to, resume the subject land? 2. With respect to town planning issues (and bearing in mind the traffic issues referred to above): (a) what would the hypothetical purchaser have considered to be the likelihood of obtaining town planning approval to use the land as playing fields? (b) what would the hypothetical purchaser have considered to be the likelihood of obtaining town planning approval for a mixed use development as illustrated by the Ovenden Plan? 3. With respect to valuation issues generally: (a) What would the hypothetical purchaser have considered to be the highest and best use of the subject land on the basis of a cash unconditional contract? (b) Is it necessary to have development costs or estimates to determine what a hypothetical purchaser would pay for the subject land to be converted to use as sporting fields? (c) Having regard to the answers to the above questions, what is the market value of the land as at the relevant date?” Issues A1 and A2 will be determined by the answers to the other questions, particularly 3(a) and 3(c). Inspections by the Court [9] At the request of the parties, inspections of the subject land and of a number of properties used by the valuers as comparison sales were conducted on Tuesday, 20 May 2014, the second day of the hearing. The inspections do not themselves comprise evidence but they may assist in understanding the evidence. Development potential [10] In cases such as the present case, this Court does not concern itself with attempting to discover exactly what the local authority would have approved to be built on the land. Its consideration was explained by the learned President in the following way: “It is not the function of this Court to decide whether the planning authority would approve a particular proposal. Rather it is the function of the Court to determine, having heard the relevant evidence, how the hypothetical prudent purchaser referred -- 5 of 65 -- 6 to in the judgments in Spencer would have viewed the potential financial return if a proposal were considered that included one or other of the proposed plans.”3 This will be kept constantly in mind in these reasons. The meaning of value [11] Under the Act, compensation is assessed in accordance with s 20. By s 20(2) it is provided that: “(2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.” The “value” referred to in s 20(2) is accepted to be the value to the applicants as dispossessed owners.4 The word “value” is not defined in the Act, its meaning has been accepted to be the market value determined in accordance with the decision of the High Court in Spencer v The Commonwealth.5 The relevant passages appear in the judgments of Griffiths CJ and Isaacs J. The learned Chief Justice said: “In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, i.e., whether there was in fact on that day a willing buyer, but by inquiring ‘What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?’ It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together.”6 Isaacs J said: “In the first place the ultimate question is, what was the value of the land on 1st January 1905? All circumstances subsequently arising are to be ignored. Whether the land becomes more valuable or less valuable afterwards is immaterial. Its value is fixed by Statute as on that day. Prosperity unexpected, or depression which no man would ever have anticipated, if happening after the date named, must be alike disregarded. The facts existing on 1st January 1905 are the only relevant facts, and the all important fact on that day is the opinion regarding the fair price of the land, which a hypothetical prudent purchaser would entertain, if he desired to purchase it for the most advantageous purpose for which it was adapted. The plaintiff is to be compensated; therefore he is to receive the money equivalent to the loss he sustained by deprivation of his land, and that loss, apart from special damage not here claimed, cannot exceed what such a prudent purchaser would be prepared to give him. To arrive at the value 3 Mio Art Pty Ltd & Ors v Brisbane City Council [2009] QLC 177, [12], citing De Ieso v Commissioner of Highways (1981) 27 SASR 248; (1981) 47 LGRA 412, 417. This passage was quoted by Fryberg J in Brisbane City Council v Mio Art Pty Ltd & Anor [2011] QCA 234, [9]. 4 Brisbane City Council v Mio Art Pty Ltd & Anor [2011] QCA 234 per Fryberg J at [31] where His Honour referred to O’Kane v The Commissioner of Main Roads (1976) 3 QLCR 331, 333 and Minister for Public Works v Thistlethwayte [1954] AC 475, 491. 5 (1908) 5 CLR 418. 6 (1908) 5 CLR 418, 432. -- 6 of 65 -- 7 of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property.”7 [12] In Gold Coast City Council v Dobson8 the Land Appeal Court referred, at [73] to the decision of the High Court in Walker Corporation v Sydney Harbour Foreshore Authority9 where the High Court stated that Spencer v The Commonwealth10 had been summed up in Kenny & Good Pty Ltd v MGICA (1992) Ltd11 where McHugh J said: “Value is determined by forming an opinion as to what a willing purchaser will pay and a not unwilling vendor will receive for the property.”12 The land and its surroundings [13] The land’s 10.1 ha is an irregularly shaped single allotment, something like a reversed letter C in form, with the ends reaching west towards South Pine Road. The northern end gains access to that road via a service road while at the south the land has no practical access to South Pine Road due to the contour and proximity to a bridge at Cash’s Crossing. [14] The land falls gently from South Pine Road towards the South Pine River. Its shape is exploited by its use as the Albany Links Golf Course. On the eastern part of the land there is a significant terrace down to the flood plain and power lines cross the land on an easement running from the north-east to the south-west. The land has been selectively cleared consistent with its golfing use. As well as a 10 hole golf course, there is an 18 hole mini golf course, a club house, caretaker’s residence, equipment storage sheds and a restaurant connected by service road to South Pine Road. The restaurant was leased for an Indian restaurant. [15] The land curves around two parcels, referred to at the hearing as the Comiskey land, that have good access to South Pine Road. The southern of these, 646 South Pine Road had the recently constructed and very large Eatons Hill Hotel on it. It was constructed pursuant to a 2009 Court-ordered development approval. A four storey motel which was part of that approval had not been constructed. 7 (1907) 5 CLR 418, 440-441. 8 [2014] QLAC 6. 9 (2008) 233 CLR 259 at [51]. 10 (1907) 5 CLR 418. 11 (1999) 199 CLR 413, [49], [50]. 12 [2014] QLAC 6, [73]. -- 7 of 65 -- 8 [16] The northern part of the Comiskey land, 640 South Pine Road, was the subject of an application for development for a large full line supermarket, gym and supporting shops. The Planning and Environment (P and E) Court had given a decision in respect of that. [17] Running along the north of the subject land is a private roadway owned by the respondent. This allows access to the regional recreation facility called the South Pine Sporting Complex. The respondent has and exercises control over use of its private road to access its sporting facilities by means of a boom gate traffic control, opening and closing its private road as it sees fit.13 [18] This private road, known informally as Cribb Road, is sealed as far as the car park of the sporting complex from where it continues to the east as a formed gravel road. [19] In December 2007 the respondent had purchased land at 596 South Pine Road, referred to at the hearing as the Murphy land. This was the subject of a development application that would upgrade the sporting complex and include a commercial and retail element along the South Pine Road frontage. [20] Further north is the Wantima 18 hole golf course and clubhouse. Across South Pine Road, on the western side, was a Seven Eleven service station and the Eaton Central shopping centre. A school, child care centre and low density residential development are also on the western side. [21] On the date of resumption, the land was zoned for Sport and Recreation under the planning scheme in force, the Pine Rivers Plan 2006. It was in the Urban footprint under the South East Queensland Regional Plan. The Pine Rivers Plan included overall outcomes to which the applicant directed attention. Item 2.2(19) requires that development be orderly with particular regard to the efficient and economic provision and maintenance of engineering and social infrastructure.14 Item 20 requires the overall outcome that land use and transport are integrated.15 Item 22 requires that the “appropriate transport connections are provided to improve access and mobility between and through the urban locality”.16 Item 23 provides that “the efficiency and effectiveness of the existing transport system and future transport corridors are protected and enhanced through appropriate development”.17 13 Exhibit 1 Volume 8 Map 108 shows the two gates, one near South Pine Road and the other at the point where the access road for the sporting facility reaches Cribb Road. 14 Exhibit 6 3-4 (19). 15 Exhibit 6 3-4 (20). 16 Exhibit 6 3-4 (22). 17 Exhibit 6 3-4 (23). -- 8 of 65 -- 9 Agreement on some disturbance items [22] The parties have reached agreement to settle all but one item of the applicant’s claim relating to disturbance for $30,000.18 The sole remaining item is for transfer duty on replacement land. The amount of duty will not be able to be calculated until the value of the land has been determined. Alternative claims [23] The land can have only one highest and best use and its value will depend on that. The applicant has however made the claim in the alternative. The higher figure of $5,555,000 is said to be the value if the land had potential for a mixed use development described by the applicant’s town planning expert, Mr Ovenden, in what was referred to as the Ovenden Plan. The applicant’s alternative figure, $3,535,000 is applicable, the applicant says, if the highest and best use is for conversion of the land into sporting fields for private clubs or schools. [24] The applicant points to three events which are important, indeed “critical”19 to its case for the mixed use development. Those are: (a) The hotel/motel approval, which the present respondent consented to in the P and E Court in 2009, despite the relevant land being zoned Sport and Recreation under its planning scheme. (b) The decision of the P and E Court on 24 October 2011 in relation to the Comiskey appeal against the present respondent’s refusal to approve a full line supermarket shopping centre immediately to the south of the land.20 (c) The respondent’s lodgement of a development application, with itself, for preliminary approval of a material change of use so as to allow a major expansion of the sporting complex. The Comiskey decision [25] The 24 October 2011 decision of the P and E Court is relied on by the applicant as significant in rebuttal of the respondent’s contention that the land lacked appropriate access and that its zoning for sport and recreation uses was a significant impediment to its development. His Honour Jones DCJ found that: “1. But for the traffic issues I would have upheld the appeal. 2. However, approval at this stage would be premature on traffic grounds.”21 18 Exhibit 34. 19 Submissions of the applicant filed 26-8-14, 34. 20 Comiskey Group (a firm) v Moreton Bay Regional Council & Ors [2011] QPEC 132. Exhibit 1 Volume 5, 1081. 21 Comiskey Group (a firm) v Moreton Bay Regional Council & Ors [2011] QPEC 132 [1]. -- 9 of 65 -- 10 The proposed development was for a 3,200 m² Woolworths Supermarket, 1,374 m² of speciality shops, a 2,000 m² gymnasium, 395 car parking spaces and 10 motorcycle parking spaces.22 [26] The applicant submits that the effect of the Comiskey decision was that: “(i) there was a clear community need for the Comiskey shopping centre proposal; (ii) the conflict between the Comiskey shopping centre proposal and the Sport and Recreation zoning of that land was of a low order; (iii) there was no need for the Shopping Centre Land to be retained for sport and recreation related purposes in addition to land already then owned by the Respondent; (iv) there was no long term value in retaining the Shopping Centre Land for sport and recreation related purposes in perpetuity given the size of the SPSC (the sporting complex) and its separation from the Shopping Centre Land; (v) the area in which the Shopping Centre Land was situated had no particular character and in a physical sense was part of a node of existing and proposed mixed commercial uses; and (vi) development of the type proposed by the Comiskey shopping centre proposal would not have any material impact on the general character of the area in which the Shopping Centre Land was situated and would not negatively impact community identity; and (vii) development of the type proposed would not constitute a serious departure from the Respondent’s planning intent or a significant change in planning strategy or materially, or genuinely, conflict with the hierarchical provisions of the Planning Scheme; (viii) it was reasonably likely that the traffic issues which prevented the approval of the Comiskey shopping centre proposal, would be satisfactorily resolved by inter alia the incorporation of, or the provision for, a loop road servicing, inter alia the Shopping Centre Land and the Land; and (ix) there were clear advantages in the incorporation of, or provision for, a loop road servicing the Shopping Centre Land and the Land (and that by inference, the traffic solution the Court considered materially likely to emerge, would incorporate or provide for such a loop road); (x) that when the solution to the traffic issues was reached between the parties the appeal would be allowed. [27] The traffic issues revolved around whether the road works proposed by Comiskey were adequate. If so the appeal would succeed. A loop road through the shopping centre land was a potential solution. This would have required the dedication of part of the respondent’s private access road to the sporting complex as public road. [28] At a meeting of the respondent’s coordination committee on 8 November 2011 the committee recommended that the recommendations of the Council officer made to it be adopted. These were: “1. That, in light of the reasons for judgment handed down on 24 October 2011, Council does not oppose the proposed shopping centre at 646 South Pine Road. Eatons Hill (subject to an appropriate traffic solution being found which addresses not only issues of congestion but also public safety, and which will not be reliant on the private road to the north of the site from the South Pine Road to 22 Ibid [3]. -- 10 of 65 -- 11 Council’s South Pine Sporting Complex being gazetted as public road, or having connections to it from the subject site or other adjacent land). 2. That Council does not agree to the private road connecting South Pine Road to Council’s South Pine Sporting Complex being gazetted as public road, or having connections to it from the subject site or other adjacent land.”23 [29] The applicant contends that this decision, made for reasons that were not explained by the maker, is a withdrawal of its previous support for what was referred to at the hearing as the Southern Loop Road. The respondent says it is nothing of the sort as there had never been support in the first place. [30] On 28 February 2012 the Comiskey appeal came back before Judge Jones DCJ. In considering whether it was appropriate for the traffic engineers to reconvene on the subject of a draft master plan His Honour said: “I should also note in passing that the part of the land to the north, which the loop road was intended to provide for in the event of future development, is the subject of a notice of intention to resume. That such a notice exists is of no real significance in this case. As we all know, there is a long way and many obstacles to be overcome between the issuing of a notice of intention to resume and the proclamation of that resumption in the Government Gazette, and I note in this regard that a number of objections to the resumption have been lodged. Accordingly that the notice of intention exists is of no relevance in the determination of these matters. Ms George also contended that the loop road is in the public interest. In a sense that might well be so. However, it is worth noting here that it could be said that the respondent council largely represents the public interest at the local level. It is of relevance that they do not oppose or no longer oppose this proposal subject to a suitable traffic solution. Also at the wider level, at least insofar as traffic considerations are concerned, the sixth co-respondent by election, the Chief Executive, Department of Transport and Main Roads also represents the wider public interest. So whilst there might be some merit in Ms George’s submissions concerning public interest, it appears to me that there is no evidence of any greater or wider public interest which really justifies the inclusion of the loop road in any further consideration of the proposal. On the other hand, to dismiss the appeal would have a significant negative public impact in that it would deprive the relevant community of a shopping centre such as this in circumstances there (sic) is a clear need for it and where no viable alternate sites exist. Finally on this point, it is also relevant that some of the property requirements associated with the loop road are simply beyond the jurisdiction of this Court, involving as it does, land held in private ownership. In the council’s resolution which forms part of Exhibit 1 to the affidavit of Sonia Whitehouse there is a recommendation to the following effect: ‘That, in light of the reasons for judgment handed down on 24 October 2011, Council does not oppose the proposed shopping centre at 646 South Pine Road, Eatons Hill (subject to an appropriate traffic solution being found which 23 Exhibit 1 Volume 5, 1109. -- 11 of 65 -- 12 addresses not only issues of congestion but also public safety, and which will not be reliant on the private road to the north of the site from South Pine Road to Council’s South Pine Sporting Complex being gazetted as public road, or having connections to it from the subject site or other adjacent land); 2. That Council does not agree to the private road connecting South Pine Road to Council’s South Pine Sporting Complex being gazetted as public road or any connections to it from the subject site or other adjacent land.’ From my reading of the Cardno Eppell Olsen report which also forms part of Exhibit 4 to the affidavit of Ms Whitehouse, under the heading Connection To Adjoining Land, and also under the heading Conclusion, that the loop road is seen, at least by the author of this report, as being a matter which, if required in the future, would have to be dealt with on its own merits and should not form a substantive part of the determination of the traffic issues associated with this proposal. On balance I consider it would be premature to dismiss the appeal at this stage. As I said there is a clear public need for the proposal, the only limitation being that of a satisfactory traffic solution. That there is such a need and no viable alternate site is a powerful reason not to dismiss the appeal at this stage. It also appears to me that on balance, while the loop road, which seemed to have gained momentum during the evidence of the traffic engineers at the hearing of the substantive appeal, did have some initial attraction, given council’s now support for the proposal but strong objection to it allowing any of its private road becoming public road, convinces me that the order envisaged in order 2 of the draft orders handed up by Ms Kefford ought be made. The essential effect of that is to no longer make consideration of the loop road a necessity in any future meetings of the traffic engineers.”24 [31] The applicant contends that the respondent’s conduct, which it characterises as withdrawing its support for the Southern Loop Road was a step in the process of resuming the land from the applicant. The step was taken to have the effect of reducing the compensation which it would have to pay on acquiring the land and its dampening influence on the land’s value must be ignored for present purposes. In saying this the applicant points to the San Sebastian principle. [32] The minutes of the respondent’s coordination committee show that at its meeting on 13 December 2011 it resolved to acquire the land. Referring to acquiring the land and some other land the minutes relevantly state: “Executive Summary The purpose of this report is to seek Council approval to proceed with the acquisition of strategic land holdings in Strathpine and Eatons Hill localities. 1. Background The subject parcels of land are described as: Albany Links Golf Course (Attachment A) The land in question borders the South Pine Sporting Complex at Eatons Hill. Acquisition of the land would add to the land area for the complex and would effectively limit the risk of further potentially unsuitable development in this area. 24 Exhibit 7. -- 12 of 65 -- 13 Details of the land are:  Lot 2 on RP902648  Area 10.1 ha  Zoning-Sport and Recreation … The former Pine Rivers Shire Council has previously investigated the purchase of both sites, but owners’ expectations and valuations are significantly different. This is unlikely to have changed in the intervening period. Both sites have significant constraints which severely restrict future development potential … Albany Links Golf Course Acquisition of the subject land would serve the following purposes  The land adjoins the South Pine Sporting Complex and it is clearly in the community interest to retain the land for open space/sporting purposes  The only way of effectively securing the land for open space/sporting purposes is to have it in public ownership  The South Pine Sporting Complex is a significant regional sporting facility with future Master Plans over the site. The adjoining land will provide the ability to consider larger (sic) term development options for the benefit of the community and for future generations.  In the short to medium term it is intended to retain the Par 3 course as an operating entity as it provides for a real sporting/recreation need within the community. Proposed Acquisition Process Given that previous approaches to respective property owners have not resulted in a way forward, and following consultation with Councils legal section, it is proposed to  Advise the owners that Council has resolved to acquire the properties in question  Issues (sic) a Notice of Intention to Resume (NIR) in accordance with the Acquisition of Land Act 1967 ITEM 26 – CONFIDENTIAL ACQUISITION OF PROPERTIES – MULTIPLE DIVISIONS – A6313355 (Cont)  Continue to negotiate with the property owners in an attempt to reach agreement, noting that most NIR’s result in an agreement being reached prior to the formal NIR process running its full course The land in question represents a strategically significant purchase for Council with the ability and options to utilise it for a range of community purposes in the years ahead Desk top valuations have been obtained from a registered valuer However, formal valuations will be obtained should Council resolve to proceed with the proposed acquisitions. -- 13 of 65 -- 14 3. Strategic Implications 3 1 Legislative/Legal Implications Nil 3 2 Corporate Plan / Operational Plan Our Environment Sustainable development through high quality planning and building outcomes 3 3 Policy Implications The proposal is consistent with Council policy regarding the acquisition of land 3 4 Risk Management Implications The risk in approaching the property owners prior to the issue of an NIR is that the owners may seek to negotiation with an external party, thereby complicating the acquisition process and making it more costly 3 5 Delegated Authority Implications As noted in the report recommendation 3 6 Financial Implications The proposed acquisitions would be funded from the Property Acquisition Budget The Property Acquisition budget has sufficient funds for both transactions, taking into account proposed land acquisitions which may occur between now and the end of the current financial year 3 7 Economic Benefit The benefit in acquiring the properties relates more to the preservation of land as recreation and open space and for the benefit of future generations 3 8 Environmental Implications Nil 3 9 Social Implications In an ever expanding urban area, the retention of land as open space for use by the community delivers a range of positive social outcomes 3 10 Consultation / Communication The matter has been discussed with the Mayor and Divisional Councillors 4. Conclusion Acquisition of the subject land will preserve it for use by the community and by future generations, effectively eliminating the risk of unsuitable development outcomes In a growing urban environment, the acquisition and retention of significant parcels of open space land is vital to the well being and social fabric of the community Having strategically significant parcels of land in Council ownership is really the only way of securing the land for future open space / sporting purposes RECOMMENDATION 1. That Council take the necessary steps to acquire the properties the subject of this report. 2. That the Chief Executive Officer be authorised to take all action necessary to expedite the acquisition of the properties the subject of this report, with the -- 14 of 65 -- 15 process to be undertaken in accordance with Council Policy 37-2150-001 and the delegations under that policy are to apply.”25 [33] The applicant contends that in view of the hotel/motel approval, Comiskey’s shopping centre appeal and the decision of the P and E Court in that appeal, a prudent purchaser would have seen the land as important in the orderly development of a retail and commercial node which had come into being on the eastern side of South Pine Road. It is argued that a prudent and fully informed vendor and purchaser would have had a high expectation that traffic issues involved with developing the land would be resolved by means which included the creation of the Southern Loop Road. The Comiskey shopping centre development would be likely to be approved and a mixed use development along the lines of the Ovenden Plan would have had very good prospects of being approved on the land even though it was zoned for sport and recreation uses, like the land around it. [34] At the time of the resumption, the sporting complex was the subject of a development application made by the respondent to itself for a preliminary approval for a material change of use to expand it as shown in the South Pine Sports Complex Draft Master Plan. The land was not included in this plan. A new intersection was proposed at the dedicated Cribb Road and South Pine Road point and an internal road, referred to at the hearing as the Northern Loop Road, between Cribb Road and the respondent’s private road. Significant commercial development was indicated on the land facing and some way back towards the east from South Pine Road. [35] The respondent resolved to proceed with the development application on 31 January 2012.26 The application was made on 14 June 2012.27 [36] The respondent’s conduct in proceeding to apply to itself to develop this sports and recreation zoned land leads the applicant to contend that prudent and informed parties in the position of vendor and purchaser of the land would have believed that despite the respondent’s conduct in the Comiskey appeal the respondent as landowner would have been forced by the respondent as planning authority to provide access to the applicant’s land, that being a development condition which would be imposed by it on itself. [37] The applicant argues that once the Northern Loop Road was approved the Southern Loop Road would inevitably be constructed and that the proposed commercial development on the sports complex expansion would reinforce the growing commercial node character of this area. 25 Exhibit 1 Volume 1 p 3-6. 26 Exhibit 36, 64. 27 Exhibit 36, 71. -- 15 of 65 -- 16 The liberal estimate principle [38] The applicant points out that, if there is doubt as to the amount properly payable as compensation, the doubt should be resolved in favour of the more liberal estimate.28 This does not operate to free the Court of its duty to determine the compensation on the basis of the evidence.29 The approach to the Ovenden Plan [39] In Yalgan Investments Pty Ltd v Council of the Shire of Albert this Court considered a development plan. Member Scott said: “As will be read later in this judgment, I have concluded that there is insufficient evidence for me to be convinced that the hypothetical prudent purchaser would consider the subject land as an appropriate location for the development of a resort hotel as described in the evidence. Given that and the consequences of that finding, it is not strictly necessary for me to decide whether the implementation of a development based upon the ‘Simpson Plan’ would necessitate an application for rezoning or development approval, however, I see some benefit in my setting out some of the views that I formed on that matter. In this regard, I will consider the question of the practicality of carrying out a development in accordance with the ‘Simpson Plan’ and I used the word ‘practicality’ in its broadest sense, for the hypothetical purchaser envisaged in Spencer must not be taken to be a dewy-eyed dreamer who will take the most optimistic view in all matters; nor a wilting lily who will proceed with such pessimism that all problems will be seen to result in failure. I must view the evidence from the perspective of the hypothetical prudent purchaser and not from that of a Judge of the Planning and Environment Court. My task is not to decide the outcome of town planning issues as if I were hearing an appeal in that Court. Bearing this in mind, I will consider the practical issues that would attract the attention of the hypothetical purchaser.”30 I adopt the same approach. The Pointe Gourde/San Sebastian “principle” [40] The “principle” bears the name of authorities associated with it31 and is variously described as a “principle”32 or more prosaically as an interpretation applied by courts to expressions in legislation which refer to the value of land compulsorily acquired.33 It has been set out by Kirby P in the following form:34 “According to the principle, which is one devised by the judges, in valuing land for resumption purposes, any increase in the land’s value which is entirely due to the scheme underlying the acquisition is to be disregarded. The converse of the principle is also accepted. 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: see Housing Commission of NSW v San Sebastian Pty Ltd (1978) 140 CLR 196 at 214; 37 LGRA 214 at 228. 28 Commissioner of Succession Duties (SA) v Executor Trustee and Agency Company of SA (1947) 74 CLR 358, 374. 29 Mio Art Pty Ltd v Brisbane City Council (2010) 31 QLCR 174, 191-192. 30 (1997-98) 17 QLCR 331, 341-342. 31 Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 and Housing Commission of NSW v San Sebastian Pty Ltd (1978) 140 CLR 196. 32 For example by Kirby P in Haig v Minister (1994) 85 LGERA 143, 149-150. 33 Ipswich City Council v Wilson; Ipswich City Council v Wilson & Anor [2011] QLAC 6, [45]. 34 Haig v Minister (1994) 85 LGERA 143, 149-150. -- 16 of 65 -- 17 Thus, where it is found that there is a direct causal connection between a restriction on land use imposed by planning and land use legislation and the proposed establishment of the public works for which the land might be resumed, the extent of such restriction on the value of the land must be ignored. Behind this principle lies a search for fair valuation and an insistence upon just procedures. If it were not upheld in the determination of the value of resumed land, it would be possible for a resuming authority to use its powers and influence, in respect of such matters as zoning, to diminish the value of the land to be resumed, to its own advantage and to the disadvantage of the owner at valuation.” The majority in the Land Appeal Court noted,35 quoting the High Court in The Crown v Murphy,36 “One purpose of this principle is to ensure that a resuming authority does not employ planning restrictions to destroy the development potential of the land and then assess compensation for its resumption on the basis that the destroyed potential had never existed.” The majority in the Land Appeal Court went on to refer to “the much-quoted statement of Dixon J in Nelungaloo Pty Ltd v The Commonwealth37 as governing the approach to s 20(2)”38 of the Act: “Compensation prima facie means recompense for loss, and when an owner is to receive compensation for being deprived of real or personal property his pecuniary loss must be ascertained by determining the value to him of the property taken from him. 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 give him any enhanced value that may attach to his property because it has been compulsorily acquired by the governmental authority for its purposes (Vyricherla Narayana Gajapatiraju v. Revenue Division Officer, Vizagapatam [(1939) AC 302 at 318]. Equally you exclude any diminution of value arising from the same cause. The hypothesis upon which the inquiry into value must proceed is that the owner had not been deprived by the exercise of compulsory powers of his ownership and of his consequent rights of disposition existing under the general law at the time of acquisition.” The underlying scheme [41] It is necessary to identify what is “the scheme underlying the acquisition”,39 to use the words of Kirby P, or in Dixon J’s formulation, “the same cause”.40 The majority of the Land Appeal Court in Redland Shire Council v Edgarange Pty Ltd41 illustrated this by reference to Lord Widgery’s judgment in Wilson v Liverpool Corporation42 where his Lordship said: 35 Redland Shire Council v Edgarange Pty Ltd (2008) 29 QLCR 91, [40]. 36 [1990] 64 ALJR 593, 595. 37 (1948) 75 CLR 495, 571-572. 38 Redland Shire Council v Edgarange Pty Ltd (2008) 29 QLCR 91, [41]. 39 Per Kirby P in Haig v Minister (1994) 85 LGERA 143, 149-150. 40 Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495, 571-572. 41 (2008) 29 QLCR 91, [36]. 42 [1971] 1 WLR 302, 310. -- 17 of 65 -- 18 “Whenever land is to be compulsorily acquired, this must be in consequence of some scheme or undertaking or project. Unless there is some scheme or undertaking or project, compulsory powers of acquisition will not arise at all, and it would, I think, be a great mistake if we tended to focus our attention on the word ‘scheme’ as though it had some magic of its own. It is merely synonymous with the other words to which I have referred, and the purpose of the so-called Pointe Gourde rule is to prevent the acquisition of the land being at a price that is inflated by the very project or scheme which gives rise to the acquisition.” [42] As the Land Appeal Court said in Bowers & Anor v Pine Rivers Shire Council:43 “The first issue for decision was the application of the principle established in Housing Commission of New South Wales v San Sebastian (1978) 140 CLR 196 and developed in The Crown v Murphy [1990] 64 ALJR 593, namely that restrictions on land use as a consequence of a resumption of that land may not be employed to destroy the development potential of the land for the purpose of assessing compensation. It is the corollary of the Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 principle that a project or scheme which gives rise to a resumption cannot be used to inflate the value of the land.”44 The Land Appeal Court added that: “The effect of San Sebastian was refined in The Crown v Murphy (1990) 64 ALJR 593 at 595 ‘The principle applies in cases where there is a direct relationship between the planning restriction and the scheme of which resumption is a feature and extends to cases where there is merely an indirect relationship, provided that the planning restriction can properly be regarded as a step in the process of resumption.’ ”45 [43] In Mount Lawley Pty Ltd v Western Australian Planning Commission46 the Court of Appeal of Western Australia noted that whether the effect on value is attributable to ‘the Scheme’ can be a difficult question to answer.47 The Court referred to an example given by Jacobs J, with whom the other Justices agreed in the High Court’s decision in Housing Commission of New South Wales v San Sebastian Pty Ltd.48 Jacobs J said: “Assume an area of land on the outskirts of existing settlement, and assume a planning authority concerned to designate land uses in a planning scheme. The land is designated open space. Thereafter it is resumed for the purpose of a public reserve. The fact that the land was zoned as open space may have depreciated its value. Does the resuming authority pay compensation at the depreciated value of open space or at some other value? The question cannot be correctly answered without knowing whether there was any connexion between the zoning as open space and the subsequent resumption. If the zoning was done with the intent or in anticipation that the land should be resumed for a purpose such as a public reserve or if the zoning was proposed or dictated by the resuming authority then s 124 requires that the zoning be ignored. It is only a step in the process of subsequent resumption. But in other circumstances the resumption may be unconnected with the act of zoning. It may be 43 [2007] 28 QLCR 196. 44 [2007] 28 QLCR 196, [3]. 45 [2007] 28 QLCR 196, [22]. 46 [2007] WASCA 226 (29 October 2007). 47 [2007] WASCA 226, 17. 