Australian Finnish Rest Home Association Inc v Chief Executive, Department of Natural Resources [2001] QLC 14

LAND COURT, BRISBANE 22 March 2001 Re: Appeal against Annual Valuation - Valuation of Land Act 1944 - Valuation Roll No: 29747 - Local Government: Redlands. (V99-1506). Australian Finnish Rest Home Association Inc v. Chief Executive, Department of Natural Resources D E C I S I O N Background: This matter relates to land at 337 Cleveland-Redland Bay Road, Thornlands, and described as Lots 22 and 23 on SP109497, Parish of Cleveland. The subject land is located in a semi-rural locality about 5km to 7km south of Cleveland Business District, and is used for the purposes of aged persons facilities. Cleveland-Redland Bay Road is bitumen sealed with graded dirt shoulders and drains, and normal utility services including sewerage were available at the date of valuation. The subject land has an area of 3.519 hectares and is zoned as "Special Facilities (Aged Persons Home)" under the Town Plan of the Shire of Redland of 20 February 1988, effective at the date of valuation of 1 October 1998. The Redland Strategic Plan 1998 defines the land as "Special Facilities (Aged Persons Home)". The key issues are comparison of sales and the method of valuation. On 2 July 1999, the Chief Executive issued a valuation of the subject land at $975,000. Following an objection the Chief Executive amended that figure to $930,000 on 27 September 1999. The appellant has now appealed claiming the unimproved value should more properly be $620,000. Mr C Wilson of counsel, instructed by Sciacca's Lawyers, appeared for the appellant, calling evidence from Joanne Mary Baxter, a registered valuer. Mr K Fisher, counsel of Crown Law, appeared for the respondent, calling evidence from [2001] QLC 14 -- 1 of 17 -- 2 John Dewar, the Departmental registered valuer, now accepting responsibility for the valuation. The Evidence: (1) The Nature of the Land - The subject land is of moderate elevation with a gentle rise from road level towards the south-west to about the centre of the front parcel (Lot 22); then falling gently towards the rear boundary of the rear parcel (Lot 23). Access to Lot 23 is via an easement along the south-eastern boundary of Lot 22. Lot 22 has an area of 2.124ha and Lot 23 has an area of 1.395ha. Lot 22 is used for independent aged accommodation (a 45-bed aged care hostel), and the two parcels are separately fenced. There are limited views of the bay from the higher areas of Lot 22, while the remaining lands has local rural views. Lot 23 is proposed to be improved with 23 independant living villas to be operated and owned by the Australian Finnish Rest Home Association Inc in conjunction with the hostel. The subject land has good access to Cleveland/Redland Bay Road which is a major arterial route linking Cleveland, Thornlands, Victoria Point and Redland Bay, finally connecting to the Pacific Highway. The surrounding areas are used for rural agriculture, while the northern part of Thornlands is now developed for residential purposes. The nearest major shops (Koala Park) and medical centre are located about 1km south of the subject land. The Redland Hospital and the Mater Redland Private Hospital are located about 5km north of the subject land, and the Victoria Point Bowling Club is 2km to the south. (2) The Use of the Land - The 45-bed aged care facility on Lot 22 comprises a mixture of facilities in various buildings including a dementia unit, hostel and nursing home. It is also agreed by the parties that the proposed development upon Lot 23 (not approved 2 years ago) was designed to comprise 23 independant units, providing a total of 46 extra beds on the site. Mr Dewar concedes that 91 beds was the proposed development by the appellant, although he notes that from information supplied by the Redland Shire Council, those figures may not represent the highest and best use of the site as allowed under the Town Plan. (Transcript 48). -- 2 of 17 -- 3 The matter of the maximum bed capacity of the subject land however is not merely dependant upon Redland Shire Council's planning requirements. An important condition impacting the development of aged care facilities is the approval of any facility under Commonwealth legislation (the Aged Care Act 1997). Without formal approval of certified numbers of bed licences under the Act, Government subsidies will not be available. It is the nature of the aged care industry that without Government subsidy a facility is unlikely to prove viable in the marketplace. Ms Baxter advises that the number of bed licences which are likely to be approved by the Commonwealth in any particular catchment area, relate to pre- determined criteria established under the Act. Those criteria, to her knowledge, relate to a number of licensed beds per 1000 people aged more than 70 years in a particular catchment region. Ms Baxter relies upon those details following discussions with four aged care facility owners and developers, and she has then considered those in her analysis of the sales. A perusal of the Aged Care Act 1997, reveals a very complex plethora