Beck & Ors v Department of Natural Resources, Mines and Energy [2004] QLC 14

LAND COURT OF QUEENSLAND CITATION: Beck & Ors v Department of Natural Resources, Mines and Energy [2004] QLC 14 PARTIES: 1. Douglas Haig Beck and Jacqueline Cooper 2. Colin L and Janita L Cunnington 3. Shane Thomas and Christina O’Connor 4. Gregory John Elliott 5. Edgar Balczun 6. Paul A and Gail M Griffin 7. Elaine V and Raymond A McAllister (applicants) v. Chief Executive, Department of Natural Resources, Mines and Energy (respondent) FILE NO: 1. AV2002/0574 2. AV2002/0575 3. AV2002/0228 4. AV2002/0577 5. AV2002/0576 6. AV2002/0680 7. AV2002/0518 DIVISION: Land Court of Queensland PROCEEDING: Appeals against annual valuation under the Valuation of Land Act 1944 DELIVERED ON: 2 March 2004 -- 1 of 38 -- 2 DELIVERED AT: Brisbane HEARD AT: Point Look, North Stradbroke Island MEMBER Dr NG Divett ORDER: The following appeals are dismissed for Beck and Cooper (AV2002/0574); Cunnington (AV2002/0575); Elliot (AV2002/0577); Balczun (AV2002/0576); and McAllister (AV2002/0518). The unimproved values as determined by the Chief Executive are affirmed in the sums of:  AV2002/0574 - $220,000  AV2002/0575 - $295,000  AV2002/0577 - $180,000  AV2002/0576 - $270,000  AV2002/0518 - $485,000 In respect of the Appeals of O’Connor (AV2002/0228) and Griffin (AV2002/0680), the determinations of the Chief Executive are aside, and the unimproved values of Lot 31 on PL 85421 (4 Billa Street); and Lot 6 on PL 85415 (12 Bambara Street) are determined respectively in the sums of Three Hundred and Sixty-Five Thousand Dollars ($365,000) (4 Billa Street) and Three Hundred and Twenty-Five Thousand Dollars ($325,000) (12 Bambara Street). CATCHWORDS: Valuation – Factors in valuation – Impact of planning controls – Duty of care of local government – Power to exercise discretion by Council – Departure from planning intent of policies. Valuation – Factors in valuation – Restrictions on use of land – Impact of development control plan – Conflict with planning scheme – Extent of legislative intention - Need for planning grounds to support deviation from legislative standards. Use of land – Approval of multiple dwellings – Conflict with approved minimum size parcels – Balance between public and private interests in exercising consent approvals by Council. Valuation – Use of valuation – Use of sales – Use of comparable sales – Whether sales for multi dwelling use or single dwelling use are comparable – Impact upon valuation. Statutory valuation – Valuation of Land Act 1944 – s.17 – Residential use – Potential for subdivision to be ignored – Meaning of subdivision – Whether partition has occurred with multiple dwellings. Statutory valuation – Valuation of Land Act 1944 – Factors in valuation – Unimproved value – Relativity. -- 2 of 38 -- 3 APPEARANCES: Professor DH Beck and Mr CL Cunnington for the appellants Mr G Smith for the respondent Background: [1] These seven matters are located at Point Lookout, North Stradbroke Island, and situated at  19 Waller Court – Lot 42 on SL 11745 (Beck and Cooper)  36 Booran Street – Lot 2 on SL 11009 (Cunnington)  4 Billa Street – Lot 31 on PL 85421 (O’Connor)  140 Tramican Road – Lot 50 on PL 85446 (Elliott)  3 Waller Court – Lot 43 on SL 11745 (Balczun)  12 Bambara Street – Lot 6 on PL 85415 (Griffin)  117 Tramican Road – Lot 23 on PL 85438 (McAllister) All parcels are located in the Parish of Stradbroke, and each has good access to a bitumen sealed carriageway with concrete kerbing and channelling. All normal urban utility services are available. [2] Point Lookout is on the eastern ocean side of North Stradbroke Island, and is serviced by an island bus service to Dunwich, Amity Point and Point Lookout. Transport to the island is by water taxi or vehicular ferry from Middle Street, Cleveland, which is situated about 26 kilometres east-south-east of the Brisbane GPO. Travelling time to the island varies from about 40 minutes to 1 hour. [3] Each of the seven subject parcels is zoned Special Development under the Redland Shire Council Town Planning Scheme of 20 February 1988, and is designated as Urban Residential under the Redland Shire Strategic Plan. Each of the subject lands is used as a single residence site. The current zonings were effective at the current date of valuations of 1 October 2001. The key issues are the nature of the lands, planning constraints, the use of the land, changes in the valuations, relativity, the method of valuation and comparison of sales. [4] On 25 February 2002 the Chief Executive issued valuations of the subject lands at:  19 Waller Court - $220,000  36 Booran Street - $295,000  4 Billa Street - $420,000  140 Tramican Road - $180,000  3 Waller Court - $270,000  12 Bambara Street - $345,000  117 Tramican Road - $485,000 -- 3 of 38 -- 4 Following objections the Chief Executive confirmed those unimproved values on 16 July 2002. The appellants have now appealed claiming the unimproved value should more properly be:  19 Waller Court - $110,000  36 Booran Street - $134,000  4 Billa Street - $350,000  140 Tramican Road - $112,000  3 Waller Court - $200,000  12 Bambara Street - $250,000  117 Tramican Road - $385,000 [5] Douglas Haig Beck and Colin Leonard Cunnington generally represented and gave evidence for all seven parties, calling evidence also from Shane Thomas O’Connor, Julie Elliott, Edgar Balczun and Paul Anthony Griffin. The EV and RA McAllister appeal, at their request, was considered on the papers supplied to the Court, as that appeal closely mirrored the general evidence from the other six appellants. Because of the common nature of the appeals, and as the appellants generally saw their appeals as representing a wider concern of many local residents in the older area of Point Lookout, the seven matters were seen as reflecting test cases on the major broad issues identified. The appellants argued that the thrust of their appeals was aimed at seeking clarification of the principles that should be followed in valuing residential properties in the restricted market at Point Lookout. [6] Mr Beck is a Professor of Architecture, but comes to the appeals not in his professional role, but as a concerned citizen. Mr Cunnington is a publishing consultant who also agrees that he has no formal training in valuation matters. Mr G Smith, Senior Legal Officer appeared for the respondent, calling evidence from George Dudek, the departmental registered valuer responsible for determining the valuations. With the agreement of the parties a full inspection of the subject lands and sales information was undertaken. Unsuccessful preliminary conferences under the chair of the Judicial Registrar of the Court were held in March 2003. Grounds of Appeal – [7] While there was some variation in the respective grounds of appeal, the major thrust of each appeal may be summarised as follows:  The land is exclusively used for the purposes of a single dwelling house within the meaning of s.17 of the Valuation of Land Act 1944 (the Act).  The unimproved value of the land is enhanced by the potential use, in its unimproved condition, for more than one detached dwelling, resulting in a higher -- 4 of 38 -- 5 unimproved value if the provisions of s.17 of the Act are not applied in making the valuation.  The valuations appealed against: (a) fail to apply the provisions of s.17 of the Act; and (b) reflect levels of value established by sales of residential lots, the prices of which are influenced by the potential use referred to above. [8] In addition to the above grounds the appeal of O’Connor (4 Billa Street) also raises the matter of noise intrusions upon the subject land, and relativity with adjoining parcels. The appeal of Elliott (140 Tramican Street) also raises the matter of intrusions from an adjoining sewerage treatment plant; and the appeal of McAllister (117 Tramican Street) raises the difference between commercial and private residential use of the lands. The Nature of the Lands – [9] There is general agreement between the parties in respect of the overall nature of each of the subject lands. However Mr Cunnington argues that vegetation and adjoining buildings at 36 Booran Street restrict views of the ocean to just glimpses from the top level of the existing two storey building. However he concedes that there are reasonable ocean views from a whale watching tower that he has constructed on the roof of the dwelling. He argues that such views are of lesser value than ocean views from the habitable rooms of the dwelling. Mr Dudek has valued the Cunnington land as having ocean views “from the top level of the dwelling”. Mr Dudek had formed that opinion by standing on the adjoining parcel at about the height of the second level of the dwelling. Mr Dudek agrees that ocean views from the whale watching tower are of lesser value compared to ocean views obtainable from the dwelling itself. He also agrees that the restricted ocean views are currently not able to be improved due to planning controls on removal of the large Box trees in the area. [10] It is also agreed that the Beck land (19 Waller Court) is a heavily wooded parcel, similar to the Cunnington site (36 Booran Street). Mr Beck speculates that where ocean views are not available, such as on the inland parcels located near the seven subject lands, then the wooded environment tends to be conducive to the erection of single residence dwellings, similar to the subject lands. [11] In respect of the O’Connor land (4 Billa Street), Mr O’Connor agrees that the land has excellent panoramic ocean views towards Moreton Island. However he argues that both of his adjoining neighbours to the south-east of the subject land have better ocean views because of their higher elevation above 4 Billa Street. Because of the steep fall from 4 -- 5 of 38 -- 6 Billa Street towards the ocean views towards the north-west, Mr Dudek argues that those views are more likely to remain unobstructed than views from the two adjoining parcels to the south-east. The matter of relativity with those two parcels is discussed later. [12] Another matter of concern for Mr O’Connor is problems with drunken behaviour from patrons of the nearby Stradbroke Island Hotel site, immediately across East Coast Road from 4 Billa Street. Mr O’Connor agrees that ocean views across the hotel site will not be obstructed by any reconstruction of the hotel building. That site was the subject of a recent successful appeal to the Court of Appeal in respect of a redevelopment approval. (Stradbroke Island Management Organisation Inc & Ors v Redland Shire Council & Anor [2002] QCA 2 August 2002.). However Mr O’Connor argues that while the ocean views are good from 4 Billa Street, they are less expansive than the panoramic ocean views from Tramican Street, although Billa Street is closer to the beach. [13] The matter of noise by drunken patrons is seen as a repetitive occurrence, usually associated with major sporting events on the Island. Mr O’Connor’s immediate neighbour (Zuttion) has apparently regularly complained to the mainland police at Cleveland, as the Zuttions operate a “Bed and Breakfast” commercial operation. However the isolation of the Island from the mainland virtually results in no official response to the complaints. The adjoining “Bed and Breakfast” operation also adds to the noise and traffic at 4 Billa Street. Mr O’Connor has occupied 4 Billa Street as his permanent residence since 1975, and advises that often Billa Street is fully parked out by visitors to the hotel. [14] In the matter of Elliot (140 Tramican Road), Mrs Elliot advises that smells from a sewerage line vent pipe adjoining 140 Tramican Road regularly emits pungent and unpleasant odours, which, depending upon the prevailing south-easterly winds, penetrate her house. The smells are so regular and unpleasant that Mrs Elliot maintains a record of the level of occurrences of those smells. Mr Dudek concedes that such odours were previously acknowledged in former valuations, and that reductions in the values has