48 (1978) 140 CLR 196, 206-207 and quoted in Mount Lawley, 18. -- 18 of 65 -- 19 that the resuming authority selects the land for resumption as a public reserve because it is zoned open space; if it does so it is doing no more than ensuring that it, as well as others, conforms to the planning scheme. In those circumstances there is no relevant relationship between the zoning and the public purpose. No public purpose, existing or anticipated, intended, or urged by the zoning authority, leads to the zoning; rather, the zoning leads to the public purpose and consequent resumption.” The Court of Appeal then said:49 “The question of what is a ‘step in the process’ in this kind of context has since been discussed in a number of cases. Relatively recently, in Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd [2005] NSWCA 251; (2005) 63 NSWLR 407 [85] (Walker No 1) Basten JA (with whom Beazley JA and Stein AJA agreed), said that the ‘lesson of … San Sebastian … is that no narrow view should be taken of steps which may affect the value of land’. However, he added that ‘it is necessary to distinguish between conduct which constitutes a proper exercise of planning powers irrespective of the ultimate resumption and a use of planning powers in pursuit of a proposed resumption’.” [44] The legislative structure in Western Australia is different to that in Queensland so the decision of the Western Australian Court of Appeal must be understood in view of the situation in that State, where the resuming and the planning authority will be the same entity50 and the scheme was by definition the town planning scheme.51 The Court of Appeal said: “29 It is true that a Scheme is ‘a progressive thing’. However, as we have said, the step or occurrence affecting value must be ‘attributable’ to the Scheme itself and not (as we understand s 36(2b)) to some different, or as yet unformed, notion that ultimately led to the creation of the Scheme. A step must be attributable to the Scheme, not the Scheme to a step. That is to say, the step must have been taken in order to bring about the Scheme itself, or a variant of it that is not materially different. As to this last proposition, it seems to us that a step may be attributable to a Scheme even if the form which the proposed Scheme then took differed from that which the Scheme ultimately took, so long as the difference is not such as to lead to the conclusion that the Scheme ultimately created was not substantially that which had been proposed. It also seems to us that the step must be taken with the intention of facilitating the Scheme or for the purpose of creating it, if it is to be attributable to the Scheme. So, for example, some proposed general planning consideration that may or may not lead to a Scheme of the kind ultimately implemented could not be said to be attributable to the Scheme merely because, as matters turned out, a Scheme which adopted that planning consideration was subsequently implemented (cp the approach taken in respect of the different legislation in San Sebastian). 30 Also, the words ‘attributable to the Scheme’ plainly have the consequence that the effect on value of characteristics or location of the land, or other factors affecting the land (such as population pressures), which always had the capacity to enhance, or reduce, its prospects of development and hence its value are not to be disregarded merely because they led, ultimately, to the Scheme. That is so even if they are specifically identified, or otherwise referred to, by the Scheme: see in this respect the approach adopted (albeit in the context of different legislation) by Basten JA in Walker No 1. The same is true of inherent characteristics of, or other facts affecting, land that is adjacent to the subject land, so far as those characteristics or factors are 49 [2007] WASCA 226, 20. 50 [2007] WASCA 226, 4, 5, 6. 51 [2007] WASCA 226, 7. -- 19 of 65 -- 20 capable, independently to the Scheme (and its steps), of affecting the development potential, and hence the value, of the subject land. Regard to characteristics and factors of either kind might lead a hypothetical, informed purchaser to anticipate, independently of the Scheme and its steps, an outcome similar to that which in fact happened as a result of the Scheme. In such a case the Scheme (or knowledge of steps leading to it) may have no impact on the value of the land.”52 (References omitted.) [45] The decision in Mount Lawley Pty Ltd v Western Australian Planning Commission does not support a conclusion in the Queensland context that for a step to be attributable to the scheme it must be taken with the intention of giving effect to the scheme. [46] In Melwood Units Pty Ltd v Commissioner of Main Roads,53 on appeal from the Full Court of the Supreme Court of Queensland, the Judicial Committee of the Privy Council considered a case where the resuming authority was a different entity to the planning authority. The Judicial Committee accepted as a finding of fact the uncontradicted and unchallenged evidence that but for the expressway project an application to develop the whole of the land, including the resumed land, for a shopping centre would have been approved.54 Their Lordships said: “Under the Pointe Gourde principle (see Pointe Gourde Quarrying and Transport Co. Ltd. v. Sub-Intendent of Crown Lands, [1947] A.C. 565) the landowner cannot claim compensation to the extent to which the value of his land is enhanced by the very scheme of which the resumption forms an integral part: that principle in their Lordships’ opinion operates also in reverse. A resuming authority cannot by its project of resumption destroy the potential of the whole thirty-seven acres for development as a drive-in shopping centre, and then resume and sever on the basis that that destroyed potential had never existed. Moreover, in their Lordships’ opinion the principle remains applicable in a case such as the present, notwithstanding that planning permission had not been given for the whole thirty-seven acres and would not have been given, when the lack of such permission was manifestly due to the expressway project, and it is established that, without the expressway project, such planning permissions would have been given for the whole thirty-seven acres. To hold otherwise in this case would enable the acquiring authority to inflict by its project the same injustice at one remove.”55 [47] Under the legislative scheme in place in Queensland, it would not be necessary that the step in the process of resumption be taken by the resuming authority itself.56 [48] In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority57 the High Court considered that “the proposal” was linked, and confined, to that of the resuming authority.58 What was to be disregarded included: 52 (2007) WASCA 226, 29, 30. 53 (1978) 52 ALJR 593, 37 LGRA 387. 54 52 ALJR 593, 595 RHC, E, F. 55 52 ALJR 593, 596 LHC C, D, E. 56 Mahoney & Ors v Chief Executive, Department of Transport and Main Roads (No. 3) [2013] QLC 11 [27], [46]. 57 (2008) 233 CLR 259. 58 (2008) 233 CLR 259, 277 [54]. -- 20 of 65 -- 21 “(a) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired … .”59 The headnote accurately reflects that this provision: “… linked ‘the proposal’ to the resuming authority and reflected a policy to disregard only the increase or decrease in value for which the resuming authority itself was responsible.”60 This legislative scheme differs from that applying in Queensland. The limitation identified by the High Court is not part of the law in Queensland, which limits the usefulness here of Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority.61 This situation was recognised by the Land Appeal Court in Ipswich City Council v Wilson.62 [49] In AMP Capital Investors Ltd & Anor v Transport Infrastructure Development Corporation63 the New South Wales Court of Appeal was concerned with the same legislation considered in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority.64 In that case the Court of Appeal considered a requirement that compensation not be less than the market value of the land that was acquired, even if there was an enhancement in the value of other land.65 This was because of the terms of the particular legislation being considered,66 which is in this respect different to the Queensland Act.67 Section 20(3) of the Queensland Act requires that any enhancement be taken into account. It was held that the planning changes should be disregarded for the purposes of the statutory provision which mandated that enhancement of other land be considered.68 [50] In Department of Transport and Main Roads v Mahoney the Land Appeal Court said: “[43] We respectfully agree with the reasoning of the Land Appeal Court in Edgarange. Accordingly, we consider that in determining the value of land in accordance with s 20(1) and s 20(2) of the Act, this Court should ignore any diminution in value to the land caused by planning restrictions where there is a direct relationship between the planning restriction and the scheme of resumption or, if there is merely an indirect relationship, where the restrictions can properly be regarded as a step in the process of resumption.”69 59 Land Acquisition (Just Terms Compensation) Act 1991, NSW s 56(1)(a) (2008) 233 CLR 259, 275 [49]. 60 (2008) 233 CLR 259. 61 (2008) 233 CLR 259. 62 (2011) 32 QLCR 357, 366 n. 21. 63 [2008] NSWCA 325, 163 LGERA 245. 64 [2008] 233 CLR 259. 65 AMP Capital Investors Ltd & Anor v Transport Infrastructure Development Corporation 163 LGERA 245, 261 [63]. 66 Section 3(1)(a) and s 10(1)(a) which are set out at 163 LGERA 245, 252 [19]. 67 Commissioner for Railways v Buckler (1996) 1 Qd R 18, 25, L2-5. 68 163 LGERA 245, 268 [100]. 69 [2014] QLAC 1. -- 21 of 65 -- 22 Planning Scheme overtaken by events [51] The applicant draws attention to s 329 of the Sustainable Planning Act 2009. Section 329(1)(b) provides that the decision on an application for preliminary approval must not conflict with the planning scheme unless: “(b) there are sufficient grounds to justify the decision, despite the conflict; …” [52] This provision reflects the pre-existing situation that a planning scheme, so far as the particular site is concerned, may have been overtaken, indeed been permitted to be overtaken, by events.70 Rezoning of vicinal land may result in land having a zoning which has been overtaken by events.71 The agreed issues Issue B.1. With respect to traffic and access issues: (a) what would the hypothetical purchaser have considered to be the likelihood of obtaining appropriate access for playing field use? [53] The issue of access is central to the respondent’s case. It was consistently pressed at the hearing that, at the date of resumption, any development of the land beyond its existing type of use required access across other land. This was stressed as a fundamental obstacle to development that would have alarmed a prudent purchaser. In this connection the words of Judge Jones DCJ on 28 February 2012 and which have already been quoted are again apposite. Referring then to the proposed loop road, His Honour characterised it as having property requirements: “… simply beyond the jurisdiction of this Court, involving as it does, land held in private ownership.”72 [54] The respondent submits that the position which it had taken as landowner would have been clear to a potential purchaser who would not have been able to expect it to allow access through its land to facilitate a private development. In addition, Comiskey having resolved its supermarket appeal by switching to a smaller development, would not have been expected to allow use of its development land to provide access to South Pine Road. [55] Existing access to the land is described in the joint report of the traffic engineers as follows: “2. The subject site currently gains all vehicular access via a short service road on the eastern side of South Pine Road, between the signalised intersections of South Pine Road with Eatons Crossing Road in the north and with Bunya Park 70 Handley v Brisbane City Council and Pike Mirls McNoulty Pty Ltd [2004] QPEC 39, [13]. 71 Plafaire Projects Australia Pty Ltd v Council of the Shire of Maroochy & Anor [1991] QPLR 87, 88 where the future of land was affected by rezoning of adjoining land. Grosser & Anor v Council of the City of Gold Coast (2001) 117 LGERA 153, 165. 72 Exhibit 7 1-5 L 10-20. -- 22 of 65 -- 23 Drive in the south. This service road has only left turn access to and from South Pine Road, between the two signalised intersections.”73 [56] Mr Beard, the traffic engineer engaged for the applicant, gave evidence that the land could be operated as playing fields for a school or club with its current access: “… but it would still be highly desirable to have some sort of integrated access via the – the private road that’s sometimes called Cribb Road.”74 He saw the existing access as “not ideal”,75 an expression which he used three times in his reply to questions about this in examination-in-chief. [57] Mr Douglas, the traffic engineer for the respondent, agreed subject to a need for a traffic plan to deal with peak demand situations.76 He saw it as “probably appropriate”77 for general playing fields. He described the risk related to access as “relatively low” so long as the usage was not “substantially more intense”78 than the existing use. Conclusion on issue B.1(a) [58] The evidence supports the conclusion that access existing at the date of resumption would be seen as appropriate for use of the land for “general playing fields”79 where the use is not for something substantially more intense than the existing golf course use. Issue B.1 (b) what would the hypothetical purchaser have considered to be the likelihood of obtaining appropriate access for development in accordance with the Ovenden Plan? [59] The traffic engineers were in agreement that the existing access would not be suitable for the type of mixed use development contemplated by Mr Ovenden. The applicant contended that the hypothetical purchaser would have considered that there were good prospects of obtaining suitable access to allow for this development. It points to two alternative means to resolve the access problem, the southern and the northern loop roads. [60] Access to the land by means of a Southern Loop Road was considered in the Comiskey appeal. There was a sprocket of traffic engineers, Mr McClurg for Comiskey, Mr Douglas for the Council, Mr Beard for Ms George and Mr Pekol for the Department of Transport and Main Roads. In their second joint report on 5 April 2011 they stated: “Mr Beard noted that he has been advised that, if the subject development is approved, it will adversely impact on the viability of continued usage of the golf course on the land immediately north and east of the subject site, and that it is 73 Exhibit 1 Volume 2, 57. 74 T 3-20 L 20-50. 75 T 3-20 L 34, L 44, L 45. 76 T 5-87 L 44 / 5-88 L 1-32. 77 T 5-27 L 6. 78 T 5-27 L 10-11. 79 T 5-27 L 5. -- 23 of 65 -- 24 important that the subject development, if approved, should make appropriate provision for an internal loop road link (dedicated road or easements) between the signalised intersections on South Pine Road at Bunya Park Drive and Eatons Crossing Road. Such a loop road would provide coordinated access to all of the potential development lands east of South Pine Road. It was agreed by Mr Douglas, Mr Pekol and Mr Beard that such a loop road would enable the most efficient usage of the two signalised intersections, and reduce or eliminate the need for U-turns at the critical signalised intersections which would be generated by developments between these two intersections (not by the subject development). Further, it could reduce or eliminate the need for separate driveways to any such developments, and could even eliminate the need for the existing eastern service road in this area, thereby providing more road space for future upgrading of South Pine Road. It was noted that the extension of Eatons Crossing Road (east of South Pine road) was a driveway constructed on Council-owned land, and that if any such loop road (as indicated above) were to proceed it would necessitate the dedication (or the provision of an appropriate easement) over the western end of this driveway (eastern extension of Eatons Crossing Road), which provides access to Council’s sporting complex further to the east and north-east. All experts agreed that if the adjacent land to the north was to develop for commercial/related purposes in the future then it would be appropriate to provide a satisfactory connection (dedicated road or a system of reciprocal easements) between the approved internal private roadway (eastern extension of Bunya Crossing Road) and the aforementioned driveway (eastern extension of Eatons Crossing Road). Mr McClurg is of the view that arrangements for providing improved access for the land immediately north and east of the subject land should not reasonably be the subject of this appeal, nor the responsibility of the subject application. Mr Douglas believes that given this matter relates to a refusal, and the area had not been planned to accommodate a retail centre, it is reasonable to seek to establish, or at least not prejudice, connections between adjoining properties, such that they could be developed in an orderly manner. Mr Beard further noted the proposal as it currently stands would leave the Golf Course with limited access options were any further applications to develop the land be made in future.80 [61] The traffic engineers produced a further joint report on 6 July 2011. There, it was stated that: “Further, Mr Douglas and Mr Beard agreed with Mr Pekol’s suggestion that the overall management plan would logically make provision for two lane right turns off South Pine Road at the two relevant intersections, as well as not prejudice the provision of appropriate access to all adjacent sites.81 … 11. Supermarket Expansion Zone & Vacant Land … 80 Exhibit 1 Volume 3, 447, 451-452. 