BP Refinery v Department of Natural Resources and Mines [2003] QLC 6

LAND COURT OF QUEENSLAND CITATION: BP Refinery v Department of Natural Resources and Mines [2003] QLC 6 PARTIES: BP Refinery (Bulwer Island) Ltd (applicant) v Chief Executive, Department of Natural Resources and Mines (respondent) FILE NO: AV2001/0306 DIVISION: Land Court of Queensland PROCEEDING: Appeal against annual valuation under the Valuation of Land Act 1944 DELIVERED ON: 6 February 2003 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Dr NG Divett ORDER: The appeal is dismissed, and the unimproved value of Lot 2 on RP 188359 as determined by the Chief Executive in the sum of $400,000 is affirmed. CATCHWORDS: Statutory Valuation – Valuation of Land Act 1944 – presumption of correctness (s.33) – meaning of valuation includes process of valuation - discretion allowed for further evidence. Valuation – particular factors in valuation – zoning and local government factors – highest and best use – service station or residential - existing use as service station accepted under s.3(4). Valuation – valuation of particular properties – specialized premises – service station – assessed on a -- 1 of 24 -- 2 site rather than area basis – difficulties in use of improved sites – vacant service station sites preferred. APPEARANCES: Mr A Crawford for the appellant Mr W Isdale, Crown Law for the respondent Background: [1] This matter relates to land at 115 Stewart Road, Ashgrove, and described as Lot 2 on RP 188359, Parish of Enoggera. The subject land is located about 5 kilometres radially north-west of the Brisbane GPO, and has an area of 1,769 m². The land is situated at the corner of Stewart Road, McLean Parade and Dixon Street, all of which are bitumen sealed with concrete kerbing and channelling. All normal urban utility services are available. Access to Dixon Street is not available as there is an access restriction strip along the frontage. Access is available from two access points on Stewart Road, and one on McLean Parade. [2] The subject land was zoned Particular Development 339 Service Station, Shop and Automatic Car Wash under the Town Plan of the City of Brisbane 1987, effective at the date of valuation of 1 October 2000. Under the Brisbane City Plan 2000 which became effective at 30 October 2000, the subject land is designated Low Density Residential Area LR under the Ashgrove District Local Plan. The land is currently operated as a BP Service Station. The key issues are the basis of the valuation, the highest and best use of the land, the nature of the land, the method of valuation and comparison of sales. [3] On 26 February 2001 the Chief Executive issued a valuation of the subject land at $440,000. Following an objection the Chief Executive amended that figure to $400,000 on 12 June 2001. The appellant has now appealed claiming the unimproved value should be $290,000. At the hearing on 13 September 2002 the appellant led evidence to an unimproved value of $280,000. [4] Allen Crawford appeared and gave evidence for the appellant. Mr W Isdale, Counsel of Crown Law appeared for the respondent, calling evidence from George William Lindberg, the departmental registered valuer responsible for determining the valuation. The Basis of the Valuation – [5] Mr Crawford argues the preliminary point that the basis of the valuation now argued by the respondent has changed from the approach adopted when the valuation was appealed against. It is his argument that the valuation appealed against reflects not only the final unimproved value determined, but also the method by which that unimproved value was -- 2 of 24 -- 3 determined. He draws particular attention to the wording of s.33 of the Act which he argues refers to a “valuation” which is deemed to be correct, not an “unimproved value”. Mr Crawford argues that it is not just the amount of the unimproved value which is appealable, but also the process by which that amount is determined. [6] Mr Crawford further argues that the effect of changing the method of valuing the subject land is to effectively withdraw the valuation previously determined. He argues that the respondent has now changed his understanding of the highest and best use of the subject land, and therefore has changed the total concept of the previous valuation. Mr Crawford advises that it was one of the grounds of appeal of the appellant that the method adopted by the Chief Executive had been wrong in the original valuation. Mr Crawford argues that initially the Chief Executive had valued the subject land as having its highest and best use as for residential subdivision, while Mr Lindberg now argues its use as a service station site. To support that conclusion he provides a document from the Chief Executive’s records, obtained under Freedom of Information legislation (FOI – Exhibit 2, Annexure D). [7] Mr Isdale rejects that assumption, noting that in formulating the grounds of appeal, the appellant had no direct knowledge of how the Chief Executive was approaching the valuation, and his case could thus not be prejudiced in any way by an incorrect understanding of the valuation appealed against. Mr Isdale draws support for his conclusion, noting that Mr Lindberg cannot be constrained only to information obtained under FOI, as found in the recent decision of this Court in Kalinicos and Others v Chief Executive, Department of Natural Resources and Mines (AV2001/0231 and 0233), 22 August 2002, unreported, at paragraph [47]. Mr Isdale also notes that the respondent is not bound in what case he puts before the Court, which may be influenced by the case argued by the appellant in his submission. [8] Mr Isdale argues that it is the actual dollar amount of the unimproved value which is relevant when considering the application of s.33 of the Act. In concluding that opinion, Mr Isdale refers to the decision of the High Court in Brisbane City Council v The Valuer- General (1977-78) 140 CLR 41, per Gibbs J page 56. [9] Mr Crawford further argues that having obtained information under FOI of the method of valuation initially used by the Chief Executive, he had then adopted that approach in preparing his valuation report for exchange with the respondent on 26 August 2002. The original date of exchange under Rule 23 was 23 August 2002, but by mutual agreement that was amended to 26 August 2002. The FOI document (Action Sheet) obtained shows that Mr Lindberg had reconsidered the objection by calculating the unimproved value by -- 3 of 24 -- 4 a different methodology (Category A04), which valued the land without any allowance for contamination in its current use as a service station. That review of the valuation had reduced the unimproved value from $440,000 to $400,000, the figure now appealed against. [10] Because of the change of approach in adopting a different highest and best use of the subject land, Mr Crawford seeks to provide further sales evidence, not included in his valuation report, in order to refute Mr Lindberg’s sales. He argues that because of that changed approach to the respondent’s valuation, Mr Crawford should not be restricted only to the evidence provided in his report. Mr Crawford argues that the need to provide additional sales evidence in respect of a potential highest and best use as a service station, is because Mr Lindberg has not fully analysed all of the relevant sales evidence in the market place. [11] Mr Crawford seeks the indulgence of the Court to provide the additional sales evidence, particularly in as much as he argues that the respondent would have been aware that the FOI document could have lead to the conclusion that the appellant believed that the approach adopted relating to a highest and best use as residential lands. He argues that the purpose of Rule 23 of the Land Court Rules is to remove any potential for ambush at a hearing, so that both parties are fully informed of the evidence to be