been maintained in the relativities in that area. Mrs Elliot notes that 140 Tramican Road is the furtherest residence from the beach in that area, and the closest to the sewerage treatment plant, and she questions whether the $57,500 allowed in comparisons with Sale 3 is sufficient to allow for those disabilities. She feels Sale 3 is superior to her property. [15] Mrs Elliot also advises that noise from a grease trap truck accessing the sewerage treatment plant, and increased nuisance from trail bike riders into bushland immediately adjoining 140 Tramican Road, are now a greater problem than previously agreed when the allowances were negotiated with the respondent in 1992. Mrs Elliot advises that the -- 6 of 38 -- 7 grease trap truck passes her land about 12 times a day. She argues that the previous discount of $10,000 in 1992 should now be increased to reflect the greater disabilities. Mr Dudek agrees with that conclusion, but argues that without sales evidence to demonstrate the level of that increased disability, it is difficult to quantify any further reduction in the valuation of 140 Tramican Road. [16] In the matter of Griffin (12 Bambara Street), Mr Griffin challenges Mr Dudek’s opinion that “more substantial ocean views” would be available from a second level building on 12 Bambara Street. The field inspection confirms that ocean views are obstructed from 12 Bambara Street, and Mr Dudek concedes that ocean views are restricted by trees outside the property, and clearance of those trees is unlikely. On reflection, Mr Dudek offered his professional opinion that the unimproved value of 12 Bambara Street could be reduced by about $20,000 from $345,000 to $325,000 because of the more recent growth of vegetation, which now obstructs any former potential ocean views. An adjoining vacant two level older dwelling in poor condition, has also been restricted more recently in respect of ocean views from the second level. Any future redevelopment of that adjoining site will also obstruct ocean views from 12 Bambara Street. That property is currently part of a deceased estate which has still to go to probate, and any redevelopment of that site is a matter for future consideration. [17] In respect of the Balczun appeal (3 Waller Court), Mr Balczun argues that the current dwelling is located in the centre of that parcel, thus preventing any further buildings either in front of, or behind, the existing dwelling. Impact of Rating Arrangements – [18] It is the major concern of all appellants that the current increase in rating burden is becoming almost intolerable as a consequence of the increasing values. Mr Balczun in particular emphasises that his total indebtedness to the Redland Shire Council for rate charges represents about 27% of his annual income. Mr Dudek confirms that while the unimproved value system forms the basis of the preparation of rating charges for local government, it is entirely at the discretion of those councils as to what rating factor is applied in each case. Mr Dudek offers comment that the Redland Shire Council has more recently moved to change its rating policy so as to address the problems now occurring as a consequence of major increases in the property market. However that relates only to a subsequent revaluation, and is outside the scope of the current matters under the Valuation of Land Act. -- 7 of 38 -- 8 Changes in the Values – [19] Mr Dudek advises that the revaluation of the Point Lookout area at 1 October 2001 was the first occasion that he had undertaken a revaluation of that area. However he advises that departmental records contain much information about the respective properties, and previous relativities with surrounding parcels had been maintained. Mr Dudek has also undertaken previous valuations for other purposes on the Island, and he was familiar with the locality. As a result of the indepth discussions during the several days of the current matter, Mr Cunnington observed that there was now a clearer understanding of the valuation process as undertaken on the Island by Mr Dudek. [20] It is the argument of all the appellants that much of the reason for the large increase in valuations at Point Lookout has occurred, in part, as a consequence of the operations of the Development Control Plan 3 (DCP3), covering that area. The DCP3 was formerly introduced by the Redland Shire Council on 9 February 1996 (Exhibit 4 – AV2002/0574). To support that scenario Mr Cunnington provides a copy of a statistical analysis of the Point Lookout market from 1992 to 2001. (Exhibit 4 – AV2002/0575). That analysis was prepared by Australian Business Research, presumably from departmental sales information from local real estate agents. Mr Cunnington was unable to confirm the actual source or reliability of the data, but seeks assistance only in respect of a broad trend in the pattern of sales. [21] Mr Cunnington argues that the statistics of moving median sales in that area suggest that prior to the DCP3 in 1996 there was evidence of a trend of about four single residence sales to every one multiple residence sales. He argues that since the DCP3 in 1996 that general pattern has reversed such that there were now about three multiple dwelling sales for every single residence sales. He argues that that indicates a general watershed in sales patterns in that area since the DCP3. Mr Cunnington also notes that in general terms the level of unimproved values had increased about 60% in the five years between 1992 and 1996, while it then increased about 200% in the five years following the DCP3. Mr Cunnington bases that assumption upon a small sample of two of the subject properties at 36 Booran Street (Cunnington) and 3 Waller Court (Balczun). [22] However Mr Beck concedes that property sales increases at Point Lookout were not unrelated to the general property market in the Brisbane area, where some values had increased as high as 200% in a single year. He agrees that there is a general rise in the market for related properties in near ocean lands throughout South-East Queensland. Mr Beck concedes that there could be other factors affecting land values at Point Lookout other than the effects of the DCP3. -- 8 of 38 -- 9 [23] Mr Cunnington concedes that the general trend from the statistical analysis (Exhibit 4) reveals that increases in the median value post-DCP3 between 1996 and 1998 only average about 10.7%; while the increase from 1999 to 2001 averaged 16.7%. Mrs Elliot also agrees that the analysis of the unimproved value of her land (140 Tramican Road), had remained steady at $80,000 in 1993 until 1996, then increased 18% from 1997 to 1998, rising more steeply to 75.4% from 1999 to 2001. (Exhibit 2 – AV2002/0577). Clearly the trend in changes in the market reflected by those two analyses confirm that the major change has occurred in the last 2 years prior to the current valuation at 1 October 2001. It was also confirmed that similar increases are expected in the next revaluation. [24] The appellants argue that the relative small increases in values post the DCP3 were as a consequence of the market taking some time to assess the implications of the DCP3. Once it was more widely known of the possibility for multiple dwellings under the DCP3 guidelines, they argue that land values have escalated as investors now seek to provide holiday homes for a rapidly expanding market. They argue that it is unfair to permanent residents living in single dwelling permanent residences. Mr Griffin notes that his property at 12 Bambara Street has risen in unimproved value from $80,000 in 1990 to $345,000 in 2001. [25] Mr Dudek advises that the trend at Point Lookout is in line with similar rises in the property market in South-East Queensland, where land has close proximity to ocean or water views. He notes that waterfront lands have particularly increased in 2001 and 2002, with rises of 70% in each year. Mr Dudek agrees in part that the DCP3 may have had some part in the rise in sales values, but argues that any direct correlation is purely speculation at this time. [26] Mr Dudek also rejects any use of such statistical analysis which he notes has little application in valuation methodology. While he provides no evidence to support his conclusions, Mr Dudek advises that his assessment of the subsequent valuation at Point Lookout at 1 October 2002, indicates that properties without ocean views are presently experiencing greater increases than lands with ocean views. He agrees that such trends are of no assistance in the valuation of 1 October 2001, but argues that those trends support the overall scenario of a very restricted market situation, where normal market balances tend to be distorted. Planning Controls – [27] The major planning controls impacting the Point Lookout area, are enshrined in the DCP3, which applies to all forms of development in that area, including the erection of -- 9 of 38 -- 10 buildings. It is the appellants’ argument that the DCP3 has de facto introduced two distinct classes of residential land use, being single residences or multiple residence purposes. However Mr Beck notes that the DCP3 is silent in respect of the minimum area for land parcels upon which multiple dwellings may be built. As part of two local community organisations, the appellants have unsuccessfully attempted to lodge objections against several decisions of the Redland Shire Council (the Council) in respect of multiple dwellings in the area. The appellants argue that the Council is not consistently administering the DCP3 to ensure that the “natural environment and character of Point Lookout is maintained”, in accordance with s.1.3 of the DCP3. [28] As a measure of the changes now becoming evident in the area, the appellants have sampled 272 land parcels in the Island residential precinct, extending from near Midjimberry Road in the east to Karboora Drive in the west, and north to Mooloomba Road. The sample does not extend to the beachfront lands which were seen as reflecting a different level of market value. The sample results reveal the following land uses:  existing single dwellings pre DCP3 – 167 Lots (61%) – 167 dwellings  existing single dwellings post DCP 3 – 25 Lots (9%) – 25 dwellings  existing multiple dwellings pre DCP3 – 17 Lots (6%) – 35 to 40 dwellings  new or proposed multiple dwellings post DCP3 – 36 Lots (13%) – 75 to 80 dwellings  vacant land – 28 Lots (10%) The total of 272 lots represents about one third of all residential parcels at Point Lookout, and generally reflects parcels without ocean views. [29] Mr Cunnington argues that the sample results confirm the major change in the growth of multiple dwellings since the DCP3 in 1996. He argues that there is no limit in the DCP3 for the minimum size of parcels suitable for multiple dwellings, noting only the need for a maximum of 30% site coverage, and separation requirements of a 6 metre setback from the road, and 6 metres between the separate dwellings. Mr Cunnington was unable to confirm whether there was any policy guidelines in respect of the minimum lot size for multiple dwellings in the strategic plan for the shire, or whether the strategic plan specified the maximum population density allowable in the residential areas. Mr Cunnington confirms that the current policy for multiple dwellings in Point Lookout under the DCP3 is for a consent decision by the Council. [30] Mr Beck offers comment from the bar that from his understanding of the DCP3 it is the lowest level of planning controls, which is exercised under guidance from the overriding -- 10 of 38 -- 11 town plan, and the more broader planning policies established in the strategic plan. (S.1.5 of the DCP3). He notes also that s.1.5 of the DCP3 directs that “where there is an inconsistency or conflict between the Town Planning Scheme and the Point Lookout DCP, the provisions of the Point Lookout DCP shall prevail to the extent of the inconsistency.” From his understanding of the Strategic Plan for the Shire, Mr Beck concludes that the maximum