81 Exhibit 1 Volume 3, 566, 570-571. -- 24 of 65 -- 25 Mr Pekol, Mr Douglas and Mr Beard reiterated their fundamental concerns regarding the ability of the current proposal’s traffic impacts to be accommodated, and that if the shopping centre was approved in its current form, any further development would simply exacerbate already unsatisfactory conditions. They agreed that satisfactory upgrading works for the subject development 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 subject site.82 … 14. Connection to Adjoining Land Mr Beard noted that he has been advised that, if the subject development is approved, it will adversely impact on the viability of continued usage of the golf course on the land immediately north and east of the subject site, and that it is important that the subject development, if approved, should not prejudice future appropriate provision for an internal loop road link (dedicated road or easements) between the signalised intersections on South Pine Road at Bunya Park Drive and Eatons Crossing Road. Such a loop road would provide coordinated access to all of the potential development lands east of South Pine Road. Mr Beard, Mr Pekol and Mr Douglas have suggested that the applicant should produce a concept master plan or traffic structure plan which demonstrates that the subject development does not prejudice the future development of an overall traffic management plan for the precinct. It was agreed by Mr Douglas, Mr Pekol and Mr Beard that such a loop road would enable the most efficient usage of the two signalised intersections, and reduce or eliminate or reduce the need for U-turns at the critical signalised intersections which would otherwise be generated by developments between these two intersections (not by the subject development). Further, it could reduce or eliminate the need for separate driveways to any such developments, and could even eliminate the need for the existing eastern service road in this area, thereby providing more road space for future upgrading of South Pine Road. It was noted that the extension of Eatons Crossing Road (east of South Pine Road) is a private driveway constructed on Council-owned land, and that if any such loop road (as indicated above) were to proceed it would necessitate the dedication (or the provision of an appropriate easement) over the western end of this driveway (eastern extension of Eatons Crossing Road), which provides access to Council’s sporting complex further to the east and north-east. Mr Douglas advised that he understood Council was not in favour of such a dedication. All experts agreed that if the adjacent land to the north was to develop for commercial/related purposes in the future then it would be appropriate to provide a satisfactory connection (dedicated road or a system of reciprocal easements) between the approved internal private roadway (eastern extension of Bunya Crossing Road) and the aforementioned driveway (eastern extension of Eatons Crossing Road). Mr McClurg is of the view that arrangements for providing improved access for the land immediately north and east of the subject land should not reasonably be the subject of this appeal, nor be the responsibility of the subject application. Mr Douglas noted that, given this matter relates to a refusal, and the area had not been planned to accommodate a retail centre, it is reasonable to seek to establish, or 82 Exhibit 1 Volume 3, 566, 575. -- 25 of 65 -- 26 at least not prejudice, connections between adjoining properties, such that they could be developed in an orderly manner.”83 [62] In his individual report in the Comiskey appeal, Mr Douglas wrote: “ 78. … it is my view that if a retail or commercial node is to emerge on the eastern side of South Pine Road, that a fully considered ‘structure plan’ or at least a traffic master plan aimed at creating an integrated centre is required. … 80. I maintain that if the Court is to contemplate allowing the proposed shopping centre development, as a minimum, such planning first needs to be undertaken and accepted by both Council and TMR. 5.8 Connection to the Adjoining Land 81. Related to the above issue is the absence of any access easement or dedicated road allowing for a future road connection to the adjoining land to the north. … 83. In my opinion, if the proposed shopping centre is approved as shown in Annexure E, without modification and without at least the establishment of an access easement in favour of the land to the north, it is likely that the potential to develop an integrated traffic and pedestrian network will have been lost.84 [63] Mr Douglas was not an advocate of the Southern Loop Road in the present case; the present respondent’s resolution of 8 November 2011 made its position clear that it would not agree to the use of its private road. The applicant’s criticism of Mr Douglas for, in effect, changing his previous position in respect of this matter needs to be understood in the light of the respondent’s resolution on 8 November 2011. [64] On 31 May 2012, His Honour Judge Jones granted Ms George leave to withdraw from that appeal once the land was resumed.85 [65] That appeal, which but for traffic issues would have been allowed, was dismissed on 15 November 2012.86 The Comiskey Group obtained approval for a smaller shopping development on its land. As His Honour Judge Jones noted, the respondent Council and the Department of Transport and Main Roads represent the public interest and Ms George’s contention that the loop road was in the public interest can be seen in the context of the wider considerations of bodies considering what may be in the public interest. It is also a powerful consideration that, as His Honour noted, land required for the loop road, being in the respondent’s private ownership, was beyond the jurisdiction of the P and E Court. 83 Exhibit 1 Volume 3, 566, 576-577. 84 Exhibit 1 Volume 4, 814, 833. 85 Exhibit 1, Volume 5, 1180. 86 Exhibit 1, Volume 5, 1276. -- 26 of 65 -- 27 [66] A prudent purchaser would consider the Comiskey appeal to be an example of a potential development made impossible by a landowner refusing to cooperate on access. A prudent purchaser at the date of resumption would have been aware of the events in the Comiskey appeal. If the approach of the Council’s traffic engineer in the Comiskey appeal would have given comfort to a potential purchaser of the subject land then the Council’s resolution of 8 November 2011 and the subsequent fate of the Comiskey appeal do not simply result in the removal of any cause for optimism but go further and would be realistically seen as requiring the purchaser to proceed on the basis that the respondent 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. [67] The respondent points to what it says is a consistent position in respect of a loop road. Its points are collated in Exhibit 10A and will now be considered. [68] In Ms George’s statement, which became Exhibit 5 for the applicant, she explains that she is currently the sole director and secretary of the applicant company. She is also an equal shareholder with her husband. At paragraph 21 she states that on 15 February 2007 Mr Rae, from the respondent, had telephoned her and advised that Councillor Charlton had, at a meeting with the Comiskeys indicated that he “was not supportive of us or the Comiskeys using the Council’s private Cribb Road”.87 [69] In the notice of appeal filed on 21 October 2008 against the deemed refusal of the respondent to approve the hotel/motel development it is stated that: “The option of gaining access from Cribb Road has not been considered in detail as Council is not supportive of such a connection and it is likely that the connection will encourage rat-running and potentially higher traffic volume at the South Pine Road/Bunya Park Drive intersection.”88 [70] On 10 March 2010 Ms George attended a pre-lodgement meeting where Councillor Charlton said he would oppose development of the golf course and would not support giving access to the Council’s private road.89 The Councillor stated that he opposed residential development as lighting from the Council’s sports fields would be a source of complaints.90 The Councillor proposed that Ms George sell the top half of the golf course to a school. On the question of access issues for a school the Councillor said it complimented the sporting fields.91 [71] On 16 March 2010 Ms George wrote to the Mayor of the respondent council enclosing a letter she wrote to the Honourable the Minister for Local Government and Town 87 Exhibit 5, 21. 88 Exhibit 1 Volume 3, 275 13. See also Exhibit 1 Volume 2, 64. 89 Exhibit 5, 47. 90 Exhibit 5, 47. 91 Exhibit 5, 48. -- 27 of 65 -- 28 Planning. The letter expressed a number of concerns, including that the approval of the Comiskey development, then under construction, had attendant conflict due to flying golf balls. The Comiskey Group, the letter stated, had threatened that they “will close us down”.92 The letter also stated: “The Comiskey Group has offered to purchase our property but have only offered very little as they claim Council will never let us develop. Further they have stated they will oppose any redevelopment on our land in the courts as it will impact on their development. We do not see how this would impact on their development when indeed they have a residential component themselves. The Comiskey Group have now made an application for a Woolworths and shops on the remainder of the site, which if passed like the last, will mean our golf course is totally unviable. It is our belief the Comiskey Group are trying to cheaply gain our land for their benefit by making our existence as a golf course unviable and making redevelopment of our land by ourselves very difficult.”93 [72] The letters from Ms George to the Mayor and the Minister asked for assistance in finding a “reasonable solution”.94 [73] The respondent’s Chief Executive Officer replied to Ms George and the Minister on 13 April 2010. This letter stated, in part: “Use of Entry Driveway to Council’s Sporting Complex for Access to your Golf Course The entry driveway to Council’s sporting complex is not a dedicated road and is only an entry driveway. Cribb Road is located further north along South Pine Road from the entry driveway. At this point in time, Council has no plans to dedicate the entry driveway as road. Redevelopment of your Golf Course In relation to your desire to redevelop the golf course for residential uses I note that the site is zoned ‘Sport and Recreation’ and that the same zoning existed under Council’s former 1988 planning scheme. Accordingly, Council’s planning documents have, for some time now, identified the site for sport and recreation uses and not urban development. However, the Sustainable Planning Act 2009 provides a mechanism for landowners to apply for a ‘material change of use’ should a landowner want to do something on their land that is not ‘as of right’ or ‘self assessable’. You will need to seek your own town planning/legal advice in that regard.”95 92 Exhibit 9A. 93 Exhibit 9A. 94 Exhibit 9A. 95 Exhibit 9. -- 28 of 65 -- 29 [74] On 9 February 2011 an e-mail was sent from the council’s senior legal officer to its traffic engineer, Mr Douglas. It contained the following instruction: “In telephone conversations with Dawn George she said she may be interested in settling this appeal on the basis that she and the Comiskey Development are given access through Cribb Road. This is not acceptable to Council, and Council will not agree to this.”96 [75] In his evidence Mr Douglas said: “But I was certainly aware, when I was engaged by council on the Comiskey matter – I think when I was briefed, I was told that council didn’t want to entertain any access to the sports access road.97 … So I would be warning a prudent purchaser that, you know, it would be a tough fight in this instance to improve on the access that the site currently has with limited prospects. Unlikely that you would get there.”98 [76] On 6 July 2011 in the third joint report of the traffic engineers in the Comiskey appeal: “Mr Douglas advised that he understood Council was not in favour of such a dedication.”99 [77] On 8 November 2011, after the decision of His Honour Judge Jones DCJ on 24 October 2011, the respondent formally resolved that it did not agree to its private road connecting South Pine Road to its sporting complex: “being gazetted as a public road, or having connections to it from the subject site or other adjacent land.”100 This action was taken in order: “To provide some certainty for the traffic plans to be prepared to address the issues raised in the Judgment.”101 [78] Correspondence from the respondent to the Comiskeys was disclosed to the applicants. In Exhibit 5 Ms George states: “In or around February 2012, I telephone (sic) an existing Councillor, who was intending to run for Mayor, Cr Chris Whiting. During that conversation, Cr Whiting told me that the Comiskey’s were threatening the Council that they were going to try to stop the resumption by purchasing the golf course land before it was taken. As part of these proceedings, the Council disclosed correspondence (unsigned and undated) addressed to the Comiskey’s, which seems to confirm this. The correspondence referred to the Comiskey’s intending to offer me $7 million for the golf course land. Attached and marked DG24 is a copy of the correspondence.”102 96 Exhibit 25. 97 T 5-32 L 25-27. 98 T 5-33 L 39-42. 99 Exhibit 1 Volume 3, 577 and footnote 83 supra. 100 Exhibit 1 Volume 5, 1109. 101 Exhibit 1 Volume 5, 1108. 102 Exhibit 5, 74. -- 29 of 65 -- 30 [79] That correspondence contains the following passage: “Council has consistently stated that it doesn’t intend to have access from either your development or that of the adjoining Dawn George property entering through the South Pine Sporting complex entry on to South Pine Road opposite Eatons Crossing Road. The simple fact is that the sporting complex, when fully developed, will have its own traffic generation issues to manage without complicating that matter further by encouraging commercial traffic from the adjoining properties that also use that access point. 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. As I understand the Court’s direction, your traffic expert has to devise a scheme by which you can manage the traffic generated by your proposed development including traffic already generated from the site, both within and external to the site. Council has no issue with your supermarket development if that traffic management plan can be achieved. 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 the errant golf balls that come 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 have 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.”103 [80] On 28 February 2012 His Honour Judge Jones made an order in the Comiskey appeal excluding the loop road as a traffic solution.104 [81] Mr Beard, the applicant’s traffic engineer, said when cross-examined about whether the respondent’s position of not allowing access by its private road was a recent position: “No. I was under the impression that Council had, over a number of years, expressed the desire to maintain the private road for its private use only. I had been aware that Council thought that over a long period of time.”105 [82] Mr Beard’s chronology shows that situation dating from October 2008. A connection was said to be likely to encourage rat-running.106 103 Exhibit 5, 349-350. 104 Exhibit 1 Volume 5, 1167. 105 T 3-59 L 2-4. 106 Exhibit 1 Volume 2, 64. -- 30 of 65 -- 31 [83] Mr Beard said that: “Over a long period of time, it is clear that council was opposed to use of the private road for anybody else.”107 He said that as a traffic engineer he questioned whether this was a sound planning decision or a decision taken as a landowner.108 He did not see it as a decision based on sound traffic engineering advice.109 [84] A properly advised potential purchaser would be aware, the respondent stresses, that its decision as a landowner not to allow its private road to be used for access is not subject to challenge in a planning appeal. This is a matter that would be very significant to a purchaser. [85] The respondent does not rely solely on its rights as a landowner. It also submits that its position in regard to its private road is supported for sound planning reasons. Mr Ovenden expressed the opinion that as a matter of town planning the highest and best use was the mixed use development which was referred to as the Ovenden Plan.110 In this plan areas were selected for retail/commercial uses closest to the South Pine Road, with residential areas immediately to the east of that and recreation/open space furthest to the east.111 Mr Ovenden accepted that a role of local government was to protect its land for community purposes such as sport and recreation, which might not be the highest and best use.112 He accepted that it could be a legitimate role of the Council not to allow its sport and recreation land to be used for access for the development of other land.113 [86] Mr Ovenden agreed that the respondent had made the protection of land in this area for sport and recreation a priority by zoning it accordingly and by acquiring and developing land for those purposes.114 He did find it “a bit surprising115 that the respondent was seeking to have 6,500 m² of retail development, whether it was associated with sport and recreation or not. He was also surprised that it did not seek an integrated access outcome.116 Mr Ovenden agreed that it was proper for the respondent to consider whether it should allow traffic unrelated to its sports complex to move freely through it.117 Mr Douglas, the respondent’s traffic engineer, considered it appropriate to limit traffic to that 107 T 3-60 L 21-22. 108 T 3-60 L 22-24. 109 T 3-62 L 6-7. 110 Exhibit 1 Volume 2, 163, 167, 3.3.1. 111 Exhibit 1 Volume 2, 172. 112 T 3-94 L 15-30. 113 T 4-5 L 5-11. 114 T 4-4 L 40-45. 115 T 4-22 L 21-26. 116 T 4-22 L 21-26. 117 T 4-24 L 45 / 4-25 L 2. -- 31 of 65 -- 32 associated with the sporting complex for its functional efficiency and user safety where users would include a significant number of children.118 [87] Mr Beard accepted that the respondent’s private road was a potential source of liability in the case of accidents.119 It was not constructed to the Council’s standards for a public road, it had no kerbing or footpaths and there was inferior stormwater infrastructure, i.e. an open drain. The intersection with South Pine Road was theoretically over capacity during peak periods of use.120 The pavement would have to be of a standard to cater for service vehicles and there would be costs of footpaths, kerbing and lighting.121 [88] Mr Beard’s evidence was that the Council would need to have traffic moving throughout the sporting complex land in order to have any sort of sensible integration.122 Night time security of the sporting complex is assisted by the ability to have a gate on the private road, which is intended to prevent rat-running.123 [89] The concern which the respondent had with rat-running was part of a wider problem. At its meeting on 13 December 2011 the respondent considered a recommendation from its senior project manager to temporarily close the western part of Cribb Road, the real Cribb Road, at the northern entry to its sports complex and to construct a gate there. The gate was to be controlled by the lessee of the sports complex. Keys were to be held by Energex, the sports association and the Wantima Country Club so that they could access their land via the gate which would be closed unless the lower sports fields were in use. They agreed to this. The report provides some detail about why the gate was seen as necessary and was agreed to by those affected by it. [90] The respondent had received complaints that the road was being used at night and on weekends for drag racing. There had also been several incidents of vandalism and theft at the sports complex. This had included:  attempted theft of a contractor’s excavator;  theft of rock from the swale drain;  theft of copper cabling from the lighting conduits; and  wheel burn-outs on the newly installed turf.124 The respondent adopted the recommendation to temporarily close the road and to construct the gate and signage at a cost of $11,600.125 118 Exhibit 1 Volume 2, 221, 27, 28. 119 T 3-67 L 13-14. 120 T 3-67 L 20-45. 121 T 3-76 L 19-29, T 5-30 L 20-33 per Mr Douglas. 122 T 3-74 30–46. 123 T 3-76 L 1-2, T 5-31 L 22/T5-32 L 14. 124 Exhibit 11. 125 Exhibit 11. -- 32 of 65 -- 33 [91] Mr Beard thought that if ultimately there was development and the traffic using Cribb Road was busier then that would improve security. This was an assumption.126 Mr Simonic, the town planner called by the respondent, noted that the gate on Cribb Road is generally locked to prevent through traffic.127 Mr Douglas was aware of the rat-running and saw it as preferable to avoid mixing other traffic from residential or shopping centre areas with traffic associated with the sporting complex.128 Mr Simonic explained that there were town planning reasons to keep sporting centre traffic segregated from other traffic to avoid conflict and to allow for the presence of young children on the sporting site.129 [92] Mr Douglas made the point, about the prospects of the applicant obtaining access with the cooperation of Comiskey, that: “I’d struggle to see why you would expect a developer to give a leg up to an adjoining developer.”130 In relation to what he would advise a prudent purchaser about the prospects of getting Council consent he replied: “I think that would be very low. I think they’re on the record as not wanting to provide access across the sport and rec land. It is future sport and rec land that they’ve been working on for a period of time and I think once you open that up to again interface, issues of commercial or residential traffic using a sporting complex road network, it introduces a whole raft of issues that they can otherwise avoid having to deal with.131 [93] Mr Douglas would have advised a prudent purchaser that it was highly unlikely that Comiskey would consent to facilitating access for a development of the land as it could cause problems for their own development, such as noise complaints132 and conflicts with traffic on its own development.133 Obtaining access to the land by a northern loop road [94] The applicant points to what it contends is an alternative access for the land, a northern loop road as part of the respondent’s own application to itself for preliminary approval for its proposed development of its sporting complex. This seeks a material change of use to override the Pine Rivers Plan, the land being zoned for sporting and recreation use, special facilities and rural.134 It was lodged on 15 June 2012,135 just ahead of the 20 July 126 T 3-78 L 20-47. 