argued. Mr Crawford therefore seeks for the Court to waiver compliance with Rule 23, in accordance with Rule 6, as he argues that any injustice on the history of the matter could only otherwise occur to the appellant. [12] Mr Isdale resists any relaxation under Rule 6 in this matter, noting that the Court is bound, within limits, to the extent that it can deviate from the requirements of the rules of the Court. He draws support from the decision of the Land Appeal Court in JL and I Qualischefski & Ors v Valuer-General (1979) 6 QLCR 167, where it said at page 172: “Neither this court nor the Land Court in the subject jurisdiction may assume the role of an investigating tribunal requiring the Valuer-General to substantiate his case. This is in contradiction to jurisdiction conferred under the Land Act. In appeals of the nature of the subject, the onus which the appellant must assume is not an easy one to discharge without the assistance of a registered valuer who can lead evidence as to sales analyses and/or comparison with valuations made by the Valuer-General in respect of comparable properties.” [13] In the current matter what Mr Crawford is now seeking to do is to assist the Court with alternative sales evidence of service station sites, which he argues will ensure that the Court is not misinformed of the market place, while I agree with Mr Isdale that the Court -- 4 of 24 -- 5 is not to assume the role of an investigating tribunal, I accept that the appellant would appear to have misunderstood the basis upon which the valuation had been determined. Certainly at the heart of this matter is the correct highest and best use of the land. [14] If Mr Lindberg has reviewed the highest and best use of the land, as Mr Crawford argues, then the resulting unimproved value for the purpose of a service station is now seen to reflect $400,000, rather than the $440,000 by the previous method. That would seem to allow any benefit of doubt to the appellant. Now I agree with Mr Isdale that such conjecture is not a matter for my consideration, other than to consider whether, in the circumstances of this matter, I should allow any benefit of doubt to the appellant, but only in respect of strict compliance with Rule 23. While I note that the rules of the Court generally constrain the parties, and the Court, the discretion to relax Rule 23 is provided for in Rule 6. As long as that discretion is exercised judicially, then the rules cannot restrict the exercising of that discretion. (Maurici v Chief Commissioner of State Revenue and Anor (No. 5) [2000] 119 LGERA 395. On that basis I allow consideration of the further sales evidence by Mr Crawford. [15] In respect of the approach taken by Mr Crawford in valuing the land as for residential subdivision, I note that he was apparently advised by telephone on 15 August 2002, that Mr Lindberg now intended to provide a valuation report on the basis as a service station. While that was seen to be in conflict with Mr Crawford’s earlier understanding of the highest and best use of the land, Mr Crawford, for whatever reason, chose to continue with his valuation as for residential purposes. The telephone advice of 15 August 2002 was some eight days prior to the original date of exchange of reports on 23 August 2002, and eleven days prior to the actual date of exchange. That advice was confirmed by letter from Counsel on 16 August 2002. Mr Crawford responded by letter of 20 August 2002, confirming his lack of clarity of the approach to be taken by the Chief Executive at the hearing. In the end neither party made application for an adjournment to seek to respond to any diverse method of approach to the valuation prepared for the hearing. In the end Mr Crawford neither amended his report, provided a second approach to his valuation, or sought an adjournment of the hearing. On that basis I accept his conclusion that the highest and best use was, in his opinion, for residential purposes. The Nature of the Land – [16] Mr Crawford argues that the relatively small size of the subject land restricts its development as a modern service station and fuel outlet. He notes further that the restricted road frontage, and difficulties with egress and ingress of the site, also mitigate -- 5 of 24 -- 6 against its effective use for that purpose. He concedes that there is only an access restriction along the Dixon Street frontage, and north moving traffic can enter the site via traffic lights at the intersection of Stewart Road and McLean Parade, with access to the site near the north-eastern corner of the subject land. South bound traffic along Stewart Road enters and exits the site via two access points in Stewart Road. The normal exit point is near the traffic lights. There is good visibility of the site, particularly for traffic at the road bridge to the north of Dixon Street. [17] Mr Crawford confirms that traffic flows in Stewart Road are heavy, as the traffic route is classified as a Met Road in the Urban Business Directory (UBD). That classification reflects traffic flows higher than experienced on the Bruce Highway, as Stewart Road was agreed to be part of the main traffic route across the western suburbs of Brisbane, connecting to the Bruce Highway to the north. [18] Mr Crawford confirms that the existing use of part of the site for the purpose of a mechanical car wash, was approved as a development approval by the Council, in connection with its current zoning, at the relevant date, as a Particular Development for a service station site. Mr Crawford also confirms that the two existing 50,000 litre fuel storage tanks on the site, provide bulk storage for something less than a weekly output from the pumps. The service station operates 24 hours per day for 365 days per year, at a weekly output of 110,000 litres. [19] Mr Lindberg does not question that storage capacity, but argues that the frequency of refilling the storage tanks reflects the rate of sales of fuel, and the effectiveness of the service station is not entirely dependent upon the size of the storage tanks. Mr Lindberg agrees that a modern service station of 3,000 m² to 4,000 m² was likely to be a priority for any new site. However he argues that sized area is difficult to acquire in an inner suburban location, and does not mean that the subject land is not a viable service station. He argues that recent redevelopment of the subject land as an upgraded service station supports that conclusion. The Highest and Best Use of the Land – [20] The key issue in this matter is the highest and best use of the land. Mr Crawford argues that it is for residential purposes, while Mr Lindberg argues that it is as a long-standing working service station. Mr Crawford argues that upon an open market a prudent vendor would not accept considerations below the amount that could be realized for a highest and best use as residential land in accordance with the Brisbane City Plan 2000. Mr Crawford argues that the subject land has not varied in value, in the appellant’s records, from the -- 6 of 24 -- 7 $50,000 initially paid for the site about 30 years ago. He argues that, in his opinion, that figure is a reasonable reflection of the value of the land as a service station site at the relevant date. [21] Mr Lindberg rejects that conclusion, noting that in 1999 the appellant company spent a total of $1,270,000 on rebuilding the service station, and it has continued to operate as such until the current time. Mr Crawford concedes that such redevelopment did occur, but argues that does not prove that the current is its highest and best use. He argues that BP Australia was in a special position with that redevelopment, not available to an arm’s length party. He notes that the appellant was able to make use of the retained building structures at a value of $125,000, which together with the book value of $50,000 for the land, allowed the appellant to spend $1,270,000 