population density for residential zoning is 60 persons per hectare. Based upon an average parcel area in the Point Lookout island residential precinct of between 700 m² to 750 m², the maximum population numbers would reflect between 3 and 4 people per dwelling site. He notes that guidance from the Strategic Plan provides some incumbrances to the development of multiple dwellings upon small parcels. [31] Mr Beck also advises that the town planning scheme for Redland Shire establishes the minimum parcel size for medium density development at 800 m², with a minimum width generally of 20 metres. Mr Dudek agrees with that understanding. However Mr Beck notes that the DCP3 provides a standard for rear (battleaxe) lots in s.4.4.10, which specifies a maximum of two dwelling units, or one dwelling unit per 500 m² of site area, excluding the areas of any access way or easement. He notes that generally at Point Lookout, the rear (battleaxe) lots have a minimum area of 1,100 m² to 1,200 m². On that basis Mr Beck observes that the only area where the DCP3 is not silent on minimum lot sizes, is where it establishes a scenario for rear (battleaxe) lots, which is consistent with the standard for such lots in the town plan of 1,200 m². (Town Plan chapter 25 s.12(2), page 124). Mr Beck advises that a large hatchet shape parcel at 38 Booran Street (area 1,630 m²), behind Mr Cunningtons’ land, has consent development approval for three detached multiple dwellings, and that parcel has good views above the vegetation on the Cunningtons’ land. [32] In respect of the development approval process under the DCP3, Mr Beck advises that from his experience any application to the Council is assessed by internal Council officers, before making recommendations to a development assessment committee, and then to the Council for approval. Mr Beck’s experience has indicated to him, from discovery of Council documents as part of appeals, that the Council officers have a less than complete understanding of the relevant planning policies in the Strategic Plan as it relates to the DCP3. Mr Beck comments that, in his opinion, as a result of inconsistency between the implementation of the DCP3 and the minimum standard size parcel under the Town Plan, most of the lots in Point Lookout, which are less than 800 m², should not have been developed for multiple dwelling purposes. -- 11 of 38 -- 12 [33] Mr Dudek also confirms that from his understanding of the DCP3, and following inquiries from Council officers, he believes that approval for multiple dwellings “would be difficult to obtain if the land was not substantially sizable”. (Transcript 137). Mr Dudek also advises that Council officers provide no indication of the likely success of a potential application to develop, until a formal application is received and investigated. The risk of refusal always lies with the owner in such cases. Mr Dudek also confirms, after talking with Council officers, that he understands that there is no minimum area for subdivision in the DCP3. Mr Dudek notes that the DCP3 represents the Town Plan because the town plan zoning is actually a special development (Point Lookout) zone. (DCP3 s.3.3 and also town planning scheme part II – zoning division 3, page 16). Use of the Lands – [34] The availability of sewerage is perceived by the appellants as a further factor in deciding whether a multiple dwelling was likely to proceed upon parcels in the Point Lookout area. While they provide no definitive evidence to that conclusion, their opinions are based upon information widely disseminated by real estate agents in the area. It is the appellants’ opinion that the lack of sewerage disposal in some parts of Point Lookout has historically constrained the development of multiple dwellings upon unsewered parcels. It is now their concern that with the proposal by the Council to reticulate sewerage to all parcels at Point Lookout by 2005, then the growth in multiple dwelling developments was likely to escalate. The appellants therefore seek to differentiate land parcels used for single dwelling purposes from those used for multiple dwelling purposes; and to clarify concessions in the valuations under s.17 of the Act. [35] While the appellants offer no expertise in such matters, they observe that the results of their sample survey undertaken in para [28] indicate, in their opinion, that market pressures are now focussing on sewered land parcels, generally without ocean views, in order to secure multiple dwelling developments. They also argue that s.17 of the Act concessions are not being applied to single dwelling properties, referring to a community action group letter of 1 March 2002 to the Minister in respect of that matter. (Exhibit 3). The appellants note the ministerial reply of 28 March 2002 that advises that Residential A and Residential B (multiple dwelling) lands are reflecting similar market levels, as the Council’s planning policies at Point Lookout do not distinguish between those two uses as far as development potential is concerned. [36] In their response to the Minister of 12 June 2002, the community action group sought clarification of the meaning of s.17 of the Act, noting its reference is to the use of the land -- 12 of 38 -- 13 and not to its zoning. That letter also provided examples which the community group believe demonstrated the existence of separate property markets for single dwelling and multiple dwelling purposes. Those sales are discussed later in this matter. The ministerial reply of 1 July 2002 confirmed the general approach adopted by the respondent, and the objection and appeal processes subsequently followed. [37] Mr Beck confirms that as a Professor of Architecture his understanding of the nature of multiple dwellings distinguishes duplex dwellings, which he advises the latter refers to joined apartment buildings, usually on two levels, but not separate dwellings. He also suggests that such “Duplex dwellings” are different from townhouses or semi-detached dwellings. However he concedes that he is not familiar with the definition of “single unit dwelling” under s.17 of the Act. However Mr Beck argues that in his opinion, generally multiple use sites tend to reflect higher values than single use sites for development of residential lands. However he agrees that with selected sites with grand ocean views, those two land use types might reflect comparable values. [38] To demonstrate his understanding of the difference in market levels for single dwellings and multiple dwellings sites, Mr Cunnington draws comparisons with various parcels on a per square metre basis, which he argues is an important criteria for developers, due to the separation requirements of the DCP3. (See para [29]). Mr Cunnington also agrees that the value of a land parcel is relative to its highest and best use in the marketplace. Mr Dudek rejects a pro rata per square metre approach, or a per unit approach, as he argues that residential lands are purchased on a site value basis. [39] Mr Dudek disagrees that there should be some concessional value applied to single dwelling sites at Point Lookout. He argues that the purchasers of land for either single dwelling or multiple dwelling use must meet the market as it exists. He advises that from discussions with local real estate agents, the demand for higher use purposes greater than residential, would relate only to retail or tourist facilities. He argues further that any parcels in the backstreets of Point Lookout would not qualify for a higher use purpose. [40] Mr Dudek argues that as there is no difference in market value for different residential purposes, then the application of s.17, which must be considered, results in a nil concessional adjustment where single dwelling units occur. He advises further that in the constrained market situation at Point Lookout, there was no reason to doubt that the current purchasers or vendors were other than prudent in their sale negotiations. The decision in those cases whether to build a single dwelling or multiple dwellings rests entirely upon the personal desires of the purchaser. -- 13 of 38 -- 14 [41] Mr Dudek bases that conclusion upon his understanding of the record of new dwellings constructed at Point Lookout in the 12 months preceding 1 October 2001 as follows:  Three single residences  Three two-unit duplexes  One three townhouse development On that basis he concludes about equal preference for either single or multiple dwelling purposes. Mr Dudek offers no comment upon the results of the appellants’ survey (para [28]), without a detailed examination of those results. Mr Smith argues that the relevant information in respect of the development trends relates to the issues of the date of valuation at 1 October 2001. Mr Dudek notes that the appellants’ survey relate to the situation at 2003, well after the relevant date, but maybe relevant to a later revaluation period. [42] Mr Dudek also comments that the fact that an approval for a multiple dwelling exists upon a parcel, does not necessarily prove that a multiple dwelling will automatically be developed. Mr Beck agrees with that observation, as he notes that he personally had an approval to develop a multiple dwelling on 19 Waller Court in 1998, but later elected to construct a single dwelling on that site. Mr Dudek also advises that it is not uncommon on some parts of the mainland in Redland Shire for single residences to be built upon sites where multiple residences could be developed with the consent of the Council, similar to at Point Lookout. Mr Dudek notes that single residences are regularly built upon Residential B lands at Cleveland Point in Ormiston. [43] Mr Dudek also advises that it is current departmental interpretation of s.17 of the Act to actually include any parcel of land where no more than two dwellings are in one ownership, and can be subdivided, and where buildings can also be separately located on the parcel. However the application of s.17 still requires evidence from the market that there is a difference in value for single use or multiple use purposes. The Method of Valuation – [44] In offering an alternative method of valuation Mr Beck seeks to provide a logical, but unorthodox approach, to the determination of a s.17 concession. He poses such an approach, noting that the Act specifies that s.17 applies to a parcel upon which a single dwelling house exists, and he therefore speculates it should not apply to a vacant parcel of land. Mr Beck accepts that valuation methodology reflects more a considered art rather than a science, noting the relevance of the considered opinion of valuation expertise. -- 14 of 38 -- 15 [45] Mr Beck concludes from his analysis of his survey, that land parcels for single residence sites, reflect about $200 per square metre, while parcels for multiple sites reflect about $400 per square metre. He bases that upon analyses of a sale at 20 Bigoon Street of area 617 m² which sold for $240,000 in July 2001. After redevelopment into two multiple units, he concludes separate unimproved values for each 308.5 m² parcel at $120,000 ($390 per square metre). He compares that with another sale at 34 Bigoon Road of 706 m² for $253,000 in July 2002, which he analyses at $358 per square metre, and also a sale at 16 Waller Court of area 951 m², which sold for $362,000 in July 2002, reflecting $380 per square metre. [46] Mr Beck argues that the existing dwelling on 16 Waller Court has a replacement value of $200,000, and a depreciated value of about $170,000. He argues that if the depreciated value of the existing dwelling is deducted from the total sale price of $362,000, the resulting value of 16 Waller Court land, if used as a single residence site, is only $190,000 or $200 per square metre. Mr Beck agrees however that 16 Waller Court resold for $410,000 in January 2003, after major improvements were completed by the purchaser in July 2002, but after the sudden death of one of those purchasers. Mr Dudek was aware of the tragic details surrounding