127 T 6-7 L 20-22. 128 Exhibit 1 Volume 2, 221, 27, 28. 129 T 6-6 L 18-25. 130 T 5-29 L 45-46. 131 T 5-30 L 6-11. 132 T 5-29 L 5-11, T 5-29 L 34-37. 133 T 5-29 L 16-24. 134 Exhibit 1 Volume 6, 1294, 1300. 135 Exhibit 1 Volume 6, 1293. -- 33 of 65 -- 34 2012 resumption. The applicant says that the respondent would have imposed on itself, as a condition of approval of its application, a condition requiring it to provide access to the land to the south, including the subject land. Mr Beard supported this. He said that the respondent, as a planning authority, would have imposed a condition on an approval that it make provision for access for land to the south.136 He acknowledged that: “As a landowner, they would clearly have a different view.”137 Mr Beard saw that there: “… was obviously a much greater risk …”138 if the development application was not being made at the same time. [95] The view held by Mr Douglas, that the mixing of uses weighed against the likelihood of such a condition being imposed, is said by the applicant to overlook that the respondent’s own proposal is for mixed uses with commercial activities, albeit those related to the sports complex and therefore complementary to it.139 Mr Douglas said he would advise that a town planner be consulted about this.140 [96] The applicant accepts that at the resumption date the respondent was at an early stage in regard to extending its sports complex onto the land, referred to as the Murphy land, but points out that it had spent $6,855,000 acquiring the land as well as the costs of making the application. While, at the date of the hearing, the application remains undecided, which is said by the applicant to be curious and unexplained, it also submits that a hypothetical prudent purchaser would, at the date of resumption, have been extremely confident that the Master Plan would have proceeded in a timely manner. A purchaser would also expect, the applicant submits, that the commercial precinct along South Pine Road would be developed early in the piece as it was going to assist in funding the project. The purchaser would, it says, be confident that the respondent would have been required to provide access for land to the south, including the subject land. [97] The applicant says that the respondent could not refuse access via a northern loop road simply because it was the landowner. The respondent disagrees and maintains that it has the right to use the land as it sees fit for what it determines to be in the community’s best interests. [98] The respondent submits that its concerns about the prevention of rat-running, extra traffic, the cost of upgrading its private road and safety of users of the sporting complex would remain relevant considerations if the land was being considered for development 136 T 3-30 L 32-34. 137 T 3-30 L 34-35. 138 T 3-30 L 39. 139 T 5-70 L 19-38. 140 T 5-71 L 39. -- 34 of 65 -- 35 for playing fields. There would equally not be any basis for a reasonable level of confidence that the respondent would allow access via its sporting complex. [99] The hypothetical prudent purchaser, considering an unconditional cash contract, would have considered the existing zoning and the need to show the need for the uses of the land in the Ovenden Plan. In this context the purchaser would know that the original Comiskey supermarket proposal was unsuccessful due to the absence of an appropriate traffic solution. His Honour Judge Jones DCJ had said on 28 February 2012, in a case where he had found that there was a clear public need for the proposal and the only limitation was a satisfactory traffic solution that some of the property requirements associated with the loop road are beyond the jurisdiction of the P and E Court as it involves land held in private ownership.141 Increased development potential required an integrated traffic solution, a loop road.142 [100] There is a veterinary clinic adjoining the land and the respondent’s private road. There was no evidence that the owner of the clinic land would provide any access by a loop road.143 The respondent’s position was clearly against providing its land for a loop road and the Comiskeys had their own interests as developers to protect. They were not interested in providing access to the land unless they got something out of it.144 [101] As of August 2011 it was known that the Comiskeys and their consultant saw the potential for a loop road as “an imposition”145 on their development rather than an opportunity to resolve traffic planning difficulties. It would reduce the capacity and convenience of access to their own development.146 The Comiskey group could be expected to be very difficult to deal with as they already have all movements access to South Pine Road. They would be highly unlikely to agree unless there was compensation either by way of providing works which they wanted or payment of money.147 Mr Douglas would have advised the purchaser of the likely position of the Comiskeys, who agreed ultimately to a smaller development rather than agree to a traffic master plan. Exhibit 20 shows the extent to which their subsequently successful amended application was for less than their original application. It shows that: 141 Exhibit 7. 142 Exhibit 1 Volume 2, 202, T 3-38 L 1-15, T 3 – 79 L 24-26, T 5-27 L 13-25. 143 T 3-39 L 32-34. 144 T 3-33 L 14-24. 145 Exhibit 1 Volume 2, 66. 146 T 5-97 L 44/5-98 L 13. 147 T 5-27 L 45/5-28 L 1-9. -- 35 of 65 -- 36 “COMPARISON OF SHOPPING CENTRE’S – LOT 32 ON SP203645 Original Application (refused) - Amended Application (approved) Supermarket GLA 3,200 m² 2,500 m² Specialties 1,374 m² plus 20m² Kiosk 1,200 m² Plus 350m² dining as part of the motel Gymnasium 2,000 m² 250 m² Motel (Rooms) 67 (adjacent lot) 75 Car Parks 394 (Motel excluded) 360 (Includes Motel and caretaker – 77) ” [102] A loop road on the Comiskey land would have introduced design issues such as the configuration of car parking even if no other cost was involved.148 Additionally, the Comiskeys would have had to deal with the other landowners.149 A loop road as shown on the Ovenden Plan150 would be subject to design constraints due to existing stormwater detention basins on the Comiskey land.151 [103] The purchaser would be aware that the Comiskeys would be likely to be concerned about introducing a conflict for traffic leaving their tavern development.152 There would also be a need to apply to the Council and the Department of Transport and Main Roads to change the existing conditions of approval of the tavern development.153 [104] By agreeing to the access and making the development of adjoining land possible, it could result in development which causes problems for the Comiskey development, such as noise complaints from a residential area.154 [105] The fact that the respondent’s private road is not a gazetted road would require investigation by the purchaser of the prospects of using it and would result in gaining the knowledge that the respondent was firmly set against it being used for access to other developments. The issues around rat-running, theft and other antisocial behaviour and the respondent’s use of gates to control access would be very relevant. The Council’s wish to continue to have this control mechanism would be very apparent as would its likely concern about users of the sporting fields being protected as far as possible from traffic hazards. The potential costs of upgrading the private road and other necessary roadworks would be relevant.155 Mr Douglas was of the view that the expected 420 vehicles per hour 148 T 3-41 L 34-35. 149 T 3-41 L 37-46. 150 Exhibit 1 Volume 2, 258. 151 T 3-55 L 45/T 3-55 L 17. 152 T 5-29 L 16-28. 153 T 3-42 L 41/T 3-43 L 6, T 5-29 L 30-34, T 4-26 L 34-38. 154 T 3-43 L 18-22, T 5-29 L 1-11, T 5-29 L 34-46, T 4-26 L 40-46. 155 Exhibit 1 Volume 2, 224 50-55. -- 36 of 65 -- 37 from the land would amount to a greater proportional increase in traffic than he had understood from Mr Beard such that Main Roads would require more costly traffic works.156 Mr Douglas had only heard traffic generation estimates from Mr Beard when Mr Beard gave evidence 157 on day three of the hearing. [106] Mr Beard described his estimate of the traffic generated from the Ovenden Plan development as a “guess”.158 He put the figure at a little more than 400 an hour and an “awful lot”159 would not go on to the external road system. Internal traffic would probably reduce traffic generation by around a quarter.160 The design traffic generation, he thought, was: 420 Caseldan land 730 Shopping centre A couple of hundred for the hotel/motel 1,500 odd for the South Pine Sporting Complex [107] In Mr Beard’s view Caseldan would have to contribute by building a second right turn lane at the northern Cribb Road intersection. There would probably be a roundabout at the intersection of the loop road with the Council’s private road and Caseldan would be dedicating land through their site. Caseldan would probably also have to build the road and a modified driveway at the southern entrance to the hotel/motel.161 [108] Mr Douglas made the point that of the 1,500 vehicles per hour from the sports complex, as compared to the 420 from the Ovenden Plan development, about 750 to 760 would be using the roads near the Caseldan land and the balance would use Leitchs Road. The correct understanding of the traffic situation, Mr Douglas said, was that the 420 vehicles per hour would mix with about 750 per hour from the sporting complex.162 This meant that the development of the applicant’s land would add a significant component of the traffic flow.163 This would have a significant impact on the traffic situation.164 [109] Mr Douglas said that traffic costs would include traffic lights on Cribb Road. He stated that negotiation with the respondent to obtain access to its private road was a large risk165 which, if it led to success, would lead to conditions such as upgrading the “low 156 T 3-17 L 10/T 3-19 L 15 (Mr Beard) T 5-33 L 44/T 5-36 L 6 (Mr Douglas). 157 T 5-34 L 21-23. 158 T 3-17 L 24. 159 T 3-17 L 28. 160 T 3-17 L 37. 161 T 3-18 L 31/3-19 L 15. 162 T 5-34 L 28-35. 163 T 5-34 L 33-34. 164 T 5-34 L 36-44. 165 T 5-30 L 19-20. -- 37 of 65 -- 38 standard”166 private driveway. The increase in traffic on the South Pine Road/Eatons Crossing Road intersection, which has no spare capacity,167 would require a contribution for upgrade. Mr Douglas thought that “you would be building the Cribb Road set of lights to facilitate this development as well”.168 He said that he “would imagine that would all have to be at no cost to Council”.169 In his view “there is a long list of things you would have to do”.170 This would have been his advice to a prudent purchaser.171 [110] In response to a question from the Court, Mr Douglas confirmed the probable need for traffic lights on Cribb Road.172 Although he had not done costings, he thought the traffic lights alone would be over a million dollars. He mentioned possible costs of one and a half, two or even three million dollars on South Pine Road, depending on what needed to be done.173 He said: “We’re talking millions of dollars overall.”174 [111] Proceeding on the assumption that the respondent’s own development plans would cause it to do the traffic works, allowance would need to be made for the risk of delay. Although the respondent may have reason to proceed with the parts of its development that have a commercial flavour in order to obtain funds for the overall project, the works might not be done for five years.175 There was no certainty about when the respondent’s plan would be approved as it had just been lodged and often Council planning tends to slip.176 [112] There was no evidence of when the respondent might otherwise need to proceed with the traffic works. A five or ten year wait could be needed for the Council to do some or most of the works.177 Additionally Council might seek to obtain a contribution from those who benefit from the works.178 [113] A traffic planning solution would require the agreement of the respondent, the Comiskeys and the Department of Transport and Main Roads.179 There was no evidence from the Comiskeys, and no indication that their cooperation could be expected, other 166 T 5-30 L 24-25. 167 T 5-30 L 31. 168 T 5-30 L 35-36. 169 T 5-30 L 39. 170 T 5-30 L 43. 171 T 5-30 L 13. 172 T 5-30 L 45/5-31 L 2. 173 T 5-31 L 4-16. 174 T 5-31 L 10. 175 T 5-89 L 18. 176 T 5-97 L 9-10. 177 T 5-89 L 18, L 29-30. 178 T 5-89 L 39-40. 179 T 5-94 L 29-36, T 5-95 L 25/5-96 L 19. -- 38 of 65 -- 39 than it being made financially rewarding for them such that the disadvantages were outweighed. [114] As Mr Beard said: “At the date of resumption, the loop road was completely not a possibility any more at all.”180 He said that this was due to Council decisions, “not anything else”.181 It can be seen, however, that there was much else. The other considerations were not so completely negative as the respondent’s resolution but were necessary considerations for a prudent purchaser. [115] The decision of His Honour Judge Jones DCJ182 makes it clear that the respondent in that case, and potentially again, the Council, as landowner could not be required by the P and E Court to allow access using its private roadway. It was clearly very firm in relation to this. The letter reproduced in Exhibit 5 at page 349 demonstrates that the respondent wanted to make certain that its traffic expert and legal team did not misunderstand the position. [116] At the resumption date the respondent’s own development application was at an early stage. It is not able to be said that simply because the respondent is subject to the Sustainable Planning Act 2009 it would have imposed a condition on itself to allow access to the applicant’s land. It remained a landowner 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. There is no reason to assess the prospects of Comiskey cooperating as other than very low and potentially expensive. The requirements of the Department of Transport and Main Roads would be likely to be very expensive and the respondent, particularly in view of its attitude, is unlikely to be willing to bear much expense. Waiting for the traffic upgrades to occur naturally would likely be a long wait. Conclusions on Issue B.1(b) [117] For the purposes of a cash unconditional contract on the date of resumption, a hypothetical prudent purchaser would have considered the likelihood of obtaining appropriate access for development in accordance with the Ovenden Plan as being very low and if achieved, to be at a high cost. 180 T 3-40 L 37-39. 181 T 3-40 L 39-40. 182 Exhibit 7. -- 39 of 65 -- 40 Issue B.1 (c) should the Court disregard the Council’s denial of access for the purposes of a Southern Loop Road as being part of a scheme to, or steps taken to, resume the subject land? [118] The applicant, referring to the San Sebastian principle, submits that the Court should find that, but for the process of resumption of the land: (a) the Southern Loop Road would have remained an option in the Comiskey appeal; (b) the Southern Loop Road would have been the solution ultimately approved by the Court in the Comiskey appeal; and (c) any traffic access concerns for the land being developed in a manner such as the Ovenden Plan would have, accordingly, been capable of being resolved.183 [119] The applicant submits that the respondent did not provide any plausible explanation for its late change of position in relation to the Southern Loop Road and that there was not a single piece of paper from it to explain the change. As has already been considered, Exhibit 10A sets out a history of opposition from the respondent. The statement of Ms George, Exhibit 5, at paragraph 21 shows that on 15 February 2007 she was informed that Councillor Charlton had indicated that he was not supportive of Ms George or the Comiskeys using the respondent’s private road. The history already considered indicates that, when the respondent became aware of its traffic consultant not reflecting its position, it moved to correct any misunderstanding of its instructions. It is not the case that it withdrew its support for the loop road, although such an incorrect impression could have been gained by looking at only part of the facts. [120] The respondent’s action in constructing and using gates to control traffic access was based on legitimate reasons when antisocial and indeed criminal conduct had occurred. [121] The submissions for the applicant revolve around the timing of the respondent’s change of position. Since there was not a change of position, the submissions must fail. The applicant says that, by allowing the hotel/motel development on land zoned for sport and recreation, there was a commercial node created on the eastern side of South Pine Road and the respondent took the loop road off the table to stop the Comiskey development of a shopping centre and to stop the subject land being developed. It then decided to resume the land as part of its plan. [122] The respondent’s decision on 8 November 2011,184 while a formal decision on the point, it is not, as the applicant submits, a change of position but a statement of its position consistently held. However, this was not consistently put by its representatives in the 183 Submissions of the applicant, 117. 184 Exhibit 1 Volume 5, 1107-1109. -- 40 of 65 -- 41 Comiskey appeal. The respondent was “astounded”185 to learn that its representatives were considering it and corrected them. [123] It is submitted that support for drawing an inference against the respondent is found in an e-mail, dated 11 October 2012, within the Department of Transport and Main Roads. It states that the respondent objected to the loop road due to impacts on open space “and associated compensation impacts for that at recently resumed land”.186 [124] When looked at along with the history of the respondent’s attitude to use of its private road, this reason for the respondent’s objection may be accepted as true on its face and to mean only that this is a reason not to adopt a position different to what the other evidence shows was a long-standing position. In view of the evidence of the respondent’s position this e-mail does not warrant drawing an inference of conduct relevant to the San Sebastian principle. [125] Looking at support for the loop road by Mr Douglas at the Comiskey appeal, this shows that he did not think that rat-running alone was a valid reason to stop exploring a loop road.187 The evidence shows that it was only one consideration among other legitimate planning reasons which the respondent had and which have been considered already, including criminal conduct and safety of children and others. [126] The applicant submitted that Mr Douglas’s evidence was unsatisfactory and that his impartiality and credibility was suspect.188 Mr Douglas said that it ought not be concluded that the Department of Transport and Main Roads supported a loop road simply because he could not point to a piece of paper that it did not. This is an unremarkable statement and not at all indicative of anything more than the application of logic. The Court was aware of the position taken by this witness in the Comiskey appeal and observed his demeanour closely. The conclusion reached in relation to his credit and professionalism was that his manner was fully explicable by the fact that his enthusiasm had been reined in by the respondent in the Comiskey appeal and much was being made of his previous position, which just naturally made him a little embarrassed. [127] The respondent additionally argued that its position was in any case not able to be properly characterised as a planning restriction but was a consequence of its status as landowner. Although the expression “planning restrictions” is used in connection with the San Sebastian principle, the expression used by Kirby P in Haig v Minister189 better reflects the breadth of the concept. His Honour referred to “a resuming authority” using 185 Exhibit 5, 349. 