of "Aged Care Principles" governing the designation and allocation of aged care recipients in specific regions as determined by the accountable officer under the Act. The key to those allocations would appear to rely upon the Government's appreciation of the community's needs and the diversity of choice for different kinds of service. ("Aged Care Principles" Reprint 2, Part 5, p.131). The criteria to be met by applicants is established as required by the accountable officer (the Secretary to the Department of Health and Family Services), and published in the Commonwealth Government Gazette as appropriate. Clearly the bureaucratic processes of government influence greatly the possible allocation of approved "care" facilities. In the context of that Act I note that "care" is defined as: "care means services, or accommodation and services, provided to a person whose physical, mental or social functioning is affected to such a degree that the person cannot maintain himself or herself independently." (Acts of Parliament - Commonwealth of Australia (1997) Volume 4, page 3993). -- 3 of 17 -- 4 The thrust of that definition relates to a service or accommodation provided to a person, which could relate to a "bed" or to a "living unit". While the definition of "care" must be interpreted to relate to persons who cannot maintain themselves independently, the Act also provides some flexibility in respect of how the person can be accommodated. For example, "flexible care" is defined under s.49(3) which provides for alternative ways of providing residential care services and community care services. Such services could for example extend beyond the normal nursing home and hostel accommodation to self-contained units. However the legislation would appear to draw distinction with respect to a definition of "independent self-contained units". Without further details about the refusal of the appellant's application for 40 extra beds two years ago, the reasons for that refusal are unclear. It may, for example, have demonstrated that community needs were being met by the then current approved facilities in the region, or it may have related to the type of facilities being proposed. Ms Baxter's understanding was that the extra beds were not needed at that time. However what is clear is that without access to Government subsidy, the market value of a proposed aged care facility was likely to be adversely impacted. In respect of other possible legislative impacts upon aged care facilities, I note also Queensland Government legislation Retirement Villages Act 1999. That Act provides for establishment and operation of retirement villages, and among other objects provides in s.3(f): "3(f) To provide a clear regulatory framework to ensure certainty for the retirement village industry in planning for future expansion;" The possible impact of s.3(f) in the current matter could be to influence the market for retirement village sites, and thus the value in prices paid where such certainty exists. However, I note also that s.5(1) defines a "retirement village" to refer to premises such as independent units or serviced units under a retirement village scheme, which is further defined under s.7 of that Act. In the current matter the sales and the subject lands are referred to either as "aged care facilities" or "retirement centres". While there was no direct evidence that any of the sites had been registered as a "retirement village" under the Act, the -- 4 of 17 -- 5 opinions of both valuers would suggest that the Retirement Village Act 1999 would have some application in the current matter. In respect of the zonings of the various sales and the subject land, it is noted that there is a difference in respect of the zonings applying to the various sites. The subject land is zoned as "Special Facilities" under the Town Plan, while most of the sales analysed are zoned either as "Residential A" or "Rural - Non-Urban". Mr Dewar advises that such differences are not uncommon in the Redland Shire, and lack of zoning for aged care purposes has not tended to deter potential developers from acquiring and seeking development approval for aged care facilities. The Redland Shire Council considers the particular development on an individual basis as a consent application. (3) Method of Valuation - The two valuers have sought different approaches to assessing the unimproved value of the subject land. Both accept the well established principle by courts at all levels that comparisons with sales of vacant or lightly improved land is the preferred method of assessing unimproved value. (WM and TJ Fischer v. Valuer-General (1983) 9 QLCR 44, at 46; R and MM Barnwell v. Valuer-General (1990-91) 13 QLCR 13, at 17; and Hans and Else Grahn v. Valuer-General (1992-93) 14 QLCR 327, at 328. Ms Baxter has compared her sales of comparable properties on the basis of "profit centre" opportunities. Because of the different types of developments typically located upon aged care facilities, such as hostels, beds in rooms or independent living units, Ms Baxter seeks to understand how those profit centres would be