the second resale, and cautions against adopting the later sale under those conditions. [47] Mr Beck further analyses later improved sales at 30 Bigoon Road in January 2002 and 7 Waller Court in February 2003. After allowing for estimated building costs and developers profits, Mr Beck concludes rates of $411 per square metre (7 Waller Court) and $374 per square metre (20 Bigoon Road). He then compares that to a sale of vacant land at Lot 19 Mooloomba Road of area 625 m² in March 2003 for $330,000 ($528 per square metre), which was for multiple dwelling purposes. Mr Beck challenges the residual value of the existing owner built “island timber” home on 7 Waller Court, which he argues should reflect about $350,000, rather than an added value of only $100,000 as concluded from the sale price of $445,000, and a land component of $346,000 ($411 per square metre). He believes the more appropriate land value should reflect $445,000, less $280,000 or $196 per square metre for single dwelling purposes. He draws similar conclusions from a sale of a multiple unit at 34 Booran Street, which has an area of 717 m² for two units, and a total unimproved value of $350,000 ($488 per square metre). [48] In a further attempt to understand the market for island lands with ocean views extant, Mr Beck seeks to apply premiums for the differing quality of ocean views available. He analysed the sales supplied by Mr Dudek, and concludes the following approximate -- 15 of 38 -- 16 premiums for views that could be added to basic island parcel values without ocean views:  Restricted ocean views - $90,000  Good ocean views - $155,000  Very good ocean views - $172500  Superb panoramic ocean views – $302,500 Mr Dudek does not challenge that estimated premiums for views, as he feels they could be supported by other sales evidence in the area. [49] Mr Beck then seeks to apply those premiums for views to the properties at:  12 Galeen Street – 632 m² (good views) sold March 2001 for $377,000, and an unimproved value of $345,000 (1.10.2002).  19 Galeen Street – 599 m² (restricted views) sold September 2001 for $345,000, and an unimproved value of $270,000 (1.10.2002).  16 Galeen Street – 675 m² (good views) sold February 2002 for $436,000, and an unimproved value of $330,000 (1.10.2002).  36 Booran Street – 702 m² (restricted views) at an unimproved value of $325,000) (1.10.2002). [50] By adopting his approach to those sales, and reducing those figures by the premiums in para [48], Mr Beck then concludes base values for each of the four properties as if they had no views available. By then deducting from those base values his estimates of the value per square metre for unimproved land as outlined in para [45], Mr Beck concludes residual values for the existing improvements as a check on his method of analysis. In each case he notes that the resulting estimate of unimproved value of each of the above four parcels is between 14% and 41% less than the unimproved values applied by the Chief Executive. [51] Mr Beck then applies a similar approach to other properties and notes the following differences with the determined unimproved values by the respondent: Property Unimproved Value Unimproved Value Difference by appellants by respondent 7 Cumming Parade $499,500 $540,000 9% less 34 Booran Street $220,700 $175,000 20% more 35 Cumming Parade $672,500 $410,000 39% more [52] Mr Dudek rejects such a piecemeal approach, as he notes that the added value of improvements is usually considerably less than the replacement value. He also notes that -- 16 of 38 -- 17 he would only adopt the rate per square metre method of valuation, where multiple dwellings were involved, and not for single dwelling purposes. Mr Beck argues that his analysis indicates that the current approach by the respondent would suggest that the single residence sites are being overvalued by about 20% to 40%; while multiple dwelling sites are being undervalued by corresponding levels. However the appellants concede that they are not familiar with the definition of unimproved value under the Act, noting that their existing properties are currently developed with substantial dwellings. [53] To further demonstrate his proposed method of analysis, Mr Beck provides an analysis of the following sales:  20 improved sales with views (Exhibit 6)  4 vacant sales with views (Exhibit 7)  6 improved sales without views (Exhibit 8) He argues that those analyses indicate that the 20 improved sales with views (Exhibit 6) generally varied from unimproved values by the Chief Executive by between 11% (low) to 25% (high). The four vacant sales with views (Exhibit 7) varied from the Chief Executive’s value by between 1.5% (high) to 9% (high). The six improved sales without views (Exhibit 8) varied from the Chief Executive’s values by 18% (high) to 50% (low). [54] Mr Dudek rejects those comparisons noting the inconsistencies of the added value of improvement errors, and also the incorrect method of adopting a rate per square metre for the lands. Mr Dudek also rejects the appellants’ allowance of a “developer’s profit margin”, in analysing the value of improvements, which he notes was rejected in the matter of State Government Insurance Office v Valuer-General (1980-81) 7 QLCR 171. Mr Beck advises that the developer’s profit margin of 30% was provided to him by a developer acquaintance, and was merely an opinion on that level of margins. Comparison of Sales – [55] The appellants have not sought to determine the unimproved value of their subject lands by direct comparisons with sales evidence, but rely upon their analyses of the method of valuation to demonstrate errors in the respondent’s approach. They argue that the correct method of valuing sites where multiple dwellings are proposed, is to adopt comparisons on a rate per square metre basis. Adopting that approach, and relating it to the particular development of single or multiple dwelling usage, the appellants conclude the different levels of $200 per square metre (single dwelling) and $400 per square metre (multiple dwellings). [56] To support his valuations Mr Dudek provides the following sales evidence: -- 17 of 38 -- 18  Sale 1 – (35 Cumming Parade – Lot 24 on PL 85444). This is a 1,250 m² hatchet shaped vacant parcel which falls moderately from the street. There are reasonable ocean views from ground level, and enhanced ocean views from an upper level of a building. The sale has subsequently been developed with two residential dwellings. The sale sold in October 2000 for $412,000, was analysed at $410,000, and applied at $410,000. The previous unimproved value at 1 October 2000 was $290,000 (41% increase). [57]  Sale 2 – (7 Cumming Parade – Lot 42 on PL 85446). This is a 985 m² improved sale with a small cottage which was mostly demolished, and only car accommodation at the front retained at an added value of $10,000. The sale is below street level, falling moderately from the street. The sale has some of the best ocean views on the Island. The sale sold in March 2001 for $556,000, was analysed at $546,000, and applied at $540,000. The previous unimproved value at 1 October 2000 was $385,000 (40% increase). [58]  Sale 3 – (106 Mooloomba Road – Lot 4 on PL 85430). This is a 574 m² vacant parcel on the main busy road through Point Lookout. The sale is level and falls slightly towards the rear. Although near to the beach, there are no ocean views available. The sale sold in August 2001 for $285,000, was analysed at $283,000, and applied at $237,500. The previous unimproved value at 1 October 2000 was $170,000 (40% increase). [59]  Sale 4 – 8 Moolgalba Road (Lot 15 on PL 8541). This is a 759 m² improved parcel with a small fibro cottage of no added value. The land is near level and at street level, with potential good ocean views from a future dwelling. The sale sold in December 2001 for $432,500, was analysed at $430,500, and applied at $385,000. The previous unimproved value at 1 October 2001 was $275,000 (40% increase). [60] In seeking comparisons Mr Dudek draws the following conclusions: Subject lands Sale 1 Sale 2 Sale 3 Sale 4 $410,000 $540,000 $237,500 $385,000 19 Waller Court vastly superior vastly superior similar superior 36 Booran Street vastly superior vastly superior inferior superior 4 Billa Street similar superior vastly inferior slightly inferior 140 Tramican Street vastly superior vastly superior slightly superior vastly superior 3 Waller Court vastly superior vastly superior inferior superior 12 Bambara Street superior vastly superior inferior slightly superior 117 Tramican Street inferior slightly superior vastly inferior inferior Mr Dudek also considered a further four sales, although they were generally after the relevant period, and were not included in his statement. -- 18 of 38 -- 19 [61] In explaining his selection of his four sales, Mr Dudek argues that his Sales 2, 3 and 4 were purchased for the construction of a single dwelling; while Sale 1 demonstrates a sale for two residences. However Mr Dudek offers his professional opinion that the use of Sale 1 for multiple residences is not the highest and best use of that site. He argues that his four sales reflect purchases where the highest and best use of those lands were for single dwelling use. He notes a similar pattern of single dwelling use on sites where multiple dwellings were permissible at Cleveland Point in Ormiston. He notes that pattern has been replicated where certain areas, such as Point Lookout, have particular desirability factors. He argues also that his selected sales represent a broad cross-section of the current overall sales evidence at Point Lookout, extending across all levels of the market. Mr Dudek also notes that Mr Beck’s sale of 16 Waller Court in July 2002 (para [45]), reflects a late sale well after the date of valuation of 1 October 2001, and in a rising market. On that basis he argues that it is not relevant to the current matters. Mr Beck notes that Sale 4 (8 Moongalba Road) is in a tourist precinct, and not the residential precinct. [62] In respect of Mr Beck’s sale at 12 Galeen Street (para [49]), Mr Dudek rejects comparisons on the basis of the unimproved value of $345,000 at 1 October 2002, as he notes that reflects a much later period. Mr Dudek notes that the unimproved value of 12 Galeen Street at 1 October 2001 was only $310,000, reflecting a quite reasonable added value of improvements at that day of $67,000 for that old two storey fibro house. Mr Dudek also advises that he has inspected 49 sales in Point Lookout, and found that 12 Galeen Street was one of seven sales that was seen to occur as a low sale in that market. He advises that the presence of low sales is fairly common in a rapidly rising market situation. [63] In drawing a similar conclusion for Mr Beck’s sale at 19 Galeen Street (para [[49]), Mr Dudek also notes that the unimproved value of that parcel at 1 October 2001 was $240,000, reflecting an added value of improvements of the old island timber and fibro dwelling at $105,000, which he argues also appears reasonable. He argues a similar analysis of the 16 Galeen Street sale reveals an unimproved value of $300,000 at 1 October 2001, and an added value of the two storey brick dwelling at $136,000, which is comparable to other older brick dwellings in the area. Mr Dudek argues those sales also support the current valuations. [64] Mr Balczun also notes that an improved property sold nearby to his land at Lot 31 Waller Court, which was contracted for sale for $358,000 in 2002. He concedes that was a later sale after 1 October 2001, but argues that level of value in Waller Court demonstrates that -- 19 of 38 -- 20 land values in Waller Court would have been less than that figure in 2001. He notes that using his estimate of about $150,000 for the existing dwelling, then the land value of Lot 31 Waller Court would have been about $200,000 in 2001. Relativity – [65] While relativity was not an issue on all of the subject matters, it was raised in the matters of O’Connor and Elliot. Mr