on the redevelopment. Mr Crawford also notes that, as the added value of the existing structures ($125,000) must be ignored for the purpose of the valuation, and that use would only apply to BP Australia, then its use as a service station would not be seen as its highest and best use to another prudent buyer. [22] Mr Crawford argues further that if a land component of $280,000 (his valuation), was added to the redevelopment costs of $1,270,000, and effective capital cost of $1,675,000 would reflect a reasonable economic return for the service station. He bases that conclusion upon his analysis of current potential profits that can be derived from the site. Mr Crawford is an experienced valuer operating as an adviser in the service station industry. He argues that major factors influencing the value of service station sites relate to their regional location, their locality, preferably in retail and commercial locations, followed by residential, industrial and rural areas, the profit margins on fuel and food, workshops, car washing and pump configurations. [23] Mr Lindberg does not disagree with those influences affecting the value of service station sites. However he argues that the recent decision by BP Australia to redevelop the site in March of 1999, and its continued use as a service station since that time, reflects the value that the appellant saw in the land as a service station. Mr Crawford confirms that current turnover at the service station reflects a return of $20,500 per week ($1,066,000 a year), exclusive of fuel sales. Fuel sales were quantified only to the extent of averaging 110,000 litres per week or 5,720,000 litres per year. [24] It is agreed that service station outlets have undergone significant changes in recent years, and Mr Lindberg argues that the redevelopment of the subject land was to reflect those industry changes, particularly in respect of the addition of a mechanical car wash and an upgraded shop for sales of food and other services. Mr Lindberg argues that had BP seen another higher use as other than a service station, when it virtually cleared the site in -- 7 of 24 -- 8 1999, then it may have sold the site for that purpose. However it decided to redevelop the site as a service station, suggesting that it saw that as its highest and best use to the appellant. [25] Mr Lindberg agrees that, while the site was operating as a service station at 1 October 2000, and had been so doing for 30 years, there is no guarantee that it would continue to do so. He also agrees that modern practice for service stations reflects a location for the retail outlet to be positioned to the rear of the fuel pump outlets, away from the traffic entry point. Mr Lindberg also agrees that the smaller size of the subject land would limit the number of on-site parking spaces near the retail outlet. However he does not agree that the size of the subject land necessarily restricts the pump outlets to four lanes. He argues that was a design decision of BP Australia, and perhaps reflected the appellant’s view of the added value of the previous structural improvements. He also argues that some of those structural improvements could be used for another purchaser. [26] Mr Lindberg concedes that if there was a need to queue at the pumps, that would be more difficult on a smaller site compared to a larger service station site. However he queries whether the cost of the redevelopment ($1,270,000) reflected the added value they brought to the site, as he notes often redevelopment costs can be dearer than a new construction. However he does not challenge that BP Australia spent that money in order to continue and upgrade service station services at that location. He argues that considerable cost of redevelopment reinforces his opinion that the appellant saw the highest and best use of the site as a service station. [27] Mr Crawford agrees that where a service station is seen as under-performing, then the owner company can decide to sell the site; although they tend to seek to ensure that the site does not become a competitor. However Mr Crawford notes that such conditional sales tend to occur where the zoning precludes the service station, and an existing approval can be allowed to lapse over time; a situation not relevant in the current matter, where the existing zoning supports the use as a service station site. He also concedes that the existing Land Planning Policy 7.30 of the Council merely offers an alternative use for ex-service station sites. Mr Crawford concedes that the existing service station has a good range of products for sale, although he argues they are very restricted by the size of the site. [28] Finally in considering the implications of s.3(4) of the Act, in respect of the existing use of the land, Mr Crawford argues that the wording of that section is “discretionary” by nature, and provides no direction that the current use of the land as a service station is to be assumed as its highest and best purpose. He argues that “if the improvements are an -- 8 of 24 -- 9 over-capitalisation of the land, or if you are able to get more under the Town Plan than you would otherwise be able to get” (Transcript 36), that would reflect the intentions of s.3(4). But he argues that is not current in the relevant matter. Comparison of Sales – [29] In providing analysis of the valuation for residential development purposes, Mr Crawford has prepared the following sales of vacant Residential A land:  Sale 1 – (639 Waterworks Road, Ashgrove – area 607 m²). This is a sale in April 2000 at $73,000 of an inferior parcel below road level.  Sale 2 – (11A Waterworks Road, Red Hill – 364 m²). This is a sale at $96,500 in July 2000 for a smaller parcel in a superior location, within a “character” style residential area.  Sale 3 – (4 Eager Street, Ashgrove – 400 m²). This is a sale at $135,000 in March 2000 for a smaller parcel close to Waterworks Road, but removed somewhat from the heavy traffic noise. The sale demonstrates the premium paid for sites removed from a major traffic route.  Sale 4 – (7 Mclean Parade, Ashgrove – 405 m²). This is a sale of $132,000 in October 2000 for a smaller site near the subject land, but improved with a dwelling.  Sale 5 – (88 Stewart Road, Ashgrove – 739 m²). This is a sale of $135,000 in October 2000 of a smaller site on busy Stewart Road, but with substantial improvements. The value demonstrates the differing values between side street locations and on a busy traffic route. He argues his sales evidence supports his conclusion that there is a difference in value between parcels on a major road and those removed from a major road. [30] Mr Crawford also provides the following comparisons, including previous service station sites, now being developed for other purposes:  Sale 6 – (289 Ipswich Road, Annerley). This is a 2,456 m² site zoned Low Medium Residential, with a maximum GFA of 1,474 m², in a high profile location with potential for other than just residential. The sale sold in December 2001 for $470,000, and was analysed at $319 per square metre GFA.  Sale 7 – (354 Hamilton Road, Chermside). This is a 1,553 m² site zoned Residential BR4 at date of sale, and now rezoned to MP2. The sale is almost opposite the Chermside Shopping Centre, and the old service station improvements (172 m²) were retained for use by the purchaser. The sale is seen as far superior to the subject land. The sale sold in May 1999 for $402,000, and was analysed as 3,882 square metres GFA at $103 per square metre as MP2 land; and 932 square metres GFA at $431 per square metre as Res BR4 land.  