interpreted in the marketplace. It is her understanding that it is upon such value judgments that developers of aged care facilities purchase properties for development purposes. However, she concedes that it is important when following such an approach, to either have a detailed knowledge of the actual number of "profit centres" being built or proposed to be built. In her analysis of her sales, Ms Baxter has sought average living unit prices, and concluded that beds in rooms and living units should represent the profit centres. She concedes that living units may occur either with one, two or three bedrooms, and -- 5 of 17 -- 6 vary from more luxury up-market facilities to a more basic standard unit. However, she argues that in aged care centres the second and third bedroom do not represent extra locations for profit, but are more likely to be used by a single family for visitors or as a study. Ms Baxter concedes that a more detailed analysis could be undertaken in respect of the ratios of the different types of residential units, but argued that for the purpose of this exercise the patterns of land value are disclosed by the more simplistic approach. Ms Baxter concedes that in her averaging process she adopted more a median price per unit rather than an average price per unit. She adopted the approach of selecting a medium/median price at the bottom end of the higher price range for the units, as she saw it representing the general value of the overall projects, or the more commonly occurring price for a unit. In her analyses she has assessed the quality of the units based upon either the final products developed, or the proposals as outlined by the individual developers. Mr Dewar accepts that an approach on a per bed basis has relevance, and in fact the approach adopted by the respondent until recently was on a per unit basis. Under such an approach Mr Dewar advises that the respondent adopted a standard unit of two bedrooms in an attempt to even out discrepancies in unit size. That in part sought to ensure some across-the-board relativity between properties. However, because of increasing difficulties in obtaining development densities from the local Council, the respondent has now adopted the rate per square metre basis as the best method of ensuring reasonable relativity between properties. Mr Dewar agrees that the Council does have a density approval rate of 45 persons per hectare for sites specifically zoned for aged purposes. However he notes that where the land is zoned for other land uses, then density data is very difficult to be obtained. Mr Dewar seeks support for the use of a per square metre basis in the decision of this Court in VR and CG Schokman v. Chief Executive, Department of Natural Resources (AV97-367), 23 December 1998, unreported. Mr Dewar also argues that due to the changing nature of aged care developments, the rate per square metre of site area makes better provision for changes in style and character now existing, compared to say an aged care facility of -- 6 of 17 -- 7 an earlier period, thus facilitating easier comparisons. He also notes that the rate per square metre basis avoids any special need to apportion different qualities or type of development on the varying sites. Mr Dewar further advises that the time demands of undertaking each annual valuation have forced the respondent to seek a more direct, simpler method of assessing the unimproved value of aged care facilities. It was in the pursuit of such simplifying the process that Mr Dewar has relied upon the simpler per square metre basis. Because of the need to identify maximum highest and best use of varying sites, Mr Dewar argued that a rate per bed would be more consistent than using a rate per unit. He argues that would better facilitate the determination of site densities of each site, a factor influencing site value. However, Mr Wilson rejects reliance upon Schokman, which he argues was not on the current point, but dealt more with the costs of headwork charges and earthworks on that site. Mr Wilson argues that the use of a per square metre basis in Schokman, may have been suitable in the circumstances of that matter but, in his opinion, it provides no reliable basis for the adoption of that approach in the current matter. In the context of this matter, I would agree that Schokman provides no definitive direction. I am also directed to a former decision of this Court in The Proprietors "Cypress Gardens Waters 1" v. Chief Executive, Department of Natural Resources (1997-98) 18 QLCR 362, where the use of a per square metre basis of site area was accepted. However that matter also dealt mainly with the headwork charges and filling, and the actual method of valuation to be adopted was not an issue. Like Schokman, I believe it provides no direction in this matter. (4) Comparison of Sales - In support of her analysis Ms Baxter provides the following sales:  Sales 1, 2 and 3 - (Melaleuca Grove Garden Villas - Capalaba) The sales involve an 11950 square metre "Residential A" parcel sold in January 1996 for $340,000; an 11730 square metre "Residential A" parcel sold in