Dudek confirms that previous relativities have been maintained under the mass appraisal process, unless there was sales evidence to justify changes in the relativity. [66] In respect of the O’Connor property at 4 Billa Street, Mr O’Connor argues that the adjoining parcel to its south-east (Lot 32 Zuttions) has been developed as a Bed and Breakfast commercial operation. Because of that more intense land use he advises that the other neighbour to the east of the Zuttion property at Lot 33, (Rago) has had its unimproved value reduced. Mr O’Connor also notes that Lot 33 is also at a lower unimproved value than 4 Billa Street. [67] Mr O’Connor argues that the Zuttion property is higher in elevation, and overlooks 4 Billa Street, and both the Zuttion and Rago properties are further removed from the traffic noise on East Coast Road, and the hotel site. Mr O’Connor also argues that both the Zuttion and Rago lands have more expansive ocean views than 4 Billa Street. Mr O’Connor also notes that he was advised that an existing two storey dwelling with ocean views at 24 Billa Street, about 100 metres to the south-east, was sold in August 2001 for $350,000. He questions how such an existing dwelling could sell for less than the unimproved value of $420,000 applied to 4 Billa Street. However he has no specific details of that sale. [68] Mr Dudek agrees that the adjoining parcels to 4 Billa Street have lower unimproved values, but argues that the ocean views from 4 Billa Street, which is at the end of the ridge, are less likely to be obstructed by new buildings to the west, than would be the case with Lot 33. Mr Dudek offers the opinion that there was a slight chance that the views from the Zuttion and Rago lands may be obstructed. However he agrees that the ocean views are currently approximately similar to those from 4 Billa Street. [69] Mr O’Connor challenges that opinion, arguing that ocean views from the Rago land (Lot 33), are less likely to be obstructed than from the subject land. Mr Dudek confirms that the Rago land (Lot 33) was valued at $365,000, while 4 Billa Street is valued at $420,000, reflecting a reduction of about 13% for the potential loss of ocean views at the Rago land. Mr Dudek agrees that the current valuations were the result of the mass appraisal -- 20 of 38 -- 21 approach, and he offers an opinion that if valued on an individual basis, the 4 Billa Street land might be reduced by about 5% to say $400,000. However he argues that 4 Billa Street is superior to the Rago property (Lot 33) which he speculates may be comparatively undervalued. However Mr Dudek agrees that s.33 directs that unimproved values are to be accepted as correct unless proved to the contrary. [70] In respect of the Elliot property at 140 Tramican Road, Mrs Elliot notes that the disabilities of that parcel had previously been accepted by the Chief Executive in 1992, when the unimproved value had been reduced from $90,000 to $80,000 (89%). Mr Dudek confirms that adjustment had been retained in the relativities in the current valuation. To support that Mr Dudek supplies unimproved values of the adjoining parcels in Tramican Street as follows: Parcel Area Unimproved Value Relativity Lot 14 801 m² $190,000 92% Lot 13 791 m² $207,500 100% Lot 31 710 m² $190,000 92% Lot 32 701 m² $190,000 92% Lot 50 (Elliot) 855 m² $180,000 87% On that basis the disabilities of the subject land would appear to have continued to be allowed for on a relativity basis. [71] In summarising his comments about local relativities at Point Lookout, Mr Dudek agrees that more recent trends are tending to indicate that lands without ocean views are now rising relatively faster than lands with ocean views. However he advises that is really a matter for later valuations, and was not apparent from sales evidence at 1 October 2001. He argues that reflects the current restricted market at Point Lookout, and the market’s desire to locate there even without ocean views. Decision The Impact of Rating Arrangements – [72] Before considering the evidence itself, I turn to Mr Balczun’s concern that his current level of rating indebtedness to the Redland Shire Council is reaching levels very difficult for him to maintain. That situation is not uncommon in many areas of South-East Queensland, where rapid increases in property values has not been ameliorated by councils through reduced rating policies. However while such scenarios assist the Court in understanding the concerns of appellants in such matters, they are not a matter for consideration by this Court. -- 21 of 38 -- 22 [73] A similar concern was raised by the appellant in the matter of Poole Island Holdings Pty Ltd v Chief Executive, Department of Natural Resources (RV98-913), 25 June 2001, unreported. In that matter Dr Rosanove sought to challenge the method of valuation outlined in the Valuation of Land Act 1944, suggesting that the Act was outdated and should be amended. In rejecting such a proposal the Land Appeal Court noted at para (3): “The jurisdiction of this Court on appeal and the Land Court at first instance does not extend to a consideration of such matters as rates or rent, but is confined to valuations made under the Valuation of Land Act 1944. That was made clear by the Land Appeal Court in NR and PG Tow v Valuer-General (1978) 5 QLCR 378, where the Land Appeal Court said at 381: “The Valuer General and the Court are concerned with finding unimproved value and not with the amount of rates that may be levied as a result. Rates are fixed by local authorities and may be varied annually according to the fiscal requirements of the Local Authority concerned. Any such variation may be made at any time during a valuation period and may be entirely independent of a new and increased valuation.’” [74] In the current matter Mr Balczun’s appeal must be considered in light of the legislation which is the direction of the Parliament. It is within that context that all parties must seek to determine the unimproved value of the land. It is this Court’s responsibility to ensure that the Chief Executive follows that direction. Any amelioration of rate indebtedness to the Council lies within the power of the Council itself to provide a remedy. Changes in the Values - [75] The major concern of the appellants is the rapid increase in property values at Point Lookout, which, in their opinion, would appear to be correlated with inconsistencies in the planning policies of the Redland Shire Council. However while major changes in unimproved values are often of concern to appellants in seeking to have confidence that their personal property has been fairly treated in any valuation, they in fact do not prove conclusively that any error has been made in the valuation process. Such rises may, at best, be an indicator to owners that they should further investigate the valuation, but there may be many reasons why a valuation has changed in what would appear to be a rate out of line with some overall statistical percentage. [76] This matter has been considered many times by the courts, and I note from precedent that a large increase in itself is not evidence of some error in the valuation. I note, for example, in the decision of NR and PG Tow v Valuer-General (1978) 5 QLCR 378, where the Land Appeal Court said at 381: -- 22 of 38 -- 23 “It follows that a large increase over and above the previous valuation is in itself not a relevant issue provided bona fide sales of comparable parcels support the new valuation.” Impact of Planning Controls – [77] Before considering whether the current DCP3 planning controls are being exercised appropriately in respect of proposed new dwellings at Point Lookout, I turn to the Development Control Plan itself. I note that the relevant controls in respect of site usage are contained in s.3 (Development Management). The Development Strategy notes the minimum constraints to residential developments, and an overall maximum building height of 8.5 metres). Section 4 specifies the particular criteria to be adopted in the Island Residential Precinct. [78] I note further that a single dwelling house is a “permitted” development, and multiple dwellings are “permissible” developments under s.4.2 of that plan, and also that multiple dwellings are catered for in a detached form under s.4.1. Section 4.4.5 establishes the following boundary clearances to the front alignment (6 metres), side boundaries (1.5 metres) and rear boundaries depending upon the height of the structure (2 metres to 3.5 metres). Any detached buildings on one site are to be a minimum of 6 metres apart. There is also an overall maximum site coverage of 30%, with a maximum site area of a single detached building of between 140 m² (above 4.5 metres high) and 150 m² (less than 4.5 metres high). Similar site coverage (140 m² to 150 m²) also relates to each separate detached multiple dwelling. (Diagram 4.1g). There is also an Indigenous Vegetation Retention Area of 30% of the site, part of which may be included in the site setback of 6 metres. [79] While the DCP3 does not define any minimum area for use for multiple dwelling development purposes, s.1.5 directs: “In the event of an ambiguity, or where it is not clear if the control in the abovementioned documents apply to developments in the DCP area, Council shall use its discretion to determine the matter.” Clearly any “permissible” use for multiple dwellings is a “consent” approval by the Council. How that consent approval is provided, is at the discretion of the elected Council. [80] Where new subdivision is proposed under the DCP3 in all of the eight precincts, those requirements are included in s.13 of the DCP3. In the Island Residential Precinct the relevant minimum criteria include a minimum lot area (600 m² on areas of average slope to 1.6, and 700 m² on steeper slopes), minimum frontage (20 metres), maximum depth to -- 23 of 38 -- 24 frontage ratio of 2.5 to 1 and minimum width access to rear lots (4.5 metres). The minimum area of rear lots is not to include any access way or easement in the Tourist Accommodation and Facilities Precinct, where the minimum lot area is 1,200 m². [81] There is also provision for discretionary designs under s.14 of the DCP3, for specific sites which comply with the objectives of the DCP3, but fail the minimal standards established in the DCP3. A key part of that discretionary provision relates to how the non- conforming development proposal “achieves a more sensitive and desirable design solution than if it were to comply” to the minimum standards. [82] However as noted by Robin J in Jackson & Ors v Redland Shire Council & Anor [2003] QPEC 062, 14 November 2003, at para [11], the DCP3 does not stand alone, and must be considered in the context of the Shire Strategic Plan and the town planning provisions. It is also noted that any consent decisions by the Council under the then current Local Government (Planning and Environment) Act 1990, as it then was, were to be considered under s.4.4(5A) which directs that: “The Local Government must refuse to approve the application if – (a) The application conflicts with any relevant Strategic Plan or Development Control Plan; and (b) There are not sufficient planning grounds to justify approving the application despite the conflict.” As Robin J observed the town planning provisions were not specifically referred to in s.4.4(5A)(a); but the Court of Appeal directed in Weightman v Gold Coast City Council [2003] 2 QdR 441, that s.4.4(5A) was to be taken as mandatory, rather than directory for the Council. [83] In respect then of whether the minimum lot size of 800 m² should apply also for developments within the DCP3 area, Robin J noted in Jackson that the Town Planning Scheme under Performance Standards for Multiple Dwellings in s.8(c) provides an exemption from that minimum size, if “permitted by a Development Control Plan or the provision of a Local Planning Policy prepared for that purpose”. But the DCP3 as noted is silent on that issue. In Jackson that matter was explored