Sale 8 – (713 Hamilton Road, Chermside West). This is a 2,278 m² site zoned Low Residential, with a maximum GFA of 1,025 m². The sale comprised 1,120 m² of vacant land behind the 1,158 m² of existing service station site, which has -- 9 of 24 -- 10 continued operating under the new owner. The sale is seen as providing an upper limit on the value of the subject land, although the subject land is conceded to be in the better location. The sale sold to an existing operator in October 2001 for $385,000, and after allowing an estimated $100,000 for the value of improvements, was analysed at $375 per square metre GFA as an improved site, and $280 per square metre as vacant land.  Sale 9 – (380 Cavendish Road, Coorparoo). This is a 1,674 m² site zoned Residential A, with a maximum GFA of 905 m². The sale is in a far superior location, and is now improved with five shops and four residential units above. The sale sold in February 1999 for $300,000, and was analysed at $331 per square metre GFA, after including the area for stairs, walkways and toilets in the total GFA. (Exhibit 3)  Sale 10 – 1 Sussex Street, Mitchelton). This is a 1,196 m² site zoned Residential A (now Low Residential) with a maximum GFA of 538 square metres. The sale is opposite Brookside Shopping Centre, and has potential for development greater than Residential. The service station improvements (172 m²) have been retained by the purchaser at an added value of $100,000. The sale sold in July 1999 for $250,000, and was analysed at $464 per square metre GFA as vacant land.  Sale 11 – (348 Stafford Road, Stafford). This is a 5,304 m² site zoned Residential A, with a maximum GFA of 2,387 square metres. This is a larger site with medium density development potential. The sale sold in April 1999 for $760,000, and was analysed at $318 per square metre GFA.  Sale 12 – (451 Enoggera Road, Alderley). This is a 2,131 m² site, zoned Residential B3, with a maximum GFA of 959 square metres. The sale is a difficult site and is an older sale and appears to be a low sale. The sale sold in April 1998 for $155,000, and was analysed at $161 per square metre GFA. [31] Mr Crawford also provides the following improved sales of service stations:  Sale 13 – (10 Pine Street, North Ipswich) This is a 1,518 m² older style service station sold under lease to Caltex, including two workshops and a small shop. The sale is significantly inferior to the subject land and sold in February 2001 for $580,000.  Sale 14 – (76 Middle Road, Hill Crest). This is a 3,748 m² site also leased to Caltex, with a modern facility with remote two-bay workshop, and a large modern retail area. The sale is far superior to the subject land and sold in January 1999 for $2,100,000.  Sale 15 – (3426 Pacific Highway, Springwood). This is a 2,238 m² modern service station on a small site, which has an existing rental considered to be in excess of market levels, and which adds a premium of $300,000 beyond the market value of $1,770,000. Mr Crawford basis that conclusion on a rating for the site capitalized at $4.70 per litre for the fuel output through the site, giving a market value of $1,762,000. The market level of the sale is significantly superior to the subject land, and the site sold in December 2000 for $2,080,000. -- 10 of 24 -- 11  Sale 16 – (111 Browns Plains Road, Browns Plains). This is a 5,990 m² site which was a closed sited sale, and later renovated and reopened as a service station. The improvements are seen as adding only limited value, and the sale provides limited assistance. The sale sold in May 1999 for $700,000.  Sale 17 – (Mount Lindesay Highway, North MacLean). This is an 18,680 m² highway location BP site, with a modern retail outlet and separate produce store and two-car workshop. The sale is significantly superior to the subject land, and sold in April 2000 for $1,825,000.  Sale 18 – (367 Bloomfield Street, Cleveland). This is a 1,590 m² site with a three- bay workshop and medium size semi-modern retail area. The sale is inferior to the subject land, and sold in May 1998 for $1,250,000.  Sale 19 – (Gympie Road, Lawnton). This is a 2,023 m² BP site leased with rental at market value. There is limited competition in the market area and the sale is superior to the subject land. The sale sold in April 1998 for $1,130,000.  Sale 20 – (Caboolture-Bribie Island Road, Ningi). This is a 1,412 m² site with a relatively large retail area and is seen as inferior to the subject land. The sale sold in April 1997 for $925,000. [32] From those comparisons Mr Crawford determines a valuation of the subject land based at a rate of $375 per square metre of gross floor area (GFA), concluding a maximum GFA of 796 m² under Land Planning Policy 7.03 (redevelopment of ex-service station sites for duplex house, attached house or apartment building). Under that policy a maximum floor area of 45% of the site area is allowable. On that basis he concludes a value for that purpose of $298,500, less an allowance for decontamination of the site of $20,000, giving an unimproved value adopted of $280,000. [33] In his rejection of Mr Lindberg’s revaluation of the subject land as obtained under FOI, Mr Crawford notes that “a reasonable interpretation of this valuation is that it assumes the highest and best use to be a residential subdivision into residential single lots”. (Exhibit 2, page 7). However that cannot be true as that assessment made no allowance for contamination, because of its existing use as a service station. As noted in paragraph [14] the $400,000 valuation by Mr Lindberg was as a service station site. [34] To support his valuation of the subject land as a service station site, Mr Lindberg provides the following sales of vacant lands:  Sale 1 – (721 Seventeen Mile Rocks Road, Sinnamon Park – Lot 1 on SP 133092). This is a 3,698 m² site zoned as Low Density Residential LR and located to the east of the Centenary Highway, opposite a Homemaker-Retail Centre and a retirement village. The site is on the corner of Goggs Road and Seventeen Mile Rocks Road, near a traffic round-about at the intersection. The sale is seen as having less passing traffic, within inferior site lines and in an inferior location, but is larger and has more flexibility for design layout of the service station facilities. The sale adjourns a retail shopping property currently -- 11 of 24 -- 12 under construction, and is in a developing residential area. Overall the sale is seen as marginally superior to the subject land, due to the smaller size of the subject land. The sale sold in March 2001 for $435,000, and was analysed at $430,000. [35]  Sale 2 – (129 Orange Grove Road, Coopers Plains – Lot 12 on RP 883650). This is a 2,554 m² site zoned Residential A/Multi-Purpose Center MP4 – Convenience Centre, and located in a small suburban shopping group. Access to the site is direct for south-bound traffic, but for north-bound traffic is via traffic lights to the south of the site, and then via an easement B in Lot 13 on SP 128627, an adjoining shopping site to the south of the sale. The net site area is 2,433 m² after allowing for a 3 metre wide road widening. There are easements over part of the sale, providing access for parkland at the rear, and also for Lot 13 to the south. The sale is overall seen as inferior to the subject land due to its inferior location, inferior site lines, and access, and a less intense development location. The sale sold in December 1999 for $440,000, and was analysed, after allowing for external roadworks and headworks charges of $100,000, at $540,000. [36]  Sale 3 – (421 Beams Road, Zillmere – Lot 1 on RP 806341). This is a 9,439 m² site zoned Low Medium Residential, with a development area of 3,758 m². The sale is isolated from commercial areas in a growing urban area. Access to the sale is only for east bound traffic due to traffic restrictions on right turns for west- bound traffic. Beams Road carries only two lanes of traffic and has dirt shoulders on the opposite side of the sale. The sale overall is seen as superior to the subject land as it is a much larger site with a large modern service station development potential. The sale agreement included a transfer back to the original owner at a nominal