186 Exhibit 1 Volume 5, 1199-1200. 187 T 5-56 L 9-19. 188 Submissions 110-114. 189 (1994) 85 LGERA 143, 149-150. -- 41 of 65 -- 42 “its powers or influence, in respect of such matters as zoning, to diminish the value of the land to be resumed”.190 Opposing the loop road, it was submitted, is not evidence of the type relevant to this consideration. In view of the findings that have been made, it is not necessary to decide this. If it were, the distinction between the respondent as landowner and resuming authority would be a significant consideration. Conclusion on issue B.1(c) [128] For the reasons given, the Court should not disregard the Council’s denial of access for the purposes of a southern loop road as being part of a scheme to, or steps taken to, resume the subject land. Issue B.2 With respect to town planning issues (and bearing in mind the traffic issues referred to above): (a) what would the hypothetical purchaser have considered to be the likelihood of obtaining town planning approval to use the land as playing fields? [129] There was no dispute between Mr Ovenden and Mr Simonic that since the land was zoned for sport and recreation uses the conversion of the golf course into playing fields would not cause any conflict with the planning scheme. It was quite likely that town planning approval would be obtained. The need for earthworks to be performed would be a matter to be considered when value is addressed. Conclusion on issue B.2(a) [130] The hypothetical prudent purchaser would have considered that there was a very high likelihood of obtaining town planning approval to use the land as playing fields. Issue B.2 (b) what would the hypothetical purchaser have considered to be the likelihood of obtaining town planning approval for a mixed use development as illustrated by the Ovenden Plan? [131] Mr Ovenden was of the opinion that a hypothetical prudent purchaser would have believed that there were good prospects of obtaining approval for the Ovenden Plan development. This was in view of:  the hotel/motel under construction;  the Comiskey supermarket only needing a traffic solution to obtain approval;  the respondent’s adjoining facility not relying on the continuing use of the land for sport and recreation;  the planning scheme having been overtaken by events.191 190 Haig v Minister (1994) 85 LGERA 143, 150. 191 Exhibit 1 Volume 2 Joint Planning Report 73, 89, 9.1.1. -- 42 of 65 -- 43 [132] Mr Ovenden was of the view that the proposed Structure Plan192 would be relied on by the purchaser. It includes retail/commercial uses along South Pine Road, residential uses behind that and a buffer at the east from the respondent’s sport and recreation facilities.193 [133] Subject to the necessary technical reports and a negotiated resolution of traffic and access issues,194 he saw very good prospects of obtaining approval for four out of five segments of the land and good prospects in respect of the remaining segment, to the south-east of the hotel/motel.195 [134] Essentially, the true planning landscape was not the same as the zoning which, in the case of all of the land being considered, was the same. Within it was the hotel/motel, said to be complementary to the sports complex and His Honour Judge Jones DCJ’s findings in the Comiskey appeal. This decision, in Mr Simonic’s words “changed the landscape”.196 [135] The respondent’s own plan for development, including commercial uses along the South Pine Road frontage as part of its integrated sports complex, had been lodged. It sought preliminary approval to override the planning scheme. A relevant period of 15 years was sought to carry out the whole Master Plan.197 It stated that the Master Plan was developed to ensure that appropriate and compatible land uses are developed on the site.198 Mr Ovenden said it would be reasonable to expect an infill commercial development on the Caseldan land. Mr Simonic conceded that the documents reviewed in the Comiskey appeal do not suggest that there would be a different approach in the present case to whether the land needs to be retained for sport and recreation uses.199 The applicant identifies this as critically undermining the respondent’s case that the Ovenden Plan would not be approved on the land, given its zoning and the need for its existing use as a golf course. It notes that the hotel/motel and shopping centre land had previously been used as a golf driving range, the Wantima Country Club golf course was just to the north and the Ovenden Plan incorporates a nine hole par three golf course to assuage golfers. This is shown in Exhibit 1 Volume 2 page 172. [136] The applicant submitted that what it characterised as an unexplained change of position reflected badly on Mr Simonic.200 In the town planning joint report201 he stated that the highest and best use of the land was for sport and recreation uses with some limited 192 Exhibit 1 Volume 2, 92. 193 Exhibit 1 Volume 2, 89, 9.1.1(e), 92. 194 Exhibit 1 Volume 2, 89, 9.1.2. 195 Exhibit 1, Volume 2, 92. 196 T 6-23 L 33. 197 Exhibit 1 Volume 6, 1316, 4.1.3. 198 Exhibit 1 Volume 6, 1317, 4.2.2. 199 T 6-41 L 18-22. 200 Submissions 144. 201 Exhibit 1 Volume 2, 73. -- 43 of 65 -- 44 commercial uses along South Pine Road adjacent to the veterinary clinic and some low traffic generating residential uses to the south of the tavern (hotel/motel) provided that access and amenity can be addressed.202 In his own report he wrote that: “Given the conflict with the Planning Scheme and lack of any sufficient planning grounds or community need, any further intensification or change of use of the subject land is in my opinion premature and contrary to sound planning.”203 [137] Mr Simonic went on to say that areas A, B, D and E of Mr Ovenden’s plan204 were unsuitable for residential development.205 The unexplained change was said to not reflect well on Mr Simonic. [138] When cross-examined, Mr Simonic said that the reference in his individual report to further intensification or change of use being premature was “more of a clarification”.206 The Court is satisfied that no sufficient basis has been shown here for any adverse view to be taken of Mr Simonic’s evidence and his performance of his duty to the Court. [139] The applicant submitted that as the uses contemplated by the Ovenden Plan would be complementary to the sporting complex, there would not be a sufficient conflict with the planning scheme to prevent approval. The development could be brought about in line with that proposed by the respondent, giving it good prospects of success.207 [140] In respect of area E on the Ovenden Plan, Mr Simonic agreed that impacts from the hotel could be dealt with by appropriate design.208 Mr Simonic saw area B as different to E and unsuitable for residential use.209 [141] It was submitted that the Ovenden Plan, an indicative structure plan only, did not require the consent of the owners of the veterinary surgery land and that the road network could avoid the stormwater detention basins. [142] The planning scheme itself did not support the view that there was a retail/commercial node east of South Pine Road. Approval would be needed in each case to override the scheme. It would need to be shown that a particular proposed development, rather than something in the general nature of the Ovenden Plan, was supported by proper grounds. [143] The availability of the loop road was crucial. In the planners’ joint report they stated: “7.1.1 It is agreed that traffic and access issues will be key considerations in any redevelopment of the subject site.”210 202 Exhibit 1 Volume 2, 88-89 8.1.29. 203 Exhibit 1 Volume 2, 178, 184 19. 204 Exhibit 1 Volume 2, 194. 205 Exhibit 1 Volume 2, 178, 184 20. 206 T 6-47 L 39. 207 T 6-39 L 14-24. 208 T 6-52 L 16-44. 209 T 6-54 L 1-12. 210 Exhibit 1 Volume 2, 73, 83. -- 44 of 65 -- 45 [144] Mr Ovenden agreed that access was fundamental211 and a purchaser would be well aware of that.212 The cost of a proper traffic solution is a relevant consideration.213 Mr Ovenden agreed that his plan was conceptual in nature214 and it assumed that appropriate access would be provided.215 This plan requires the consent of the respondent to use its private road216 and also the consent of the Comiskeys to run a connection through their land and to get access to South Pine Road. Without these consents the plan cannot be realised.217 Mr Ovenden would have discussed this with a prospective purchaser.218 He said that he would have advised a prudent purchaser that: “there’s a high probability that a solution will be achievable, and in terms of what he pays for it, I don’t actually give advice along those lines. He would actually speak to a valuer. But certainly there’s risk attached and I acknowledge that.”219 [145] This Court’s consideration of the evidence has led to a different conclusion than that assumed by Mr Ovenden. The 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 construction costs. [146] Development beyond that zoned for would be in conflict with the planning scheme220 so approval would have to be refused, unless there are sufficient grounds to justify it, despite the conflict.221 Grounds, in the present context is defined as matters of public interest and does not include the personal circumstances of an applicant, owner or interested party.222 The grounds justifying an approval must exist for the particular proposed development.223 The grounds that may have been satisfactory for the Comiskey supermarket would not be an automatic success for a development based on the Ovenden Plan. It is not transferable but may be relevant.224 [147] Convenience and co-location might be urged in favour of an Ovenden Plan development225 when looked at alongside the other developments but that would equally apply to sporting use plans when looking at the other sporting uses nearby. In the case of 211 T 4-11 L 20-24. 212 T 4-11 L 39-40. 213 T 4-14 L 1-4. 214 T 4-12 L 16. 215 T 4-12 L 18-20. 216 T 4-12 L 30-34. 217 T 4-12 L 36-46. 218 T 4-13 L 1-5. 219 T 4-14 L 38-41. 220 T 3-93 L 24-28. 221 Sustainable Planning Act 2009, s 326(1)(b), Exhibit 8. 222 Sustainable Planning Act 2009. Schedule 3, Exhibit 8. 223 T 3-93 L 39-40. 224 T 3-94 L 5-7, T 4-31 L 1-11. 225 T 4-31 L 13-19. -- 45 of 65 -- 46 the Comiskey appeal, His Honour Judge Jones DCJ found that there was a strong level of economic need for a further full-line supermarket226 and the proposal would improve the ease, comfort, convenience and efficient lifestyle of the community.227 These considerations were referrable to the particular development and not likely to simply be automatically useful to an Ovenden Plan development application which would have to stand on its own merits. Mr Ovenden conceded that the input of an economic need expert would be necessary when considering a development proposal.228 At the date of resumption the land was being used as a golf course, available to the public.229 It was successful as a golf course230 and, in the words of Ms George: “our business was a very good little business.”231 [148] Mr Ovenden agreed that the success of the business established that there was a public need for it in addition to the nearby Wantima course.232 [149] The respondent’s application for preliminary approval would not be a great source of comfort to a prospective purchaser as it was still at an early stage where the public had the right to make submissions.233 The ultimate form of any development was not certain234 and it was an application for preliminary approval only. It would not authorise any development even if granted.235 The timing of the development was unknown.236 [150] It is significant that the respondent’s project is a long-term one, expensive and without fixed timing.237 It is not funded and will be staged over a number of years as funds become available.238 [151] Timing is particularly significant to a potential purchaser.239 When the respondent will actually proceed with its intended development is unknown. Mr Simonic pointed out that the sports-related commercial uses would be subject to further investigation to assess economic justification.240 Further detailed design and economic and planning assessment 226 Exhibit 1 Volume 5, 1100 [82]. 227 Exhibit 1 Volume 5, 1102 [89]. 228 T 4-43 L 20-37. 229 T 3-98 L 15-16. 230 T 4-43 L 44-45. 231 T 5-7 L 35-40. 232 T 4-44 L 20-24. 233 T 4-37 L 15. 234 T 4-37 L 21-22. 235 T 4-37 L 17-22, T 6-7 L 24-30. 236 T 4-11 L 11-17. 237 T 6-8 L 17-23. 238 T 6-8 L 25-27. 239 T 4-10 L 39-46. 240 T 6-7 L 32-38, Exhibit 1 Volume 6, 1299, 1. -- 46 of 65 -- 47 was envisaged in relation to commercial opportunities referred to in the application for preliminary approval.241 Conclusion on issue B.2(b) [152] A prudent purchaser would have considered, in the context of an unconditional cash contract at the date of resumption, that the likelihood of obtaining town planning approval for a mixed use development as illustrated by the Ovenden Plan was very low. Issue B.3 With respect to valuation issues generally: (a) what would the hypothetical purchaser have considered to be the highest and best use of the subject land on the basis of a cash unconditional contract? [153] The applicant’s valuer, Mr Rabbitt, has valued the land at $5,555,000 on the basis of its highest and best use indicated by the Ovenden Plan. In the alternative, a value of $3,535,000242 was derived by Mr Rabbit from sales of a sporting ground at Fig Tree Pocket and the Murphy and Comiskey land adjacent to the subject land. This figure, it is submitted, should be seen as a base value and increased to reflect the likelihood of the Ovenden Plan being approved. [154] The respondent contends that the land value is $1,800,000243 as a 10 hole golf course at $15,000 per hole, with a 20% increase to reflect the quite limited prospects of development. [155] The applicant submits that a prudent purchaser would take some comfort from offers made for the land.244 Conclusion on Issue B.3(a) [156] In view of the matters so far examined, a hypothetical prudent purchaser mindful of an unconditional cash contract at the date of resumption would have considered the highest and best use of the subject land to be for sport and recreation purposes. Issue B.3 (b) Is it necessary to have development costs or estimates to determine what a hypothetical purchaser would pay for the subject land to be converted to use as sporting fields? [157] The applicant contends that it is not necessary to have development costs or estimates. They would naturally depend on the particular development contemplated and Mr Rabbitt considered an indicative plan only.245 241 Exhibit 1 Volume 6, 1310. 242 Exhibit 1 Volume 1, 42. 243 Exhibit 1 Volume 1, 56. 244 Exhibit 5. 245 T 7-11 L 42-47. -- 47 of 65 -- 48 [158] The respondent referred to the words of Isaacs J in Spencer v Commonwealth that the parties are supposed to be: “cognizant of all circumstances which might affect its value”246 [159] The Court is aware of the skill of a valuer to make valuations and also that an increase in relevant data ought to bring about an increase in the accuracy of the valuation. While costs of a certain development may not be absolutely required, their presence or absence will be likely to influence the accuracy of the valuation. Conclusions on Issue B.3(b) [160] It is not necessary to have development costs or estimates to determine what a hypothetical purchaser would pay for the subject land to be converted to use as sporting fields but the absence of that information would result in the valuer being less cognisant of a consideration relevant to value. Issue B.3 (c) Having regard to the answers to the above questions, what is the market value of the land as at the relevant date? [161] The applicant criticised the respondent’s valuer, Mr Gillespie. It was submitted247 that his evidence was confused and confusing and that he was unable to explain his valuation approach. An example is used of his response to a question from the Court about how he arrived at a 50% reduction for risks in obtaining access. Considering the whole passage enables an understanding not available when only part of it is read. Mr Gillespie said that the 50% allowance was to represent risk at the limit of possibility248 and was not drawn from the sales he considered as they did not have comparable access.249 This does not provide any basis for an adverse finding on the intelligibility of Mr Gillespie’s evidence or his valuation approach. [162] Mr Gillespie was also criticised by the applicant for repeatedly expressing his own views about the prospects of a traffic solution and planning approvals being achieved. This was unnecessary but did not cause the Court to confuse this with the relevant evidence. The Court’s observation of this witness led to the conclusion that he was doing his honest professional best to assist the Court and there is no basis for an adverse finding in relation to him. 246 (1909) 5 CLR 418, 441. 247 Submissions 167. 248 T 7-41 L 42-43, T 7-42 L 5-6. 249 T 7-42 L 10-13. -- 48 of 65 -- 49 [163] Mr Rabbitt did not contend that the land had any great advantages in its basic characteristics.250 It was on one title.251 It is a large site, at 10.1 ha, for an urban area.252 All things being equal, a larger size will ordinarily have a lower rate per m².253 The land is one of the most irregularly shaped allotments that either valuer could recall.254 It is zoned for sport and recreation so it is necessary to deal with that.255 [164] The land would need site works in order to be used for another purpose.256 Mr Rabbitt did not know the extent of the works that would be required257 and Mr Gillespie said the costs would be “very considerable”.258 He estimated the cost at $5 a cubic metre to shift earth but had not worked out the amount of earth that might have to be moved. In addition there would also be turfing, irrigation and lights.259 [165] The land is flood affected to the extent of about 1.5 ha.260 It is also crossed by an electricity transmission line easement over about 1.39 ha.261 It is 16 kilometres (km) from the Brisbane Central Business District (CBD).262 Access is poor, with no access from its southern frontage to South Pine Road and only left turn in and out access from the northern frontage, a major inhibitor to development.263 The Comiskey land enjoys much better access264 and exposure to South Pine Road.265. The applicant’s case for a value of $3,535,000 as playing fields [166] The applicant’s valuer, Mr Rabbitt, relied on four sales in support of a value of $3,535,000, which can also be understood as $350,000 per ha or $35/m². The Court will consider them seriatim in the order used in the applicant’s submissions.266 73 Terrigal Street, Fig Tree Pocket [167] This sale of a sporting oval was the only recent sale of sporting and recreation zoned land in the region. It is low lying and extensively flood prone with no exposure, has difficult access through residential streets and inferior development potential compared to the subject land. The sale price of $4,625,000 showed $35/m² overall and $57/m² for useable 250 T 4-81 L 7-14. 