June 1997 for $450,000; and a 4,204 square metre "Residential A" parcel plus road closures under contract at May 1999 for $220,000. The lands have subsequently been -- 7 of 17 -- 8 developed as 46 one and two bedroom units, and a further 12 units are under construction. The sales are seen as a low density, moderately valued property in a superior location. Ms Baxter notes that Melaleuca Grove Garden Villas is in fact a retirement village project, and is thus not the same as a nursing home, and in her opinion, is not really comparable. The sales were analysed to have median valued units at $180,000 each, a site rate varying from $33 to $37 per square metre, and analysed unit rates varying from $17,174 to $18,276. The sales demonstrate a low-density factor of 488 square metres to 515 square metres per living unit. Ms Baxter concedes that she was uncertain about whether the 12 units then under construction were one, two or three bedroom units. However she determined the densities of the site based upon the sale price of the units, and advice from the developer. Because of uncertainty about the additional 12 units, Ms Baxter has not included those units in her analysis of Melaleuca Grove Garden Villas rates.  Sale 4 - (261 Preston Road, Wynnum West) This was a 20,200 square metre "Residential A" parcel sold in March 1998 for $1 million. The land has been developed as a 100-bed nursing home, which is seen to be a budget facility in a superior location. The sale analysed at $50 per square metre or $10,000 per unit, which had a high density rate of 202 square metres per living unit.  Sale 5 - (Wellington Manor, Birkdale) This is a 27,398 square metre "Special Facilities" parcel sold in September 1998 for $733,300. The land adjoins other aged care facilities of the same developer, including separate living units. The sale has been developed as 53 luxury independent villas of 1, 2 and 3 bedrooms. The units cost between $195,000 to $300,000, and have been averaged at $220,000 per unit. The sale is seen as a superior location, and demonstrating a low density of 517 square metres per unit. -- 8 of 17 -- 9 The land was analysed at $27 per square metre, and $36 per square metre after a further $250,000 of road upgrade was completed. The luxury living unit sites were valued at $13,836 per unit to $18,553 per unit (after roadworks).  Sale 6 - (534 to 542 Redland Bay Road, Victoria Point) This is a 28,047 square metre rural non-urban parcel sold in June and November 1998 for $565,000. The sale is proposed to be developed as 54 luxury independent villas (11 three bedroom, 41 two bedroom and 2 one bedroom) at an average unit price of $175,000. The sale is seen as having comparable to superior aspect, with an analysed rate of $20 per square metre, and a low density rate of 519 square metres per unit. Following approval for the bed licences and for building approvals, the sale was placed back on the market for $1.3 million. However Ms Baxter advises that the proposal to resell apparently occurred as a result of the developer being stretched in his resources, as he was also developing another site at that time. Ms Baxter argues that any increased price for a resale perhaps would reflect the extra value seen by the second purchaser who perhaps anticipated an increased density beyond the 54 units in the original approval. Ms Baxter also argued that any subsequent resale at $1.3 million would be out of line with the market for a development of 54 units, as demonstrated by her sales in this matter. Mr Dewar rejects the sale at $585,000 (including commission of $20,000) as out of line with the market.  Sale 7 - (11 Newman Street, Caboolture) This is a 28,700 square metre "Residential A" parcel sold in September 1997 for $650,000 ($23 per square metre). The land has been developed as 182 units (124 one bed and 58 two bed) valued between $75,000 to $95,000 at an average of $81,000). After approvals were obtained the land was valued by the developer at $1,100,000 ($38 per square metre), and analysed at between $3,571 per unit and $6,044 per unit. The sale is in a superior location, is developed for budget quality units, and has a high density rate of 167 square metres per unit. The sale is seen as providing a lower parameter for comparison purposes only. -- 9 of 17 -- 10  Sale 8 - (former Rose World site - Redland Bay Road, Victoria Point) This is a 32,370 square metre rural non-urban parcel sold in February 1999 for $850,000, subject to the developer obtaining the necessary approvals for the site. The sale is proposed to be developed as a 108 bed nursing home with a potential additional 50 to 100 bed hostel. The sale was analysed at $26 per square metre, or $7,870 per unit (108 beds), $5,380 per unit (158 beds), or $4,087 per unit (208 beds). The sale is seen to reflect budget level units with comparable/superior aspects, and reflecting higher density rates of 281 square metres per unit (108 beds), 196 square metres per unit (158 beds), and 151 square metres per unit (208 beds). The developer (Casagrande) developed the site for a client who was able to transfer the bed licences from a property at Greenslopes which had been reclassified as sub- standard accommodation under the Commonwealth legislation.  