in some detail, together with flexibility afforded to the Council under s.6.1.2(3) of the Integrated Planning Act 1997 (IPA). In the context of the particular circumstances of that development application, Robin J found that there was no planning grounds to justify the lack of compliance with the minimum lot size standard of 800 m². [84] If I look then to the overall Town Planning Scheme for the Redland Shire (Exhibit 10), I find that the intent of the Zoning (division 2) for Residential A land does allow for -- 24 of 38 -- 25 multiple dwellings on site of at least 800 m²; but that development must be compatible with existing and future developments. Dwelling houses are also permitted on single lots of minimum area of 450 m²; and multiple dwellings with a density not exceeding 25 dwellings per hectare on sites of 1,200 m² or more. Other restrictions on development include in Residential B zones for multiple dwellings to have a maximum population density of 60 persons per hectare; and development may not be permitted for multiple dwellings where the population density exceeds 100 persons per hectare, unless otherwise specified in the Strategic Plan or Development Control Plan. [85] Under chapter 25 of the Town Plan, the minimum area of a lot in a Residential B zone shall be 1,200 m², except for a real lot where the minimum area shall be 1,200 m² clear of any access strip or easement. The minimum lot area in Residential A zone shall be 600 m², except where 450 m² to 500 m² are approved in special circumstances. (Section 12). Generally the minimum frontage of lots is to be 20 metres (Residential A), and 30 metres (Residential B), and generally real lots are to have a slightly wider width to allow for the access strip. [86] The purpose of clarifying those minimum standards is to identify the general criteria available to the Redland Shire Council in exercising its discretion under the DCP3. When an application is finally submitted to the Council for approval, it is important that any applicant should be able to rely upon the Council to exercise its statutory powers correctly under its own planning legislation, which has the force of law as an executable document approved by the Governor in Council. The Redland Shire Council is therefore also bound by its own planning controls. That raises the matter of “general reliance” upon statutory bodies, and the duty of care bestowed upon the Redland Shire Council in those matters. [87] Before considering the subject of “general reliance”, I turn to the principle in law that a local authority is also bound by its own approved Town Planning scheme. I note that matter was addressed by A Fogg in his text Land Development Law in Queensland (1987), where he noted that Queensland planning schemes have always been binding in law, and on the local government as well as citizens. Fogg went on to say at 45: “The local planning authority is fixed with statutory responsibility for administration, implementation and enforcement, but is not by that duty absolved from obedience to the scheme or plan. Despite old fashion wording, both section 33 of the Local Government Act and the City of Brisbane Town Planning Act make it clear that the end product of the statutory process is intended to have the force of law and be binding upon and obeyed by the local planning authority and by ‘all persons whomsoever accordingly’ (Local Government Act, section 33(3))”. -- 25 of 38 -- 26 [88] That was also confirmed in respect of the power of a local authority to develop upon land which the authority itself owned, but which is in conflict with the intentions of the Town Plan. That was clarified by the decision of the Full Court of Appeal in Attorney-General for the State of Queensland; ex Relatione Pie v Brisbane City Council (1972-75) 31 LGRA 403, where Hangar CJ said at 405: “Since s.4 of the Act provides that the town plan shall have the force of law and be binding upon and be obeyed by Brisbane City Council and all persons whomsoever accordingly, par.4 has the force of law and binds the Council. When therefore that paragraph says that the purposes for which certain land may be used without the consent of the council are those set out in col. III; that the purposes for which land may be used only with the consent of the Council are those set out in col. IV; and that the purposes for which land may not be used are those set out in col. V, these provisions have the force of law and bind the Council and everyone else.” [89] The roles of a strategic plan and a development control plan were also explored by Fogg in Land Development Law in Queensland at 14-20. In respect of a strategic plan it is noted that Curtis v Beaudesert Shire Council (1982) 48 LGRA 8 per Kneipp J said at 19: “In the result, I hold that the provisions of a strategic plan which has become part of a town planning scheme have effect as policies only, and are to be applied accordingly. That was the view adopted by His Honour Judge Roe, following the view taken by His Honour Judge Bythe in New York Enterprises Pty Ltd v Beaudesert Shire Council (1981) 42 LGRA 15. I think that they were right.” [90] In respect of development control plans, Fogg notes that they are “essentially directed to filling a conceptual and practical gap between the generalities of a strategic plan and the detailed zoning requirements found in the balance of a town planning scheme” (page 20). Clearly the development control plan is meant to clarify the intentions of the zoning, and not to circumvent them. [91] The concept of “general reliance” was raised as a matter of duty of care owed by a public authority in Sutherland Shire Council v Heyman (1985) 157 CLR 424, by Mason J, which was questioned by the High Court in Pyrenees Shire Council v Day [1997-98] 192 CLR 330. In the latter matter the High Court as a majority decision rejected “general reliance” as a basis of liability, and Brendan CJ noted at344: “If the ‘general expectations of the community’ were to be the touchstone of liability, the proof of that fact would present considerable difficulty. The test seems to invite consideration of a general expectation of the exercise of a statutory power rather than an expectation referable to particular circumstances which might invite consideration of an exercise of the power. If community expectation that a statutory power will be exercised were to be adopted as a criterion of a duty to exercise the power, it would displace the criterion of legislative intention. In my respectful opinion, if the public law duty of a public authority to exercise a power is -- 26 of 38 -- 27 relevant to its liability in damages for a failure to exercise that power, the appropriate criterion is legislative intention. I am respectfully unable to accept ‘general reliance’ as the basis of such a liability.” [92] However in that matter the High Court, by majority decision, found that the Council owed a duty of care to exercise its powers to compel the repairs of a faulty fireplace. Failure to exercise that power in the circumstances meant that it was liable for damages. The issue of vulnerability was also considered and, where a party had no direct opportunity to affect an outcome, he was seen to have a right to rely upon the Council to act property in their interest. Where a party which has opportunity to influence the matter was involved, then responsibility lies with them for their actions. That matter was also discussed by the High Court in Graham Barclay Oysters v Ryan (2002) 125 LGERA 1, per McHugh at 26. [93] In the current matter the important direction of Brennan CJ is that it is the “legislative intention” which must direct the Redland Shire Council in exercising its discretion on any application for the development of multiple dwellings on residential lands at Point Lookout. On that basis it is the wording of the existing planning controls that is important. It is also accepted that the Redland Shire Council has the public responsibility, and the power, to vary its policies from time to time as community needs are seen to vary. That was accepted by the Queensland Court of Appeal in Wort v Whitsunday Shire Council [2001] 116 LGERA 179. [94] In that matter an appellant (Wort) had development approval in 1988, which outlined certain conditions in respect of headwork charges. When the appellant sought to implement that development in 1997, the local government imposed different conditions to the actual proposal. Williams JA noted in 183: “There can, to my mind, be no doubting the proposition that it is in the public interest that a local authority vary its planning policy from time to time (as the duly elected authority having legislative power in that regard) to ensure that planning requirements of the locality meet changing circumstances as time goes by.” However in respect of Point Lookout the Redland Shire Council has made no alteration to the minimum site development standards enshrined in both the Town Plan and the DCP3. The relevant legislation directions therefore remained as gazetted in 1996. [95] Now the circumstances of whether a local government, through its discretionary powers, should seek to depart from the planning intent of its policies, is a matter that has been addressed by the courts. Indeed in the matter of Grosser v Council of Gold Coast (2001) 117 LGERA 153, the Queensland Court of Appeal considered the circumstances where the Court below approved a material change of use by the appellants (Grosser), noting that it was not in line with the Strategic Plan, which the Court suggested “had simply been -- 27 of 38 -- 28 overtaken by events”. The 1994 Planning Scheme in that matter had been made under the former Local Government (Planning and Environment) Act 1990, which then became a former planning scheme under s.6.1.1 of IPA, which became effective on 30 March 1998. Similar circumstances appear to be relevant in respect of the DCP3 of 1996 for Point Lookout in the subject matter. Under those provisions the “former planning scheme” continues to prevail [96] Now as noted in Grosser, a development application is required under s.6.1.30(3)(a) of IPA to observe the provisions of the former Local Government (Planning and Environment) Act, where s.4.5(5A) directs that an application shall “be refused where it conflicts with a relevant strategic plan, or where there are not sufficient planning grounds to justify approving the application in spite of any conflict. In the lower court in Grosser the decision to approve the development application, in spite of its conflict with the strategic plan, was seen to be supported by the existence of an adjoining non-conforming uses for medical centre purposes. However those medical centres were in reality pre- existing uses prior to the 1994 scheme, and in effect constituted “prohibited development uses” under the 1994, without any rights of continuation should the existing use as medical centres cease to operate. [97] The lower court was found to have exceeded its jurisdiction in approving the development application, as it had “cut across” the planning strategy of the Council. That was found by White J at 165: “It is well recognised that a town planning appeal court may depart from the planning intent of the local government if the local government has itself departed from that intent or the subject land has been given a designation that was and remained invalid, Beck v Atherton Shire Council [1991] QPLR 56 at 59, quoted with approval by Newton DCJ in Pacific Exchange Corporation Pty Ltd v Gold Coast City Council [1998] QPELR 335 at 339 and following.” [98] In the current matter the evidence would suggest that the existing approved Council planning policy in respect of multiple dwellings continues to be constrained by the provisions of the Town Plan. Those provisions direct a minimum sized parcel as outlined in para [82] onwards. If the Redland Shire Council is to deviate from those standards, it needs to have “sufficient” planning grounds to support such a conflict. As noted