figure of the balance of the area beyond the service station site area of 3,758 m². The sale sold in January 2001 for $680,000, was analysed at $880,000, after allowing for external roadworks and headworks charges ($200,000). [37] Mr Crawford rejects that those three sales truly reflect the market for service station sites, arguing that other sales for that purpose should also be considered. He draws reference to sales at Forestdale, Beenleigh, Kingston and Murarrie, although he provides no details of those sales. Mr Lindberg is aware of one of those sales, but he rejects those comparisons as he argues they are not located in a similar area as the Ashgrove location of the subject land. [38] Mr Crawford argues there are significant differences between the larger sizes of the sales provided by Mr Lindberg, and the smaller more restricted size of the subject land. He notes the following comparisons: -- 12 of 24 -- 13 Sale Number of service lanes On-site parking spaces Surrounding development (1) Sinnamon Park (2) Coopers Plains (3) Zillmere (4) Subject land 6 8 8 4 10 21 30 10 Retail precinct Retail precinct Residential Residential [39] It is agreed that modern service stations are retail outlets, of which only one product is fuel, and that those sale sites provide significant flexibility for on-site parking for those retail purposes. The restrictions upon parking and fuel service lanes on the subject land are obvious from the above schedule, but Mr Lindberg argues that does not preclude the site from being used as a service station, as evidenced by its ongoing operation for that purpose. However he concedes that access to and from the fuel lanes is more constrained than at the comparable three sales analysed. He also concedes that accessing the subject land is more constrained than at any of the three sales, and the restricted size limits its further development as a fast food outlet. However he notes that the new design of the subject land provides for the mechanical car wash facility. He agreed that the benefits of the greater retail exposure would add to the value of a service station site, and also that its location near to other retail outlets, rather than a residential location is preferred. [40] In respect of the costs of additional improvements at $100,000 provided by Mr Lindberg in his analysis of his Sale 2(Coopers Plains), he confirms that he was unable to confirm that figure from Council records. He agrees that the external roadworks may have been completed by one contractor in conjunction with the development of the video shop adjoining the subject land to the north. He also agrees that when purchasing Sale 2 the buyer would have been aware of the easement access from the south via Easement B in Lot 13. Mr Lindberg also concedes that his estimated cost of external works at $200,000 on Sale 3 (Zillmere) was a bulk figure, without details, supplied by the purchaser. He is still seeking confirmation of the breakdown of those costs. Decision: The Basis of Valuation – [41] I turn first to the matter of whether the valuation determined by the Chief Executive, as referred to s.33 of the Act relates to the unimproved value outcome of any valuation process, or if s.33 also refers to the method of concluding the unimproved value of the land. In that respect I note that s.33 states: -- 13 of 24 -- 14 “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.” [42] In seeking understanding the intentions of s.33, I note that the word “valuation” is taken to mean a valuation under the Valuation of Land Act 1944 (the Act). In that matter I referred to the decision of the High Court in Brisbane City Council v The Valuer-General (1977-78) 140 CLR 41, at page 56. In that matter the Court considered the matter of whether the appellant had satisfied his responsibilities to prove that the valuation of the Valuer-General (as he then was) was incorrect. The wording of Gibbs J (CJ) clearly has some relevance to Mr Crawford’s current argument, when speaking about s.13(7) which is now s.33, he said at page 56: “The argument based by the Valuer-General on this provision was, first, that the valuation which is presumed to be correct is the figure arrived at as a result of the process of valuation – the unimproved value in dollars and cents – and, secondly, that in order to displace the presumption it is not enough to show that an error in principle was made by the Valuer- General in arriving at the value, because the valuation, though unsoundly based, might nevertheless not be excessive. The word ‘valuation’ is used in the act in shifting senses, and, as was said in Kilcoy Shire Council v Brisbane City Council (1971) 124 CLR 60 at page 67, it ‘covers both the activity of assessing value and the reduction of that assessment to written form’. However I accept that in section 13(7) it at least includes the amount of the valuation, and that there is a presumption that the value in money terms shown by the Valuer-General in his notice of valuation is correct. The question then is whether a court on appeal is bound to accept the Valuer-General’s figure as correct unless it is positively established that the true value is lower, or whether it is enough to show that the value was reached as a result of an error in principle. In my opinion once it is shown that in making the valuation the Valuer-General acted upon a wrong principle, or made a serious error of fact, the presumption created by s.13(7) is rebutted. It is true that the Valuer-General might by coincidence reach the right result by a wrong process of reasoning, but I cannot attribute to the legislation the capricious intention that a valuation shown to have been erroneously made should be presumed correct simply because by mere chance the Valuer-General may have hit on the right figure. … In my opinion once it is shown that a valuation was made by a method fundamentally erroneous the presumption is rebutted. … The effect of these provisions is that an owner on appeal to the Land Appeal Court has the burden of proving the grounds of his appeal, but not the burden of proving that the amount which in his opinion should be the valuation is correct. Obviously, the court, if it allows an appeal, may determine the valuation at an amount different from that for which the owner contends.” [43] The matter of an understanding of the words “the valuation” was discussed in Kilcoy Shire Council v Brisbane City Council (supra) at page 67. In that matter Barwick CJ -- 14 of 24 -- 15 considered whether an appeal against a valuation should encompass the date of a valuation and the date of appeal, as well as the value assigned to the land. Barwick CJ compared the use of the words “valuation” and “the valuation”, concluding that where the words “the valuation” were used, it referred not only to the final figure determined, but also the date at which that valuation was to take effect. The analogy with the current matter is whether “the valuation” of the subject land contains factors other than the determined unimproved value, such as the method by which it is determined. [44] In the matter of Brisbane City Council v The Valuer-General (supra) the issue addressed was whether the appellant was bound by the burden of proving his grounds of appeal to demonstrate that “the valuation” was incorrect as required under s.45(4). Where it can be demonstrated that the Chief Executive acted on a wrong principle, then that burden was expunged. But that does not say that the valuation is a nullity, and that the valuation should be ignored. It merely removes the burden of proof from the appellant. [45] In the current matter the evidence is that Mr Lindberg did consider a different methodology in determining the highest and best use of the subject land in his re- evaluation of the objection by the appellant. On the basis of precedents, I believe that differing approach lends weight to relieving the