Sale 9 - (Forest Place - 138-156 Smith Street, Cleveland) This is a 45,652 square metre rural non-urban parcel sold in October 1998 for $2,250,000 ($49 per square metre). The sale is proposed to be developed as 117 units (61 self-contained and 56 serviced apartments). The self-contained units are being marketed between $132,800 and $330,800, and the service apartments between $162,700 and $415,900. The units are seen as luxury units at a median value of $225,000, in a far superior locality, with moderate density of 390 square metres per unit. The sale was analysed at $19,231 per unit.  Sale 10 - (144 Bay Street & Wellington Road, Cleveland) This is a 9,085 square metre rural non-urban parcel sold in August 1998 for $450,000 ($50 per square metre). The sale is currently being developed as a 62-bed aged care facility, is a smaller site with superior aspects, and analysed to have a high density rate of 146 square metres per unit, and $7,258 per unit site. To support his valuations, Mr Dewar analysed the following common sales: -- 10 of 17 -- 11  Sale 1 - (former Rose World site - Ms Baxter's Sale 8) Subsequent to the sale the site has been resurveyed for road dedication purposes and a Special Protection Area (SPA) of 1.02 hectares has been declared at the rear of the site. The SPA is to be maintained in its natural state, and is preserved as a koala protection habitat. The sale is being developed for hostel (32 bed), nursing home (30 bed), extra care accommodation (28 beds), and dementia building (18 beds). An existing old dwelling is to be retained as a manager's residence and is seen as having an added value of $20,000. The SPA was afforded a nominal value of $50,000. The reduced usable area of the sale (2.022ha) was analysed at $780,000 ($38.57 per square metre), and is seen as overall superior to the subject land.  Sale 2 - (144 Bay Street & Wellington Road, Cleveland - Ms Baxter's Sale 10). The sale is opposite Cleveland Hospital and the Cleveland Mater Private Hospital and overall is seen as superior to the subject land, and was analysed at $49 per square metre.  Sale 3 - (138-156 Smith Street, Cleveland - Ms Baxter's Sale 9) The sale is seen overall as superior to the subject land, and with less passing traffic. The sale is closer to amenities, but not within walking distance, but is closer to hospital facilities. The sale was analysed at $56 per square metre and is seen as superior.  Sale 4 - (Wellington Manor, Birkdale - Ms Baxter's Sale 5) The sale has subsequently been amalgamated with the adjoining retirement village, and is nearer to facilities such as shops and the railway station. Traffic volumes however along Birkdale Road are heavy, but the sale overall is superior to the subject land. Ms Baxter argues that her method of analysis confirms that there were rates respectively for land purchases that applied to budget value low density units; low density moderately valued units; and low density luxury style units. She therefore conducts her comparisons of the sales allowing for those three factors. -- 11 of 17 -- 12 Ms Baxter concedes that if her original understanding of the capacity of the subject land was in fact for 91 units as noted by Mr Dewar, instead of the 45 units in her analysis, then she would need to rethink her rate applied to the subject land. However that review would also have to make allowance for the risk of obtaining an allocation of increased bed licences in the now more competitive market in that region. Adopting her comparative rates for the subject land Ms Baxter has assumed a budget level value for each unit ($112,000), assuming that it has an inferior location, and is developed at a low-density of 517 square metres per unit. Ms Baxter has assumed that government restrictions upon villas or independent living units are less stringent than those applying to nursing home beds, although the units would need to meet an acceptable standard in order to attract a government subsidy. Decision: There is general agreement in respect of the nature and topography of the subject land, although the valuers differ slightly in respect of the impact of proximity to shopping for residential aged care facilities. However, collectively there is no major issue in respect of the land itself. In respect of the highest and best use of the subject land, I can accept that it is for its current purpose for aged care, and is likely to include a 45 bed facility on Lot 22, and also 23 living units, each of two beds on Lot 23, giving a total of 91 beds on the site. I also accept that the current zonings of the relevant sales and the subject lands are not a definitive factor in the development of age care facilities, as the Council may provide consent approvals, subject to the developments proposed. (i) Method of Valuation - A key issue lies in the relevance of the different methods of comparing the sales as applied by the two valuers. In summary, both valuers have sought to rationalise the valuation approach in what is