251 T 4-75 L 21, T 6-81 L 1-7. 252 T 4-75 L 44, T 6-81 L 29. 253 T 4-76 L 10-25, T 6-81 L 44-45. 254 T 4-80 L 27, T 4-81 L 1-15, T 6-82 L 10-23. 255 T 4-76 L 31, T 6-82 L 29-30. 256 T 4-77 L 7-8. 257 T 4-77 L 7. 258 T 6-84 L 10-20. 259 T 6-91 L 16-24. 260 T 4-77 L 22-26, T 6-83 L 6-15. 261 T 4-78 L 4-7, T 6-83 L 20-33. 262 T 4-79 L 4-5. 263 T 4-79 L 14-30. 264 T 4-80 L 10-22. 265 T 4-80 L 15-16. 266 Submissions 172. -- 49 of 65 -- 50 area. Mr Rabbitt viewed it as slightly superior to the land as sporting fields. It was sold with structural improvements. He considered it a good guide to the value of the land for sports and recreation uses.267 It is on three allotments and has an area of 13.11 ha of which 8 ha is cleared for use as sporting grounds. It sold on 14 November 2012, which is after the 20 July 2012 resumption date. It became apparent to Mr Gillespie, the respondent’s valuer, that Goods and Services Tax (GST) was included in the sale price which was $4,250,000.268 Carseldine sale [168] Mr Rabbitt also considered a sale at 52 Buckle Road and 48 Carseldine Road, Carseldine. Rural zoning limited the potential to rural homesite use on each of the two allotments.269 Improved with a dwelling and shed, the 4.6 ha sold for $1,100,000 on 12 April 2010. Mr Rabbitt said that showing $327,044/ha or $32.70/m² it supported his valuation of the subject land. The Murphy land [169] Also relied on was the respondent’s purchase of 596 South Pine Road, the Murphy land, on 9 December 2007. This undulating cleared four lot 9.61 ha site adjoins the subject land to the north and was sold for $6,850,000. It is zoned for sports and recreation uses. This sale shows $71.82/m². Mr Rabbitt saw it as supportive of his valuation. It has superior frontage and potential to the subject land. The Comiskey land [170] Mr Rabbitt also used the sale of 646 South Pine Road, the Comiskey land. With an area of 5.9 ha on one lot it sold on 15 August 2006 for $3,588,500. Also zoned for sport and recreation uses, it is undulating and slopes to the rear. It was purchased for future development. It shows $60.92/m² and has superior road frontage, shape and access. Mr Rabbitt saw it as supporting a value for the subject land in the $30/m² to $50/m² range.270 [171] The applicant submits that the Fig Tree Pocket sale and the adjoining sales are particularly compelling.271 The valuer’s joint report shows that the 73 Terrigal Street land was highly sought after by local private schools and clubs. Mr Rabbitt says it shows demand for the land for uses such as sports ovals beyond the golf course use favoured by Mr Gillespie.272 267 Exhibit 1 Volume 2, 123, 157, 160. 268 Exhibit 31. 269 T 7-30 L 18-30. 270 Exhibit 1 Volume 2, 93, 111. 271 Submissions 173. 272 Exhibit 1 Volume 2, 93, 112. -- 50 of 65 -- 51 [172] The 2 ha of developable land on the Terrigal Street sale was likely to have its development prospects limited by the need to retain some of the vegetation on any allotments.273 Also Mr Rabbitt’s “very broad plan”274 of how the land could be developed for sporting fields would involve cost but that ought to be offset against the fact that the Terrigal Street land is largely flood prone,275 an aspect in regard to which the subject land has a significant advantage.276 [173] The subject land is improved with a restaurant, club house, low set brick dwelling, two sheds, the golf course and significant car parking.277 Mr Gillespie acknowledged that the change room complex at Terrigal Street was a shed, the house was very run down and there was no car parking on the land.278 [174] The price achieved for the Terrigal Street land after the heavy flooding in 2011 is pointed to as indicating the value in the subject land with its far superior situation in regard to flooding. [175] It was submitted that the characteristics of the Murphy and Comiskey land were so comparable279 that not using them for that purpose was inexplicable on the part of Mr Gillespie. Additionally, his characterisation of the land at 48 Carseldine Road/52 Buckle Road as superior is not said to be convincing, as although it is on two titles, it is zoned rural and flood prone through its middle so that its best use would be for two large home sites. [176] Mr Gillespie’s use of a sale of Lot 4, Scout’s Crossing Road, Brendale is criticised by the applicant as being not comparable. It is at the end of an unsealed road, about 1 km off the main road and cut by a gully and electricity transmission line easement. It is flood prone with no commercial potential. Use of this as his primary sale, it is submitted, calls into question his credibility as a valuer and suggests that he has seriously erred in his approach.280 [177] The other sales used by Mr Gillespie are all said to be “vastly inferior”.281 Lakeside Country Club, a golf course 1.5 hours away has no commercial potential. Karana Downs Golf course is nearly all flood prone, has no commercial potential and is not on a major road. The Parkwood International Golf Course and the Robina and Colonial golf courses at the Gold Coast are much larger at 56.59 ha and 104 ha, resulting in a low rate per 273 T 6-65 L 21-37. 274 Exhibit 1 Volume 2, 156. 275 Exhibit 1 Volume 2, 157. 276 T 7-15 L 4-13. 277 Exhibit 1 Volume 2, 141. 278 T 7-17 L 45/7-19 L 8. 279 T 7-6 L 1-40. 280 Submissions 186. 281 Submissions 187. -- 51 of 65 -- 52 square metre. They are not on a major road nor do they have commercial potential. None of the golf courses Mr Gillespie used are proximate to a commercial node. Limiting inquiry to golf courses fails, Mr Rabbitt said, to take the local market into account282 although Mr Gillespie saw the markets as “about equal”.283 [178] The applicant submitted that the value of $3,535,000 should be increased to make allowance for the land’s commercial potential.284 The respondent’s case for valuation as playing fields [179] The respondent submits that Mr Rabbitt’s sale 1, using the numbering in his report, the Murphy land at 596 South Pine Road, is greatly superior to the subject land as it has four titles while the subject land has only one.285 The Murphy land enjoys 320 metres of frontage to South Pine Road and the unmade Cribb Road.286 It has good exposure and a regular shape.287 The Murphy land has superior topography288 and is flood free289 with no electricity easement over it.290 It is all developable.291 For these reasons it is said to be superior to the subject land. [180] The respondent also submits that sale 2, the Comiskey land at 646 South Pine Road, is greatly superior to the subject land. With one title but the potential for two292 it was more regular in shape than the subject.293 It had, or had the potential for, a traffic signal controlled intersection opposite Bunya Park Drive.294 This land has superior topography to the subject land and has no flooding problem.295 It has good access296 which was sufficient for the tavern and shopping centre.297 These considerations illustrate the superiority of this land to the subject land. [181] Mr Rabbitt’s sale 3 at Maryvale Road, Mango Hill, of Lot 992 on SP253931 for $4,000,000 on 14 November 2011 is said to be superior. It has an area of 10.69 ha with a developable area of 7.26 ha. Mr Rabbitt considered that it showed $37.42/m² for the site area and $55/m² for the developable area. An irregularly shaped vacant development site bounded by a creek at the rear, it was not of such a shape that would inhibit development. 282 T 4-72 L 27-29, T 7-22 L 13-29. 283 T 7-22 L 28. 284 Submissions 190. 285 T 4-75 L 35-40. 286 T 4-79 L 35-43, T 4-81 L 33-37, T 6-82 L 44/6-83 L 2, T 4-80 L 1-9. 287 T 4-81 L 25-26, T 6-82 L 23-27. 288 T 4-81 L 28-31 289 T 4-82 L 1-5, T 6-83 L 14-15. 290 T 4-82 L 7. 291 T 4-82 L 3. 292 T 6-81 L 19-23. 293 T 4-85 L 46/T4-86 L 2. 294 T 6-5 L 18-22, T 6-82 L 44/6-83 L 4. 295 T 4-86 L 4-5, T 6-83 L 14-15. 296 T 4-86 L 7-9. 297 T 4-86 L 17-19. -- 52 of 65 -- 53 Mr Rabbitt considered that, assuming access and the Ovenden Plan, the subject was superior. This sale was with approval for a 106 lot subdivision so was risk free.298 The Court’s finding on the assumptions regarding access and the Ovenden Plan results in this sale being regarded as superior. [182] The respondent submits that Mr Rabbitt’s sale 4, an allotment of 4.47 ha at 4154 Pacific Highway, Loganholme, is superior to the land. It sold for $4,000,000 on 26 August 2011. It was formerly a golf driving range and was purchased by the Logan City Council for future redevelopment. It has exposure to the Pacific Highway but difficult access by service road. It was improved with a low set brick clubhouse. Some 19,700 m² is flood prone and 25,000 m² is useable. The nearest sewerage connection is 700 m away. Mr Rabbitt analysed the sale to show $89.48/m² overall and $160/m² for the useable land. Its highest and best use was for retail and commercial development.299 Mr Rabbitt considered it superior to the subject.300 [183] The sale at 73 Terrigal Street, Fig Tree Pocket is, the respondent submits, superior to the subject land. It was already improved for sports fields use.301 It was in three allotments that each had dedicated access so they could all be sold separately.302 Its shape was largely regular, except for the top part.303 The land included an area zoned Emerging Community which could be developed for very low density residential use, preserving vegetation as required.304 [184] As has been mentioned, Mr Gillespie found that the sale included GST, whereas Mr Rabbitt had used a sale price of $4,625,000 the price without GST was $4,250,000.305 Mr Rabbitt’s derived figure of $35.27/m² for the improved sale should be $32.42/m².306 For the 8 ha of useable area, Mr Rabbitt’s figure of $57/m307 should be $53.13.308 [185] Exhibit 32 is a vegetation map and exhibit 28 includes vegetation mapping and an extract from the Fig Tree Pocket Local Plan which at 2.3.1 refers to very low density residential uses. The Local Plan Code, also in exhibit 28, sets out the applicable performance criteria and acceptable solutions. 298 T 4-86 L 29-45. 299 Exhibit 1 Volume 2, 123, 147, T 4-87 L 4-12. 300 T 4-87 L 12. 301 T 6-98 L 37-39, T 6-99 L 19-27. 302 T 6-81 L 12-13. 303 T 6-82 L 20-21, T 6-98 L 45-47. 304 T 6-17 L 26/6-18 L 17, T 6-82 L 32-36, T 6-98 L 33. 305 Exhibit 1 Volume 2, 157. 306 T 6-95 L 35-37. 307 Exhibit 1 Volume 2, 157. 308 T 6-95 L 39-41. -- 53 of 65 -- 54 [186] Access to the 73 Terrigal Street land, although through suburban streets, was assisted by proximity to the Centenary Highway and it is closer to the city than the subject land.309 There is no electricity easement on the Terrigal Street land.310 [187] The presence of three allotments provides a potential for a boundary realignment so that the land zoned Emerging Community could be on-sold by a purchaser. Mr Rabbitt had not allowed for this and, although he had not understood that it was a factor in the sale, he accepted that a school would be looking for money.311 He had also not been aware that the sale price which he used, $4,625,000, included GST.312 The calculation error has been identified by Mr Gillespie and its extent has been quantified so that its significance is known. Mr Rabbitt’s approach to valuation of the Terrigal Street land overlooked an aspect of value, the potential for boundary realignment, the quantum of which is not known. This finding leaves the Court unable to rely on Mr Rabbitt’s assessment and use of the 73 Terrigal Street land sale. [188] The respondent submits that the land at 52 Buckle Road and 48 Carseldine Road, Carseldine is superior to the subject land as it is on two allotments with separate access and so could be sold separately.313 It has a regular shape,314 no electricity easement, there is some development in the locale and it is in a quarrying area.315 [189] Mr Rabbitt’s sale 5, at 342-356 at Leitchs Road, Brendale, is one lot of 4.77 ha sold on 14 October 2009 for $4,686,000. This is an irregularly shaped, level townhouse site zoned Residential B and approved for development of 169 townhouses. This sale showed $98.20/m². This is superior to the subject land overall but the location is comparable to inferior. [190] Sale 6, at 5 Morgan Road, Albany Creek, is one lot of 1.205 ha. It sold on 2 June 2011 for $2,225,000. An irregularly shaped site zoned Residential A, it was purchased for a proposed 45 townhouse development. The sale showed $186/m². It is an inferior site to the subject, in Mr Rabbitt’s opinion, with its relatively small size showing a higher rate per m². The applicant’s case for a value of $5,555,000 as mixed use land – The Ovenden Plan [191] Mr Rabbitt’s opinion was that the best evidence of value was the two sales of adjoining land, 596 South Pine Road, which his report shows he used the rate of $70/m² for316 and 309 T 6-98 L 37-43. 310 T 6-99 L 4-5. 311 T 4-73 L 12/4-74 L 4. 312 T 4-74 L 6-7. 313 T 6-81 L 9-16. 314 T 6-82 L 22. 315 T 6-82 L 36-42. 316 Exhibit 1 Volume 2, 150. -- 54 of 65 -- 55 646 South Pine Road, which showed $55/m².317 Assuming the applicability of the Ovenden Plan, he arrived at a value of $55/m² for the 10.1 ha, a figure of $5,555,000.318 [192] As a check, he considered the different uses under the plan, the applicable areas and rates to estimate a gross realisation of $8,632,000 which he discounted by 35% to come to an englobo land value of $5,610,800.319 [193] The applicant’s submissions return to criticism of Mr Gillespie on the basis, as before, that it is said that he was unable to explain “in any comprehensible way”320 how a 50% discount for obtaining access and upgrading intersections was arrived at.321 It was submitted that the impact of the power easement was incorrectly considered as the Comiskey land was also burdened by the same easement. The allowance for intersection upgrading was not justified as the Comiskey and Murphy lands would also have needed intersection upgrades. It was submitted that access was “likely to have been provided” and in any event the most likely purchaser was Comiskey so that he could amalgamate it with his land.322 It was also submitted that the discount does not reflect the offers that had been made for the land.323 Mr Gillespie’s evidence regarding the cost allowance for upgrading intersections324 was said to be “unintelligible and unpersuasive”.325 [194] When properly appreciated in context, Mr Gillespie’s evidence is not reasonably open to these criticisms. The section of the joint report being used to illustrate what are being pointed to as “obvious flaws in Mr Gillespie’s approach”326 is section 8.2.1327 which is headed, perhaps a little unfortunately, “Mr Gillespie”. It is not Mr Gillespie’s valuation at all but an estimate he made at the request of Mr Rabbitt.328 It was a top-down exercise which he had rejected.329 It assumed the Ovenden Plan would be seen as realistic. He had used the very high discount of 50% to allow for the access risk and the development costs and it reflected the danger of a top-down valuation approach.330 [195] The “obvious flaws” to which the applicant refers are, when the criticism is examined, really flaws in the top-down valuation approach which exist in the present case. 317 Exhibit 1 Volume 2, 150. 318 Exhibit 1 Volume 2, 153. 319 Exhibit 1 Volume 2, 121. 320 Submissions 194-198 321 Exhibit 1 Volume 2, 120. 322 Submissions 198. 323 Submissions 199. 324 T 7-43 L 20-43. 325 Submissions 197. 326 Submissions 195. 327 Exhibit 1 Volume 2, 120. 328 T 7-51 L 39-43. 329 T 7-52 L 4-5. 330 T 7-52 L 1-32. -- 55 of 65 -- 56 [196] Mr Gillespie’s actual approach is seen in the joint report, this time under the informative heading “8.1.1 Mr Gillespie’s Position” where he explains his bottom-up approach in this way: “In comparison with the basic sales used I have adopted a base value per golf hole and added a percentage above the base for the possibility of some further development of the land adjacent to the Veterinary Surgeon land. I have adopted $150,000 per golf hole for the base and a percentage of 20%. 10 holes @ $150,000/hole $1,500,000 + 20% $ 300,000 $1,800,000”331 Offers for the land [197] In 8.2.1 of the joint report it is recorded that: “While Mr Rabbitt accepts that offers/contracts are not evidence of value, there have been numerous conditional offers for the site by established developers between $4,500,000 to $8,000,000 which would suggest the market is interested in this site for development.”332 The offers referred to in the submissions333 are: (a) an unconditional written offer to purchase on 2 June 2005 made by Flaskas Pty Ltd for $3.69 million;334 (b) a verbal unconditional offer to purchase on 10 August 2006 made by Comiskey for $4 million;335 (c) a verbal offer on 16 August 2006 made by Comiskey for $4.2 million plus ‘management rights’ to the business for 3 years (valued at approx $100,000 p/a – i.e. equivalent to a $4.5 million offer);336 (d) a conditional written offer to purchase on 3 April 2007 made by Lionmax Pty Ltd and Nishkar Pty Ltd (Byrne family) for $6 million;337 (e) a verbal unconditional offer on 12 January 2009 made by Comiskey to for $4.5 million;338 (f) a verbal conditional offer to purchase made around 5 August 2009 by MassLand for $6 million;339 (g) verbal conditional offer in January 2010 made by Coastline Developments for $8 million;340 331 Exhibit 1 Volume 2, 118. 332 Exhibit 1 Volume 2, 120. 333 Submissions 199. 334 Exhibit 5 [10], 75. 335 Exhibit 5 [14]. 336 Exhibit 5 [15], [16]. 337 Exhibit 5 [25], 79 ff. 338 Exhibit 5 [34]. 339 Exhibit 5 [40], [41]. 340 Exhibit 5 [43]. -- 56 of 65 -- 57 (h) conditional written offer on 4 July 2011 by Consolidated Properties Pty Ltd for $4.5 million;341 (i) conditional written offer in July – August 2011 made by Cube Developments to purchase for between $6M to $8M, depending on when the option to purchase is exercised.342 The relevance of the offers [198] The applicant submits that the decision of Member Smith in Savimaki & Ors v Sunshine Coast Regional Council343 is authority for the proposition that evidence of offers was relevant in assessing value.344 In that case His Honour was considering the evidence of one of the applicants regarding a telephone offer from the respondent and a valuation report prepared for the respondent. The admissibility of this evidence had not been challenged and the question was the “relevance and weight” to be given to it.345 The learned Member found that there were “good reasons” for the Court to “give some considerable weight” to the offer and the valuation.346 [199] It was submitted that Member Smith preferred the approach by Spigelman CJ in MMAL Rentals Pty Ltd (ACN 008 293 490) & Ors v Bruning347 where His Honour said: “That critical part of the reasoning would not apply to an offer with respect to the very land or property in issue. In such a case I would have thought that the relevance of the offer is sufficient to make it admissible, although its weight will depend on surrounding circumstances.”348 [200] It was pointed out that this went beyond the more conservative approach reflected in the decision of the majority in Auxil Pty Ltd & Anor v Terranova & Ors.349 Miller JA agreed with Buss JA350 who said: “[44] The reasoning and decision in McDonald concerned the admissibility in evidence of unaccepted offers to purchase in a land tax assessment appeal where the unimproved value of the appellant’s land was the critical issue. As Gleeson CJ explained in HML v R (2008) 235 CLR 334; 245 ALR 204; [2008] HCA 16 at [5]- [6], the basic principle governing the admissibility of evidence is this: evidence that is relevant is admissible unless there is some good reason for rejecting it. Evidence that is irrelevant is inadmissible. Evidence that is relevant may be rejected for reasons relating to its content, or to the form or circumstances in which it is tendered. Evidence will be relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. 