appellant of his burden of proof of his appeal. The key to this matter then lies in whether the highest and best use of the subject land is for redevelopment as residential land, as argued by Mr Crawford, or as a service station site as argued by Mr Lindberg. [46] Before approaching the matter of what is the highest and best use of the land, I note Mr Isdale’s argument that the final approach to the valuation placed before the Court by the respondent, may be influenced by the case argued by the appellant. There are some analogy with that approach in the matter of determining costs relevant in matters of compensation. For example, in determining the reasonableness of costs sought by the parties, the Court of Appeal provided guidance in Commissioner for Railways v Buckler [1996] 1 QdR 18, where MacPherson JA said at page 23: “Stated in general terms, what the Court is now required to do in fixing the incident of costs under this rule is looked to the final position taken up by the parties.” [47] Now while there is some difference between the defence of a matter for compensation, and the defence of an appeal against a valuation, the principle that a respondent should have the freedom to choose his method of reply to any appeal is important. In respect of Mr Isdale’s reliance upon precedents supporting that a case should not be constrained to matters disclosed under FOI legislation I note that the Kalinicos (supra) matter related to whether the respondent could rely upon sales, other than those previously disclosed to the -- 15 of 24 -- 16 appellant during an objection conference. In that matter the Court found that information obtained under FOI legislation could not constrain an expert from presenting other evidence to assist the Court. The member said at paragraph [48]: “Now since that date there have been amendments to the Land Court Rules 2000 which now require, under s.23, that expert evidence be exchanged prior to the actual hearing. However that does not preclude the expert from forming his opinions based upon the total evidence as it appears relevant to him at that time. There is also scope, with the leave of the Court, for variations under s.23(3). I see no reason why Mr Brown should be restricted in his sales evidence applied in this matter.”. That was consistent with the decision of the President in Mayne Property Development Pty Ltd v Chief Executive, Department of Lands (AV94-64), 16 February 1996, at page 7. The Highest and Best Use of the Land – [48] In seeking to determine the highest and best use of the subject land, we seek to determine “the most advantageous purpose for which it was adapted” (Spencer v Commonwealth of Australia (1907) 5 CLR 418 per Isaacs J at page 441). In determining the most advantageous purpose for the land we must allow due weight for its potential utility, and to any probability of consent being given for such potential use. Factors influencing such consent include its use under any planning scheme effective for the area. Guidance in that respect was outlined in Adelaide Clinic Holdings v Minister for Water Resources (1988) 65 LGRA 410, where Jacobs J said at page 415: “In the first place, it is in my view, wrong in principle to determine the highest and best use by comparison of the notional market value for commercial development on the one hand, and residential development on the other. Common experience shows that land ideally suited for commercial development will fetch a higher price per unit of area than residential land, but it does not follow that the highest and best use of all land is a commercial use, for the highest and best use means exactly what it says – the most advantageous use of the subject land having regard to planning and all other relevant factors affecting its present and future potential. The first task of the valuer is to determine what that use is and then to value the land on that basis. It is not appropriate to determine the highest and best use by reference only to value.” [49] In seeking the weight to apply to the current planning designation of the subject land at the relevant date of 1 October 2000, I note that it was zoned for service station purposes. I note also that under the new City Plan 2000, which became effective at 30 October 2000, that planning designation was changed to “Low Density Residential”. I note also that, as the new draft City Plan 2000 had been widely known at the relevant date, then -- 16 of 24 -- 17 some consideration of that change of zoning should also have been duly considered. (JR and DM Stubberfield v Valuer-General (1988-89) 12 QLCR 328, per Carter J at 340.) [50] Mr Isdale also refers me to Stubberfield v Valuer-General, where Carter J says at page 331: “It is also a well recognised principle that land be valued for its highest and best use. What it can best be used for will be reflected in its true market value which takes account of any detriment the land possesses relevant to its use as well as any potential it has for its present or other use. Again the relationship between value and land use is immediately apparent. The hypothetical purchaser and vendor referred to by the High Court in Spencer will therefore take full account of the inherent characteristics of the land as well as the restrictions or otherwise upon its present or future use when deciding what sum of money the one will pay to the other to acquire it.” [51] Guidance in respect of the current use of the subject land for its long time use as a service station, must also be considered in respect of what a prudent purchaser might be expected to pay for the land. In that regard I note guidance also to be found in Gallagher v Brisbane City Council (1975) 2 QLCR 368, where it said at page 381: “Now, while the zoning of land pursuant to a town plan will always affect the highest and best use of the land at a particular date, and to that extent the value, it does not create that highest and best use. It may facilitate the immediate realisation of that highest and best use or, at the other end of the scale, it may totally prevent such realisation. In between these two, zoning may work to postpone, or defer, full or any realisation of the value of the highest and best use, until some intermediate action is taken and completed. But, in our view, the highest and best use remains the same throughout, and on the basis that the highest and best use on resumption date is different from the permitted use as of right of the land under the zoning on that date, the dispossessed owner is entitled to receive the present value of that highest and best use of the land on resumption date, so long as such present value exceeds the permitted use as of right value on that date, where the zoning provisions prevent the immediate realisation of the highest and best use value.” [52] The matter of any potential highest and best use was also addressed by the Land Appeal Court in Small & Anor v Brisbane City Council (1968) 35 CLLR 239, at 242; and later followed in Conroy v Commissioner of Irrigation and Water Supply as delegate of the Co-ordinator General (1976) 3 QLCR 77, at page 89. [53] The legislative direction in this matter is to be found in s.3 of the Act, which directs relevantly in respect of the unimproved value of the land: “3.