recognised as an increasingly complex industry output. The changing nature of aged care facilities now further complicates the previous valuation approach of seeking comparisons upon a standardised living -- 12 of 17 -- 13 unit basis. Both valuers agree that if all details of costs and unit type are available, then a very detailed factorised comparison can occur. Ms Baxter's approach of adopting a "bed and living unit" basis has some logic in that it relates to both the developer and the end user for aged care services. I believe there is no difference between Ms Baxter and Mr Dewar in respect of using "beds" as the basis for nursing homes and hostels. However, her assumption that units are only purchased for a single family unit, and therefore the number of separate bedrooms is only one factor in the extra price that people pay for a larger or more expensive unit, in my opinion, may tend to oversimplify the marketplace. Having made that assumption, Ms Baxter then moderates her comparisons by making allowance for the density of the units, the quality of the living unit, and the specific attributes of the relevant parcel of land. In adopting his broader approach of comparing the sites on a per square metre basis, Mr Dewar appears to acknowledge that the existing zoning is unlikely to be a problem for a prudent experienced purchaser. He also appears to assume that a developer was likely to seek to maximise the development potential, and would proceed to contract on the basis only of the appropriate approvals and licences being available. Mr Dewar also notes that in the Redland Shire area developers are competing for land with users for residential development purposes. Having adopted his site rate per square metre, Mr Dewar then makes allowance for the special features of each site. The matter of whether one approach should be preferred to another was addressed in Cairns Resort Investments Pty Ltd v. The Valuer-General (AV91-3 and 321), 19 June 1992, unreported, where the learned Member said at page 20: "It seems to me that there is no principle which demands that valuation criteria must be reduced to any particular unit of comparison, whether it be 'per room' or 'per square metre of site area' or some other such as 'per square metre of permissible gross floor area'. It is a basic valuation principle however that when comparisons are being made 'like should be compared with like'. " However in the context of that matter the Land Appeal Court in (1994-95) 15 QLCR 1, found at page 7: -- 13 of 17 -- 14 "For reasons that potential developments may differ (and in fact do differ) in size, quality and mix of the components contained therein we prefer the method of valuation used by Mr Goodman-Jones to that used by Mr Malone who makes valuation comparisons between the subject site and comparable hotel sites on a 'per room' or on a 'gross floor area' (plot ratio) basis. Mr Goodman-Jones has valued the sites on a value per square metre basis, taking into consideration matters such as plot ratios, areas, situation, zoning and the like." While the Cairns Resort Investments matter dealt with a major hotel development (Cairns International Hotel), and possible market movements during the volatile period of a national pilots' strike, the principles evident in that matter also have relevance in the current matter. The sales adopted by the valuers in the current matter display a wide range of sizes, quality and mix of components, and the potential for a consent use by Council was also noted in Cairns Resort Investments (page 17). However while the circumstances of this matter, in my opinion, lead me towards Mr Dewar's approach on a per square metre basis, I believe the need to compare like with like is a paramount principle to be applied. (ii) Comparison of Sales - In considering the sales I note that Ms Baxter sees the most relevant sale as her Sale 6, which is the closest sale to the subject land. She rejects her Sales 1 to 3 as different types of developments; sees her Sales 4 and 5 as superior and far superior; and her Sale 7 as providing a bench mark only in respect of the quality of the developments proposed. In considering his sales Mr Dewar relies mainly upon his Sales 1 to 3 with his Sale 4 only as a support sale, noting that Sale 1 is the most comparable. If I summarise the key sales I find that both valuers see the common sales (Ms Baxter's Sales 5, 8, 9 and 10 and Mr Dewar's Sales 1 to 4), as all superior to the subject land. Because of its different locality, I get little assistance from Ms Baxter's Sale 7, and I agree sales 1 to 3 reflect a different type of market. The most comparable sales would appear to be Sale 6 (534 to 542 Redland Bay Road, Victoria Point) and Sale 8 (former Rose World site). While Sale 10 at Cleveland provides some comparison, its much smaller size complicates direct comparability, as smaller sites usually attract a higher rate per square metre. -- 14 of 17 -- 15 Adopting the comparisons provided I find the following analyses: Sale Area (m²) Rate per m² Rate per unit Ms Baxter Mr Dewar 6 28,047 $20 $10,463 Comparable/superior Out of