341 Exhibit 5 [65]. 342 Exhibit 5 [66]. 343 [2013] QLC 33. (2013) 34 QLCR 125. 344 Submissions 200. 345 (2013) 34 QLCR 125 [82]. 346 (2013) 34 QLCR 125 [83]. 347 (2004) 63 NSWLR 167. 348 (2004) 63 NSWLR 167, 184. 349 (2009) 260 ALR 164. 350 (2009) 260 ALR 164, 179 [72]. -- 57 of 65 -- 58 [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] Second, the general rule does not exclude evidence of an unaccepted offer in each and every case. [48] Third, 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] Fourth, 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] Fifth, 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] Sixth, 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, 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. [52] It is unnecessary, in this appeal, to consider whether any difference or tension exists between the decisions of the Full Court of the Federal Court on the one hand and the decisions of the Court of Appeal of New South Wales on the other.”351 [201] Neither in the present case nor, it appears, in the one before Member Smith, did the parties direct the Court’s attention to the decision of the Land Appeal Court in Heavey Lex No. 64 Pty Ltd v Chief Executive, Department of Transport.352 The Land Appeal Court said: “ [24] There is a body of authority for the proposition that a genuine offer to purchase has evidentiary value. Mr Needham accepted the correctness of those decisions and argued that they had been correctly applied. [25] The limitations generally inherent in the treatment of offers to purchase as evidence of market value were cogently discussed in the following passage from the judgement of Wilcox J, Goold v The Commonwealth: 351 (2009) 260 ALR 164, 176-177. McDonald v Deputy Federal Commissioner of Land Tax for New South Wales (1915) 20 CLR 231. See also Nardone v South Australian Land Commission (1978) 40 LGRA 164 where Jacobs J held that an offer is not evidence of value. 352 (2001) 22 QLCR 177. -- 58 of 65 -- 59 ‘Of course, before placing reliance upon a mere offer, a court must consider carefully the question of its genuineness. The offer might be a sham, designed to prop up an inflated compensation claim or to reduce rates and taxes; in either case without any cost to the offerer. It might be an attempt to manipulate the market for some other ulterior purpose, perhaps a purpose extraneous to the litigation. If the offer was genuine when made, it might not have led to a concluded contract, even if resumption had not intervened. The offer might have been withdrawn. The purchaser might have failed to complete the transaction. Because of matters such as these, even a genuine offer cannot be regarded as direct evidence of value. But it seems to me that, once the court is satisfied about genuineness, 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’”353 [references omitted] [202] In that case the contract was conditional on rezoning and approval for subdivision. The Land Appeal Court found that the learned member had not been shown to be incorrect in regard to the weight attributed to the offer.354 The written offer by Flaskas Pty Ltd, a golf industry business, to purchase for $3,690,000 on 2 June 2005 must be appreciated in the context explained by Ms George. Flaskas Pty Ltd also wanted to buy what became the Comiskey land, then a golf driving range.355 If it had acquired both parcels, access to the subject land would have been available through that other land.356 The contract refers to “special conditions” next to the reference to “deposit”.357 The evidence of Ms George was that it was not subject to conditions related to development approval. She was only able to locate the first page of the contract.358 The matter did not proceed because at the time neither Ms George nor the owner of the next-door driving range wished to sell.359 [203] The approach of Member Smith is fully in accordance with that of the Land Appeal Court which makes clear that the weight to be attributed to an offer will depend on the facts. [204] The applicant submits that there has been no challenge to the genuineness of the offers and that they, particularly the unconditional offers by Comiskey, help to establish a lower 353 (2001) 22 QLCR 177, 181-182 [24], [25] cf. T 6-100 L 7-9 Mr Gillespie said that an offer could not be relied on “as evidence of value”. See also Mio Art Pty Ltd v Brisbane City Council; Greener Investments Pty Ltd (In Liquidation) v Brisbane City Council (2010) 31 QLCR 174, 181-182 [51]. 354 (2001) 22 QLCR 177, 183 [30]. 355 Exhibit 5 [5], [10]. 356 T 5-8 L 1-11. 357 Exhibit 5 DG4, 75. 358 T 5-6 L 1-13. 359 Exhibit 5 [10], T 5-9 L 1-6. -- 59 of 65 -- 60 limit of value and also to show error by Mr Gillespie.360 As the Land Appeal Court made clear, the genuineness of an offer must be carefully considered. Although not challenged by the respondent, there is relevant evidence in the applicant’s case on the subject. It is the unsigned and undated correspondence disclosed by the respondent in the present case and included in exhibit 5, Ms George’s statement, as OG 24. It has been referred to previously but it is worth setting out the relevant parts in the present context. It is from the respondent and addressed to the Comiskeys. It says: “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 the errant golf balls that come 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 have 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. Paul and Robert, we have had a good working relationship over many years and it disappoints me that your attack on my professionalism puts in jeopardy that open relationship that we have enjoyed in the past. I had thought that with your newly acquired property on the mainland adjacent to the Bribie Island Bridge at Sandstone Point, we may have been able to work more closely as a Council and developer to achieve a first class development without the angst and differing points of view that have prevailed with both of the above developments. You simply have to be open and honest about what your ultimate aim is so that Council can guide you through those aspects that are potentially at odds with the planning scheme and the technical regulations that apply. You are the developer and I represent the Council. We both have roles established under legislation and a workable environment will have a healthier respect for each other’s role. I invite you to make contact so that we can advance the issues you have with each of these developments. JR”361 [205] This 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 onto 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”. In view of this evidence, the Court could give no weight to the Comiskey offers. The other offers relied on are conditional or date back to June 2005 and are not of 360 Submissions 201. 361 Exhibit 5, 349, 350. -- 60 of 65 -- 61 assistance in valuing the land on the basis of an unconditional contract on 20 July 2012 when evidence of comparable sales is available. [206] The applicant submits that the first Comiskey offer was before they had acquired what became the Comiskey land so the respondent’s contention, that offers by an adjoining owner are unhelpful, is not only incorrect but inapplicable to the facts. Were it necessary to consider the question of an offer by an adjoining owner, the applicant’s submissions362 on the point are correct. Such offers, while not proof of value, must be taken into account; see Phillipou & Anor v Housing Commission of Victoria.363 In Phillipou’s case, Barber J said at 259: “The board rightly took into account the potentiality of the land, the likelihood of the [adjoining owner] buying it, and being willing to pay something more than the market value because of its position, but just how much additional value should be allowed for this factor was a question of fact for the board.” The respondent’s case for valuation with commercial and residential uses [207] The respondent says that Mr Rabbitt’s assumption that a development like the Ovenden Plan was in prospect risk-free is fatal to his valuation approach. He has assumed that the mixed-use plan was properly reflecting the highest and best use of the land364 and not allowed for improvements.365 He also did not allow specifically for the 1.5 ha of land below the Q100 flood level although he had taken it into account.366 He did not make any allowance for the 1.39 ha of land in the electricity easement, where residential development would not be permitted.367 Mr Rabbitt acknowledged that any use higher than sport and recreation would depend on the availability of access.368 The valuation of $5,555,000 assumes that access is available369 and no allowance was made for the risk that is attendant on this. The top-down approach370 assumes that a purchaser would pay $55/m² when the adjoining Murphy land at 646 South Pine Road, his sale 2, showed $60.82/m².371 [208] Mr Gillespie adopted a bottom-up approach, appropriate when there is significant risk. This method involves looking at sales of land without higher potential where achievement of higher potential on the subject land carries a significant risk and adding 362 Submissions 206. 363 (1969) 18 LGRA 254. 364 T 4-64 L 45-47. 365 T 4-65 L 18-22. 366 T 4-65 L 37. 367 T 4-66 L 1-5. 368 T 4-66 L 14-23. 369 T 4-68 L 1-25. 370 T 4-69 L 20-21. 371 Exhibit 1 Volume 2, 146. -- 61 of 65 -- 62 an up-lift factor to allow for the prospects of achieving the higher potential.372 He explained that with a top-down approach where development prospects are “quite risky” the discount would have to be so high that at something over 50% it becomes meaningless to use it.373 [209] The approach used by Mr Rabbitt fails to allow for the risk in getting access374 which is only suitable so far for the current use.375 Improving it by obtaining the consent of Comiskey and the respondent would be a risk a purchaser would be advised of as would the issue of the capacity of the intersection from the Comiskey land to carry more traffic if access was gained to it through their land once it was developed.376 There would be costs associated with this, which have already been referred to. [210] Mr Rabbitt’s approach does not account for the planning risk, which has also already been discussed. This is so fundamental as to be fatal to his approach being able to be relied on. There is also a risk that the Ovenden Plan type development may not be a successful product in the market. Mr Rabbitt has not allowed for this. Possible commercial uses on the land may face competition from the Comiskey development and the respondent’s possible development.377 The valuation for the applicant’s alternative use [211] The applicant relied in the alternative on Mr Rabbitt’s valuation conducted on the basis of a development for sporting fields. This did not appear in any detail in the joint report but was explored in Mr Rabbitt’s report prepared for the hearing. At the time of the joint report, which was filed on 21 October 2013,378 Mr Rabbitt had noted that the site had in his opinion other uses besides a golf course and among them was sports playing fields.379 In his report dated 27 March 2014380 he included what he described as “a very broad plan” indicating that the site could be developed for sporting fields.381 Adopting this highest and best use led him to value the land at $3,535,000.382 In this case he made an allowance of $450,000 for the existing improvements, the dwelling, clubhouse, restaurant and parking.383 The plan makes little space available for spectators384 or parking for cars 372 T 6-75 L 3/T6-76 L 39. 373 T 6-76 L 8-14. 374 T 6-78 L 42/6-79 L 17, T 6-77 L 32/6-78 L 40. 375 T 6-72 L 19-24. 376 T 6-72 L 26/6-73 L 11. 377 T 6-79 L 43/6-80 L 22. 378 Exhibit 1 Volume 2, 93. 379 Exhibit 1 Volume 2, 111. 380 Exhibit 1 Volume 2, 123. 381 Exhibit 1 Volume 2, 156. 382 Exhibit 1 Volume 2, 161, T 4-65 L 5-6. 383 Exhibit 1 Volume 2, 161, T 4-65 L 11-16, L 24-26. 384 T 4-33 L 41-43. -- 62 of 65 -- 63 and buses.385 The plan does not take account of the presence of overhead power lines which were observed on the inspection to be not very high above the ground and at an elevation where ordinary knowledge would raise an expectation that sporting balls could reach. There are electricity pylons which may influence where sporting fields can be positioned and there would also be a need for substantial earthworks.386 Mr Rabbitt made it clear that his very broad plan was not being put forward as a design.387 [212] The cost of earthworks is a major matter. The isohypses (contours) shown on exhibits 18 and 19 show that there would be a need for substantial cut, fill and retaining wall works to be carried out in order to build sporting fields.388 Mr Ovenden agreed that this would mean major earthworks389 which had not been costed,390 a very important aspect.391 It will be recalled that the Terrigal Street land was already substantially contoured as playing fields. Mr Ovenden was of the view that even in that case there would still be considerable costs to “re-establish” that site for sport and recreation.392 The contour maps in exhibits 18 and 19 show that the height of the land varies within a range of around 13 metres. This would necessitate earthworks which, depending on the design chosen, could well in some places include contour adjustments over a significant part of that range. A prudent purchaser would consider that there was a very high likelihood that major earthworks would be required and be conscious that Mr Rabbitt’s valuation does not include the cost of those earthworks. Whatever they might be, they would be large and therefore costly. As Mr Ovenden agreed, this would be a very important aspect.393 Mr Rabbitt said that at the subject site the absence of flooding, as compared to Terrigal Street, would mean less maintenance costs.394 [213] Mr Rabbitt was aware that a sporting fields design would have to work around the relatively low powerlines395 but did not make any specific allowance for that limitation in his valuation. [214] The topography will require earthworks which were described in a question to Mr Rabbitt as “extensive”.396 In his reply he did not take any objection to the expression but agreed that he did not take into account the topography and the requirement for the 385 T 4-33 L 45/T 4-34 L 25. 386 T 4-34 L 27/T 4-36 L 35, Exhibit 18, Exhibit 19, T 4-94 L 21/T 4-95 L 25. 387 T 4-94 L 19. 388 T 4-36 L 5/T 4-37 L 7. 389 T 4-36 L 34-35. 390 T 4-36 L 37-39. 391 T 4-37 L 5-7. 392 T 4-37 L 2-3. 393 T 4-37 L 5-7. 394 T 4-96 L 9-19. 395 T 4-66 L 7-10. 396 T 4-94 L 24. -- 63 of 65 -- 64 earthworks needed to use the land for sporting facilities. This was “formally put to”397 Mr Rabbitt who replied: “No. I haven’t gone and tried to overload on topography. I do understand that some of those works would be required and you might have to look at something completely differently to what I have got there.”398 [215] Mr Rabbitt’s expression about not overloading on topography draws attention to the fact that a large earthworks component of the development in contemplation was not relevantly considered and its cost properly factored into his valuation. A prudent purchaser would find this valuation greatly lacking in information that would be central to treating it as being capable of realistically being relied on. The cost of the sports fields, Mr Gillespie said, would be “very considerable”.399 The only cost information is Mr Gillespie’s evidence of a figure of $5/m³ to shift earth. The quantity is not known. There would also be costs for turfing, irrigation and lights as well as retaining walls. Facilities such as change rooms would be required. Mr Gillespie estimated the value of this at the Terrigal Street site as about half a million dollars.400 Mr Gillespie would not recommend that a purchaser proceed without obtaining costings for the earthworks.401 This conduct is to be expected of a reasonably prudent purchaser. The respondent’s valuation [216] Mr Gillespie’s use of a bottom-up valuation approach is an orthodox one. Mr Rabbitt accepted as much.402 Mr Gillespie explained that it was appropriate where development prospects are quite risky.403 Mr Rabbitt did not have any particular problem with Mr Gillespie’s views of the sales that he, Mr Gillespie, used.404 He did not think that the 20% uplift for development potential would be enough to reflect the interest or potential that “might be there”.405 He did not provide another suggested figure for uplift. [217] Mr Gillespie’s use of the Lakeside Country Club sale had a 10 ha area and a nine hole golf course which are comparable features. However, the sale was in October 2009. The other golf course sales were of 18 hole courses which were far superior to the subject land.406 [218] In view particularly of the likely difficulties and uncertainty involved in coming to an acceptable design for a sporting fields development on the land, and the very substantial 397 T 4-94 L 21. 398 T 4-94 L 25-27. 399 T 6-84 L 19-20. 400 T 6-91 L 9-25. 401 T 6-91 L 35-38. 402 T 4-70 L 12-31. 403 T 6-75 L 4/6-76 L 39. 404 T 4-70 L 6-10. 405 T 4-70 L 44-46, T 4-71 L 4-7. 406 Exhibit 1 Volume 2, 108, T 6-73 L 40/6-75 L 2. -- 64 of 65 -- 65 earthworks of unknown cost in prospect, a prudent purchaser would not act on the valuation prepared by Mr Rabbitt. They would proceed to make an unconditional cash offer on the basis of Mr Gillespie’s valuation, it being made by a method in which more confidence could be placed. Conclusion on Issue B.3(c) [219] For the reasons given, the market value of the land at the relevant date will be that arrived at by Mr Gillespie, namely $1,800,000. Conclusion on fundamental issue A.1 [220] The highest and best use of the land at the relevant date, 20 July 2012, was for sport and recreation purposes. Conclusion on fundamental issue A.2 [221] The market value of the land as at the relevant date was $1,800,000. Orders 1. The value of the land is assessed in the amount of One Million Eight Hundred Thousand Dollars ($1,800,000). 2. The parties will be heard on the matter of costs attributable to stamp duty for replacement land. 3. The parties will be heard on the matter of interest. 4. Any application for costs is to be filed and served and any reply is to be filed and served as directed. WA ISDALE MEMBER OF THE LAND COURT -- 65 of 65 --