(1) For the purposes of this Act – ‘unimproved value’ of land means – -- 17 of 24 -- 18 (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. (4) Notwithstanding anything contained in this section, in determining the unimproved value of any land it shall be assumed that – (a) the land may be used, or may continue to be used, for any purpose for which it was being used, or for which it could be used, at the date to which the valuation relates; and (b) such improvements may be continued or made on the land as may be required in order to enable the land to continue to be so used; but nothing in this subsection prevents regard being had, in determining that value, to any other purpose for which the land may be used on the assumption that any improvements referred to in subsection (1) had not been made.” [54] I am also reminded by Mr Isdale that guidance in respect of the existing use of the land is provided in Caltex Oil (Australia) Pty Ltd v Chief Executive, Department of Lands (1996- 97) 16 QLCR 435, where the Land Appeal Court referred at page 451 to the decision of the Privy Council in Tooheys Limited v The Valuer-General [1925] AC439, where Lord Dunedin said at p.443: “What the Act requires is really quite simple. Here is a block of land; assume that there is nothing on it in the way of improvements; what would it fetch in the market? It will be observed that the value is not what has sometimes been designated by the expression ‘prairie value’. The land must be taken as it exists at the date of valuation.” [55] However in seeking to ascertain what a prudent purchaser might pay for the land, we must consider that in the market place there are at least some potential buyers who are interested in making use of the land for its highest price. (Goode v Valuer-General (1979) 22 SASR 247, per Wells J, at p.256.) We must also accept as Carter J said in Stubberfield v Valuer-General (supra) at p.331, that the highest and best use will reflect its true market value, reflecting any benefits and detriments inherent in the land. [56] If we then consider the history of the subject land, we find that in 1999 the appellant virtually reduced the old service station site almost to a vacant state, retaining only certain old structures at an added value of $125,000. At that point of time, and apparently to the present time, the appellant has sought to retain the site for service station purposes. Presumably, for whatever reason, the appellant has seen its value as an operating service station, to outweigh any other potential for another use such as for residential -- 18 of 24 -- 19 development. Now while the new Brisbane City Plan 2000 has established a planning designation for another purpose, that does not mean that its projected highest and best use must be in accordance with that new designation. [57] Indeed the impact of zoning upon the value of land was enunciated in Land Acquisition, 4th edition by D Brown (Butterworths) where he said at page 106: “The zoning of land pursuant to a town or country plan will always affect the highest and best use of land at a particular date. But the zoning does not create that highest and best use. The zoning may facilitate the immediate realisation of that highest and best use, or, at the other end of the scale, it may totally prevent such realisation. In between these two, zoning may work to postpone, or defer, full or any realisation of the value of the highest and best use, until some intermediate action is taken and completed. The highest and best use remains throughout, and on the basis that the highest and best use on the resumption date is different from the permitted use as of right of the land under the zoning of that date, the dispossessed owner is entitled to receive the present value of that highest and best use of the land on the resumption date, so long as such present value exceeds the permitted use as of right value on that date, where the zoning provisions prevent the immediate realisation of the highest and best use value.” (Gallagher v Brisbane City (supra)). The definition of highest and best use refers to the market value of the land. (Cieslinski v Minister of Works (1978) 20 SASR 55). [58] In the current matter the relevant zoning of the subject land at 1 October 2000 recognises its existing use as a service station. The directions of s.3(4) of the Act therefore dictate that the existing use as a service station is to be assumed to continue, and that the improvements upon the land may continue to exist to enable the land to be used for that purpose. Had even the improvements been seen to constitute an “existing non- conforming use” of the land, which they are not, then that use would be seen in the statutory provisions governing the unimproved value, to constitute a lawful purpose for which the land is to be valued. (Chief Executive, Department of Lands v Body Corporate for Golden Sands Community Title (AV99-280), 15 December 2000, unreported, per the Land Appeal Court at paragraph [16].) [59] Considerations of an existing use under s.3(4) were also discussed in Caltex Oil v Lands (supra) at page 458, where the Land Appeal Court said: “The Valuation of Land Act is not a code of valuation methodology. It assumes the existence of the valuation process and requires its application in the cases and with the modifications prescribed by the Act. The starting point of that process is the determination of the highest and best use of the land being valued. (Adelaide Clinic Holdings Pty Ltd v Minister for Public Resources (1988) 65 LGRA 410, at p.415 per Jacobs J.) Only when that is done can it be seen whether the land is to be valued as improved or unimproved land. If, but only if, it is to be valued as -- 19 of 24 -- 20 improved land, the statutory assumption must be made. The highest and best use of the land is not to be determined on the assumption that the structures do not exist because whether the Act requires that assumption to be made ultimately depends on what is the highest and best use of the land. The Act does not refer to highest and best use and does not require the separate determination of such a use for land as unimproved land. The fact that land is being valued having regard to the ‘special provisions’ of the Valuation of Land Act does not justify departure from the basic principle of Spencer v The Commonwealth which are as applicable under valuation under the Act as to any other valuations. (Stubberfield v Valuer- General [1991] QdR 278 at pp. 283, 291 (1989) QLCR 328 at pp. 330, 340, per Carter J.” [60] A more recent deliberation of the existing use of land under s.3 was explored in Chief Executive, Department of Natural Resources and Mines v QNI Metals Pty Ltd & Anor (LAC2002/0038, 12 September 2002, to be reported. In that matter the Land Appeal Court said at paragraph [12]: “The highest and best use of land is determined by the market place where factors such as uses permitted under the planning legislation and the demand for the land are relevant. The current use may be indicative of but is not determinative of the highest and best use.” [61] The land in that matter was in fact the site of the Queensland Nickel Refinery at Yabulu near Townsville, and the key issue was whether the highest and best use of the land was as for its current use, or as land to be developed as rural home sites and rural pursuits. The Land Appeal Court found at paragraph [14]: “We consider that there is no difficulty, in principle, in regarding the existing use of the land as its highest and best use. Although the improvements are to be disregarded for the purpose of determining the unimproved value of the land, the Act does not require that the existing use be ignored or that the valuation be made in a vacuum. In The Valuer- General v Queensland Club (1991) 13 QLCR 207 at 216, the Court accepted as a principle of general application the statement by the High Court (made in relation to the Land Tax Assessment Act 1910 (Qld)) in Commissioner of Land Tax v Nathan (1913) 16 CLR 654 at 662: “But past improvements, no matter how much their presence or use has enhanced the price, are not to be deemed never to have been made; their prior existence and the effect of them are not to be ignored. So when the ‘improvements’ as still existing are to be ignored, nothing is said as to erasing the effect they or their use have had in bringing the land up to its present value.” [62] The question then to be determined is what is the highest and best use of the subject land? The basis of Mr Crawford’s argument