line 8 32,370 $26(Baxter) $ 4,087 Comparable/superior Superior 8 - $38(Dewar) $ 7,220 - - 10 9,085 $50 $ 7,258 Superior/smaller Superior If I then compare the rates per square metre for Sale 8, I find that the difference between Ms Baxter's ($26) and Mr Dewar's ($38) reflects the allowance made predominantly for the SPA on Sale 8. I note that the building approvals specifically prohibit any development upon 1.02ha which is to be retained as natural habitat. I agree that Mr Casagrande as an experienced developer was likely to have been aware of the proposed SPA when he acquired the site, and would have allowed for that in his offer to buy. That is not uncommon in the Redland Shire which is seen as a natural habitat for koalas. While that SPA may provide some visual benefit to the sale site, the loss of 1.02ha of developable land would be a matter for consideration by any prudent purchaser/developer. It is because of some aesthetic visual benefit to any aged care development upon Sale 8, that Mr Dewar has allowed a nominal value of $50,000 for the 1.02ha of SPA. I also find the allowance of $20,000 for the old proposed manager's residence as appropriate under the circumstances. I believe any added value inherent in the old disused dam site within the SPA would be included in the nominal figure of $50,000 for that site. However the SPA was likely to be traded off as the developer's open space contribution required by the Council (normally 10% of the area). On that basis I believe that Mr Dewar's analysed rate of $38 per square metre is the more appropriate rate for consideration. -- 15 of 17 -- 16 In drawing his conclusion that the subject land is inferior to Sale 8, Mr Dewar has made allowance for the more direct uninterrupted walking access to the local Koala Park Shopping Centre located about 1.5km from the subject land, and 0.7km from Sale 8. There is no need to cross any roads from Sale 8, but residents from the subject land must cross two roads between the subject land and the shops. Mr Dewar has also estimated a rate per bed for Sale 8 at $7,220, compared to Ms Baxter's rate per living unit at $4,087. If I turn then to Sale 6, I find that Ms Baxter's rate of $20 per square metre for the site reflects the value of land prior to the gaining of any approvals for bed licences and building and development approvals. Any resale of that property at $1.3 million, in my opinion, would tend to support Mr Dewar's conclusion that the approval subsequently obtained, would reduce the risk to any developer, and therefore be reflected in the extra price paid. If I was then to recalculate the rate per square metre for that site, I could conclude a rate of $46 per square metre. Ms Baxter sees Sale 6 as comparable, but superior in location. However, Mr Dewar advises that Sale 6 was not resold at $1.3 million at this time, due apparently to changes in Commonwealth legislation impacting taxation benefits upon investments. Hence any presumption about what value Sale 6 might now have following the obtaining of approvals is merely conjecture. The sale is currently not on the market. On that basis I place less weight on Sale 6, either at $20 per square metre or $46 per square metre in the current matter. There is some inconsistency in comparing Sale 6 on a living area basis ($10,463) compared to Sale 8 ($7,220) and Sale 10 ($7,258). On balance I believe that Sales 8 and 10 provide the most reliable comparisons, and that the subject land as a per square metre rate less than $38. Summary: In analysing Ms Baxter's calculations, I find that comparisons of living units, provide considerable scope for error of judgment in respect of the impact of densities and quality of unit, beyond further comparisons for features of the site. Indeed her rate of $15.45 per square metre for the subject land (based upon her living unit -- 16 of 17 -- 17 approach) appears well out of line with relativities for Sales 6, 8 and 10. I reject the living unit approach in this matter, and adopt a per square metre site value approach. If I then note Mr Dewar's determination he has allowed a rate of $35 per square metre for the front parcel (Lot 22), and $30 per square metre for the rear parcel (Lot 23). Ms Baxter has not adequately discredited those figures. I also accept Mr Dewar's allowance for multiple holding and extended selling time of 20% for the two lots. On that basis I find that Mr Dewar's determination at $930,000 has not been discredited. Noting directions in s.33 of the Act, I am reminded that the Chief Executive's unimproved value as determined is correct unless proved to the contrary. I note also that under s.45(4) the onus to prove that the Chief Executive has made an error of fact or followed a wrong principle rests upon the appellant. (See Brisbane City Council v. Valuer-General (1977-78) 140 CLR 41, at 56). Conclusion: Having considered the whole of the evidence I am not persuaded that the appellant has proved its case. The appeal is dismissed and the unimproved value of Lots 22 and 23 on SP109497 in the sum of $930,000 is affirmed. (NG Divett) Member of the Land Court -- 17 of 17 --