by the Court of Appeal in Grosser at 166: “This might suggest that something more is required than negative impact on the surrounding amenity and want of relevant objection.” [99] The matter of compliance with development standards in respect of the DCP3 itself was the subject of an appeal to the Court of Appeal in Stradbroke Island Management -- 28 of 38 -- 29 Corporation Inc and Ors v Redland Shire Council [2002] 121 LGERA 390. In that matter the lower Court had exercised judicial discretion under s.4.13(5A) of the Local Government Act, and was found to have misconstrued the intentions of the minimum standards enshrined in the DCP3. The Court of Appeal found that the minimum standards of the DCP3 must be complied with, unless it could demonstrated that, “the proposed development achieved a more sensitive and desirable solution than if it were to comply with each of the development standards” (p.396). In that matter the proposed development did not satisfy that criteria. [100] Now in exercising its discretion in approving multiple dwellings upon residential parcels at Point Lookout, which do not meet the minimum area standards of the Town Plan, the Council must ensure that it satisfies its public liability responsibilities in such matters. The matter of common law duty of care was widely considered by the High Court in Graham Barclay Oysters and Ors v Ryan (supra). The importance of the “controls” exercised by a local authority under its statutory powers, and the limits of those responsibilities, was discussed by McHugh J at 31 onwards. The need for a direct relationship between the Council and the final person affected by its discretionary decision must be established. [101] In exercising any discretion involving conflict with the planning policy, the Council must also weigh the balance between the public and private interests involved in the outcome. That is a role similar to that identified in the court’s function in deciding whether the application of statutory powers of a public authority have been undertaken correctly. That was noted by the Court of Appeal in Queensland in Mudie v Gainriver Pty Ltd (2001) 116 LGERA 106, where the Full Court said in respect of the powers to make an order at 111: “The application of similar statutory powers in New South Wales when work has been performed without necessary planning approval has been considered in Tynan v Meharg (1998) 101 LGERA 255 and in Warringah Shire Council v Sedevic (1987) 63 LGRA 361. The Court’s function in determining what is to be done in such cases is to perform a balancing exercise with a view to matters of both private and public interest. It is a discretionary power.” [102] A public authority, by virtue of its overriding public accountability, would also, in my opinion, need to balance both the public and private interests in exercising discretion where conflict with approved planning policies is contemplated. Any possible breach of duty by a local authority is a question of fact. (City of Ballarat v Perovic (2001-2) 119 LGERA 1 per Callaway JA at 11). In the current matter both Mr Beck and Mr Dudek confirm that planning advice from Council offices to potential applicants is always -- 29 of 38 -- 30 circumspect, declining opinions unless a complete development application is formally made to the Council. While Mr Beck may speculate that the planning officers would appear to have a less than thorough understanding of the Strategic Plan, any “risks” involved by applicants in speculating in multiple dwelling approvals always rest with the applicant. (Para 33). [103] The question then to be asked is how are multiple dwellings approved on smaller parcels which appear to be in conflict with the Town Plan? Now s.1.5 of the DCP3 directs that the DCP3 is to prevail where there is a conflict with other policies. The wording of s.1.5 directs specifically: “1.5 Relationship to the town planning scheme The Point Lookout Development Control Plan applies to all forms of development requiring town planning approval in the Development Control Plan area. It is also a requirement that the planning and design principles detailed within the Development Control Plan will apply to the erection of buildings and structures. The provisions contained in this Development Control Plan are applicable in addition to the provisions of the Strategic Plan, Town Planning Schedule and Bylaws and Subdivision of Land Bylaws which should be read in conjunction with this Development Control Plan. Where there is an inconsistency or conflict between the Town Planning Scheme and the Point Lookout DCP, the provisions of the Point Lookout DCP shall prevail to the extent of the inconsistency. The Development Control Plan expresses Council’s land use intentions in detail for the DCP area, and hence provides an amplification of the general land use intent expressed in the Shire Strategic Plan. In the event of an ambiguity, or where it is not clear if the controls in the abovementioned documents apply to development in the DCP Area, Council shall use its discretion to determine the matter.” [104] It is accepted that the DCP3 is silent in respect of the minimum area for residential parcels upon which multiple dwellings are to be constructed. However the Town Plan directs that the minimum area for such purposes is to be 800m². Where the DCP3 makes no specific direction as to minimum size of a parcel for that purpose, then it cannot be in conflict, or inconsistent, with the Town Plan, for the DCP3 provides no policy direction. The only situation where the Council could use its discretion on such matters is where it is not clear if the Town Planning controls also applied to development in the DCP area. Section 21 of Part II (zoning) of the Town Plan states specifically in respect of the Special Development Zone, which includes Point Lookout: “(21) Special Development Zone – this zone is intended to enable particular areas of the Shire which are considered by Council to have a -- 30 of 38 -- 31 special character and environmental features to be developed in an appropriate and sensitive manner. Development Control Plans will be prepared specifically to serve this purpose providing detailed guidelines for development of areas within this zone.” [105] The guidance for the Council in such areas is that, because of the “special character and environmental features” of Point Lookout, the DCP3 is to control developments in an “appropriate and sensitive” manner. The proliferation of multiple dwellings upon relatively smaller parcels, less than the minimum area otherwise applicable elsewhere in the Redland Shire, might be construed as a reasonable response to the restricted number of existing residential parcels at Point Lookout. However, in my opinion, it represents something less than a sensitive response to the environmental objectives at Point Lookout. But that is not a matter for my determination, and could be considered in another place. The matter before this Court is to determine the marketplace’s appreciation of the current usage of residential parcels at Point Lookout, and how that is reflected in the unimproved values of the land. The Use of the Lands – [106] Before considering the actual use of lands in the Island Residential Precinct, I turn to the legislation directing the unimproved values of the subject lands. The Valuation of Land Act 1944 (the Act) directs in s.3(1): “3.(1) For the purposes of this Act – ‘unimproved value’ of land means – (b) in relation to improved land – the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require, assuming that, at the time as at which the value is required to be ascertained for the purposes of this Act, the improvements did not exist.” [107] The Act further directs in respect of the value of land used exclusively for single dwelling house in s.17 as follows:’ “17.(1) In making a valuation of the unimproved value of land exclusively used for purposes of a single dwelling house or for purposes of farming, any enhancement in that value for that the land has been subdivided by survey or has a potential use for industrial, subdivisional or any other purposes shall be disregarded irrespective of whether or not, in case of potential use as aforesaid, that potential use is lawful when the valuation is made. (2) In subsection (1) – ‘single dwelling house’ means - -- 31 of 38 -- 32 (a) a dwelling used solely for habitation by a single household; or (b) a dwelling used solely for habitation by a single household - (i) part of which is used for use as a furnished room or furnished rooms; or (ii) with a self-contained flat; or (c) a building consisting of two flats used solely for habitation; or (d) a building consisting of two self-contained units, known as a ‘duplex’ and used solely for habitation.” [108] Now while the Act does not specially define the meaning of “duplex”, its intended purpose in s.17(2)(d) is to be restricted to two units within “a building”. It is noted that Mr Dudek advises that s.17 is applied to a single parcel, even when there are two separate dwellings upon the site. Now while that may be the current decision of the Chief Executive not to exercise his discretion under s.34(2) of the Act, that is seen to be a conservative approach in view of the wording of s.17(2)(d) which refers specifically to “a building consisting of two self-contained units”. In respect of the nature of any buildings, that would appear to indicate a singular approach to the exercising of s.34(2) in that regard. But that is a matter for the discretion of the Chief Executive. [109] I note also from the evidence that the Chief Executive has not sought to value each parcel where multiple separate detached dwellings have been built, as other than “a single dwelling” site under s.17 of the Act. That is the claim of the appellant, that by so exercising his discretion not to provide separate valuation where separate dwellings have been subsequently erected upon a single parcel, the Chief Executive has incorrectly used such sales of multiple dwelling sites where “subdivision” has to be ignored under s.17. On that basis I could accept the appellant’s claim that sales should be excluded, where such sales are subsequently developed for multiple use purposes, and where the subject land itself is used for a single residence only. That is at the heart of the truly comparable sales evidence as espoused in Maurici v Chief Commissioner of State Revenue and Anor [2003] 195 ALR 236. However I am also reminded that under s.3(1)(b) the subject land itself must be seen as an unimproved parcel. [110] Those matters, together with the considerations of the meaning of “subdivide” within s.17 were explored in the matter of Monaghan v Chief Executive, Department of Natural Resources and Mines (AV2002-0254) 30 October 2003, unreported, and I will not repeat those findings. However the thrust of those findings is that there is no evidence of “scarcity” of sales of vacant lands at Point Lookout which might direct application of Maurici in this matter. However the best “like with like” comparisons with the subject -- 32 of 38 -- 33 lands should be made with lands purchased for single dwelling purposes. Any additional sales evidence subsequently developed for multiple dwelling purposes are only to establish the relative market’s appreciation of lands used either for single or for multiple dwelling purposes. The Method of Valuation – [111] In seeking guidance in respect of the appropriate approach to valuing single residence parcels, I note that the Land Appeal Court addressed that issue in the matter of Hans and Else Grahn v Valuer-General (1992-93) 14 QLCR 327, where it said at 330. “The appellants fail on this point because the appropriate basis for the valuation of a residential lot is not the application of a rate per square metre but an assessment of the unimproved value of each lot as land used for single unit residential purposes. As the Land Appeal Court said in its decision on the appellants’ previous appeal (H and E Grahn v. The Valuer-General, AV89-246 and 247, 13 December 1990): ‘for the purpose of valuing residential sites, the preferable method of comparison is on a site to site basis and not on the basis of a unit area valued comparison. Site for site comparison should take into comparison such matters as the size of the lots, the situation of and access to the lots, the shape and topography of the lots etc. and comparisons on a unit area basis do not necessarily reflect valuation considerations for the above features.’” [112] Now while a rate per square metre basis may appear to provide some logic to the appellants, the apparent discrepancies existing in the limited survey undertaken, are likely to occur from variations in the methods of analyses themselves. For example the value of improvements on the subject lands which were analysed, tended to reflect more a depreciated cost approach, rather than a sales analysis of the added value that those improvements bring to the land. [113] The problem with such an approach is the variations which can occur in the level of depreciation to be applied. The method of added value of improvements has been a matter long considered by the courts, and was addressed in the decision of the High Court in Morrison & Ors v Federal Commissioner of Land Tax (1914) 17 CLR 498, where Griffith CJ said at 503: “… the term ‘value of improvements’ is defined to mean ‘the added value which the improvements give to the land at the date of valuation irrespective of the cost of the improvements.’ … Any operation of man on land which has the effect of enhancing its value comes with the definition of ‘improvement’.” -- 33 of 38 -- 34 [114] Griffith CJ went on to note that the improvements must enhance the land, and that the cost of improving the land is not the cost of doing it, and its added value is complex to define. While Mr Beck may reasonably be credited with a level of skills in defining the costs of new comparable dwellings, he lacks some expertise in an appropriate appreciation of the marketplace’s opinion of appropriate depreciation rates for valuation purposes. [115] In respect of Mr Beck’s use of a developer’s profit margin in his analysis, I am referred to the decision in State Government Insurance Office v Valuer-General (1980-81) 7 QLCR 171. In that matter concerning a valuation of the Caneland Shopping Centre at Mackay, the President said at 185: “I can see no justification for the site developer’s profit and risk allowance because we are endeavouring to ascertain the cost of the improved site to the purchaser and not engaging an exercise of a hypothetical subdivisional nature. The exercise is to ascertain the value of the land in its improved state based on its purchase price plus necessary on site improvements to permit the commencement of building. No entrepreneur’s profit or risk is involved. I do propose, however, to allow interest –“. [116] Courts at all levels have preferred the use of sales of vacant lands as a method of determining the unimproved value of land. That was noted by the Land Appeal Court in NR and PG Tow v Valuer-General (1978) 5 QLCR 378, where it at 381: “Courts of the highest authority have laid down that the best test of value is to be found in the sales of comparable properties, preferably unimproved, on the open market round about the relevant date of valuation and between prudent and willing, but not overanxious parties.” That was also followed in PH Clough v Valuer-General (1981-82) 8 QLCR 70 at 76; WM and TJ Fischer v Valuer-General (1983) 9 QLCR 44; and also in R and MM Barnwell v Valuer-General (1990-91) 13 QLCR 13, at 17. Comparison of Sales – [117] If I turn then to the sales evidence, I note that Mr Beck’s sales at 12 Galeen Street, 16 Galeen Street and 19 Galeen Street were separately analysed by Mr Dudek, and found to generally support the unimproved values applied to the subject land. While each of those three sales reflected an improved property, when analysed at the relevant date of 1 October 2001, the added values of improvements appeared to reasonably reflect the condition of the existing dwellings. (Para [63]). [118] Mr Balczun’s comparison with a later sale in Waller Court in 2002, might appear to him to support a lower value of 3 Waller Court in 2001, however Mr Balczun’s estimate of the $150,000 for the existing dwelling was not supported by a detailed analysis of that -- 34 of 38 -- 35 property. I note also comparisons between the added values of dwellings concluded by Mr Dudek in para [62] and [63]:  12 Galeen Street (two storey fibro - $67,000)  19 Galeen Street (Island timber and fibro - $105,000)  16 Galeen Street )two storey brick – $136,000)  7 Cumming Parade (small cottage - $10,000) Those added values tend to question the added value of $150,000 to the existing single level brick dwelling on 3 Waller Court. Without detailed examinations, the photographic evidence of 3 Waller Court (Exhibit 9) and 12, 16 and 19 Galeen Street (Exhibit 6) support that conclusion. [119] If I then consider Mr Dudek’s comparisons with each of his Sales 2, 3 and 4, where single dwellings were the objective of those sales, I find that Sale 2 (7 Cumming Parade), which was applied at $540,000 is either vastly superior or superior to all seven subject lands. (Para [60]). I note also that Sale 4 (8 Moongalba Street) at $385,000 is superior to all subject lands except 4 Billa Street and 117 Tramican Street. I note further that Sale 3 (106 Mooloomba Road) at $237,500 is seen as inferior to all subject lands except 19 Waller Court and 140 Tramican Street. On those comparisons the unimproved values could be as follows:  19 Waller Court – about $237,500  36 Baroon Street - $385,000 to $237,500  4 Billa Court - $540,000 to $385,000  140 Tramican Street – less than $237,500  12 Bambara Street - $385,000 to $237,500  117 Tramican Street - $540,000 to $385,000 [120] If I accept Mr Dudek’s advice that there are similar market levels for vacant lands, whether they are to be developed for single dwelling use or for multiple dwellings, I can then seek to moderate the subject lands’ values by comparisons with Sale 1. On that basis 4 Billa Street could have an unimproved value of about $400,000, while 117 Tramican Street could be between $400,000 and $540,000. On those comparisons there is nothing to demonstrate that Mr Dudek has made an error in his determinations. [121] Now in respect of Mr Beck’s concern that Sale 4 (8 Moongalba Road) actually has a Tourist Precinct zoning, I note that the zoning of the land is a matter to be considered in the valuation. I note for example in the matter of Royal Sydney Golf Club v Federal Commissioner of Taxation [1954-55] 91 CLR 610, the High Court directed at 625: -- 35 of 38 -- 36 “The first question in the case stated should therefore be answered that in arriving at the unimproved value under the Land Tax Assessment Act of the land the subject of the appeal the land should not be valued without regard to the provisions and effect of the County of Cumberland Planning Scheme.” [122] However I also note AK and SS Gallagher v Brisbane City Council (1975) 2 QLCR 368, in respect of the determination of highest and best use of the land. In that matter the Land Appeal Court found in determining the compensation for the land resumed, that the existing zoning will always affect the highest and best use, but it does not create it. The Land Appeal Court found that whilst the highest and best use was different from the permitted use under the zoning, the claimant was entitled to receive the present value of the highest and best use. However I believe that matter can be distinguished as it involved a matter of resumption of land, where the owner was entitled to receive the compensation for his loss. The current matter deals with an annual valuation for revenue rating purposes, and the zoning only has the impact of preventing highest and best use at the time of the valuation at 1 October 2001. [123] That then leads to the question of what is the highest and best use of the subject lands at the relevant date? Clearly it would appear to be for development either as a single dwelling site, or for multiple dwellings within the DCP3. If I then compare Sale 1 and Sale 2, I find they are both in Cumming Parade, and about 350 metres apart, and both have ocean views, but the views from Sale 2 are more spectacular. I find also that Sale 1 has an area of 1,250 m², and is hatchet shaped, but it satisfies the Town Planning requirements for multiple dwellings. However the value of Sale 1 ($410,000) is considerably less than the value of Sale 2 ($540,000), which only has an area of 985 m². That would tend to support that purchasers are prepared to pay even more for lands for single dwelling purposes, where the ocean views are significant. I agree with Mr Dudek that the market levels are similar for both intended uses. On the evidence there is nothing to suggest that Mr Dudek has made an error of fact in his determination. I also accept that in considering s.17, there is therefore no concessional value applying to single residence sites at Point Lookout. Relativity – [124] In respect of relativities near 140 Tramican Road (Elliot), I accept that the previous disabilities of that parcel have been appropriately acknowledged in the current valuation. In respect of 4 Billa Street (O’Connor) I agree with Mr O’Connor that his property value should reflect comparable allowances for impacts from the adjoining commercial -- 36 of 38 -- 37 property (Zuttion). While Mr Dudek might speculate that the adjoining parcel at Lot 33 (Rago) should be higher than $365,000, I note that s.33 of the Act directs: “33. Any and every valuation, or alteration of the valuation, of any land made, or purporting to be made, under this Act by the chief executive shall be deemed to be correct until proved otherwise upon objection or appeal or until altered or further altered.” [125] I also agree with the appellant that the closeness to the traffic noise on East Coast Road would have a greater impact upon 4 Billa Street, which is also lower than both the adjoining lands to the south-east. On that basis I accept an unimproved value of $365,000 for 4 Billa Street. Summary: [126] In summarising these matters I am reminded that in respect of a Notice of Appeal the appellants have the onus to prove their cases under s.45(4) of the Act which states: “45.(4) Such notice shall state the grounds of appeal and the appeal shall be limited to the grounds so stated and the burden of proving any and every such ground shall be upon the owner.” In respect of 4 Billa Street (O’Connor) I accept that the appellant has satisfied that there is scope for adjustment in respect of relativity with adjoining parcels. In respect of 12 Bambara Street (Griffin) I accept Mr Dudek’s advice that the unimproved value should be reduced to $325,000, to reflect the more restricted ocean views. The remaining appellants have not demonstrated any errors in their values. Conclusion: [127] Having considered the whole of the evidence the following appeals are dismissed for Beck and Cooper (AV2002/0574); Cunnington (AV2002/0575); Elliot (AV2002/0577); Balczun (AV2002/0576); and McAllister (AV2002/0518). The unimproved values as determined by the Chief Executive are affirmed in the sums of:  AV2002/0574 - $220,000  AV2002/0575 - $295,000  AV2002/0577 - $180,000  AV2002/0576 - $270,000  AV2002/0518 - $485,000 [128] Having considered the whole of the evidence I am persuaded that the following appellants O’Connor (AV2002/0228) and Griffin (AV2002/0680) have proved their cases. The -- 37 of 38 -- 38 determinations of the Chief Executive are set aside, and the unimproved values of Lot 31 on PL 85421 (4 Billa Street); and Lot 6 on PL 85415 (12 Bambara Street) are determined respectively in the sums of Three Hundred and Sixty-Five Thousand Dollars ($365,000) (4 Billa Street) and Three Hundred and Twenty-Five Thousand Dollars ($325,000) (12 Bambara Street). NG DIVETT MEMBER OF THE LAND COURT -- 38 of 38 --