is that the current level of redevelopment is an over-capitalisation of the subject land ($1,270,000), together with the retained structures -- 20 of 24 -- 21 ($125,000), coupled with its likely unimproved value for sale as a ongoing service station, would not accord with the residual land value for the site at $400,000, as determined by Mr Lindberg. However, as noted by Mr Lindberg, there is no evidence that the appellant needed to expend the full $1,270,000 for the redevelopment, unless it saw the overall value in so doing. Clearly the site is smaller than many of the more modern service stations, and its retail outlet and parking are less than optimal for modern retailing operations. [63] However the evidence is that the appellant chose to fully redevelop the site, which it is likely to see as strategically located upon the major traffic route connecting the western suburbs to the Bruce Highway. Current heavy traffic volumes at a significant level confirm that strategic location. In respect of Mr Crawford’s advice that the appellant has a site value of the subject land on its financial ledgers at a figure of $50,000, which was the price it paid for the site some 30 years ago, I find lends little confidence in the current reliability of that figure. [64] In respect of Mr Crawford’s assumption that the appellant was in a special position in respect of any future use of the site and remaining structures, not available to an arm’s length purchaser, the level of competition in the fuel industry would support that is not conclusive. As noted in Goode v Valuer-General (supra) we must assume that in the market place there are likely to be some buyers who are interested in using the land for its best purpose. While there has been some rationalization of service station sites over recent years, it would be unusual for any of the major fuel suppliers to readily relinquish a retail location in any strategic market location. [65] The fact that the appellant continues to maintain the current site, in spite of its agreed limitations, indicates, in my opinion, that the current use has economic value to the appellant. Indeed the retention of several workshops and retail structures on other sites sold for redevelopment purposes, support that the remaining structures on the subject land would provide added value to a range of purchasers, other than just of special value to the appellant. On the evidence before me I believe that the current use of the subject land as a service station site, reflects its highest and best use. In the event that the site discontinues to operate for that purpose at some time in the future, then the highest and best use at that time would be a matter for further consideration. Comparison of Sales – [66] Mr Crawford provides the following sales of improved service stations: -- 21 of 24 -- 22 Sale Area Sale Price Comparison 13 (10 Pine Street) 14 (76 Middle Road) 15 (3426 Pacific Highway) 16 (111 Browns Plains Road) 17 (Mount Lindesay Highway) 18 (367 Bloomfield Street) 19 (Gympie Road) 20 (Caboolture Road) 1,518 m² 3,748 m² 2,238 m² 5,990 m² 18,680 m² 1,590 m² 2,023 m² 1,412 m² $580,000 $2,100,000 $2,080,000 $700,000 $1,825,000 $1,250,000 $1,130,000 $925,000 Significantly inferior Far superior Significantly superior Limited assistance Significantly superior Inferior Superior, old sale Inferior On those comparisons as an improved service station business, the subject land could have a market value less than $1,825,000, but more than $1,250,000. While Sale 17 is significantly superior, it is also much larger than the subject land. Mr Crawford assesses an improved value of $1,450,000 for the subject land, from which he deducts the appreciated added value of improvements ($1,325,000), concluding an unimproved value as a service station site at $125,000. [67] However such comparisons as improved sites reflects the subjectiveness of the varying criteria ratings applied, which are not fully explained in the evidence. The analyses of improved sites is also seen as a less direct method of determining unimproved value, because of uncertainties in establishing the added value of improvements to be deducted. [68] If I then turn to the comparisons of vacant lands provided I find Mr Lindberg’s sales: Sale Area Analysed Price Comparison 1 (Seventeen Mile Rocks Road) 2 (129 Orange Grove Road) 3 (421 Beams Road) Subject 3,698 m² 2,554 m² 3,758 m² 1,769 m² $430,000 $540,000 $880,000 $400,000 Marginally superior/larger Inferior Superior/larger - [69] It is agreed that service stations are considered on a site basis where all of the features of location, access, size, visibility, shape and topography are assessed in providing a modern fuel and retail services outlet. The comparisons with Mr Lindberg’s sales support that the subject site has a lesser range of service lanes and on-site parking areas because of its -- 22 of 24 -- 23 more restricted size. It is also surrounded by residential development, rather than being in close proximity to other retail complexes. On those bases I agree that it is inferior as a site to Sale 2 (Coopers Plains) and Sale 3 (Zillmere). However I accept that the subject land has a superior location on the busy Stewart Road, which, in my opinion, balances the more residential nature of the surrounding area. On balance there is no evidence to refute Mr Lindberg’s assessment as nearer to the site value of his Sale 1 (Seventeen Mile Rocks Road). [70] While Mr Crawford has provided his additional sales to support his valuation of the subject land for residential purposes, I note that as former service station sites they reflect the following: Sale Area Sale Price 6 7 8 9 10 11 2,456 m² 1,553 m² 2,278 m² 1,674 m² 1,196 m² 5,304 m² $470,000 $402,000 $385,000 $300,000 (1999 sale) $250,000 (1999 sale) $760,000 (1999 sale) Presumably if those former service station sites were no longer to be used for that purpose, then the existing improvements provide little added value to the land. It is also likely that prior to sale contamination remediation would also have occurred. However a value for a different use provides no direct comparison for the use of the subject land as a service station site. [71] If I then consider direct comparisons with Mr Lindberg’s Sale 1 (Seventeen Mile Rocks Road), I agree that it is twice the size of the subject land, and is better located near the commercial Homemaker complex. It also has easier access to the site, but is located away from the busy Centenary Highway, with inferior visibility to the more strategically located subject land. On those comparisons, I agree with Mr Lindberg that its value as a site should be less than Mr Lindberg’s analysed sale price of Sale 1 at $430,000. On the evidence Mr Lindberg’s valuation at $400,000 is supported. Summary: [72] In summarising this matter I am reminded that generally, unless the appellant has proved that the Chief Executive has followed a wrong principle or made a serious error of fact, -- 23 of 24 -- 24 then the valuation is not challenged. (Brisbane City Council v Valuer-General (1977-78) 140 CLR 41 at p.56). While I note that Mr Crawford seeks for the onus of proof in this matter to be removed from the appellant, due to the apparent change in valuation method adopted by the respondent, the evidence does not support the appellant’s case. The valuation finally appealed against was the valuation at $400,000, determined following the objection. That was on the basis of a service station site. On that basis there is no grounds for relaxing the onus conferred upon the appellant under s.45(4) of the Act. Conclusion: [73] Having considered the whole of the evidence I am not persuaded that the appellant has proved his case. The appeal is dismissed, and the unimproved value of Lot 2 on RP 188359 as determined by the Chief Executive in the sum of $400,000 is affirmed. NG DIVETT MEMBER OF THE LAND COURT -- 24 of 24 --