Baxter v Chief Executive, Department of Natural Resources [1999] QLC 75

LAND COURT, BRISBANE 16 July 1999 Re: Appeal against Annual Valuation – Valuation of Land Act 1944 – Valuation Roll No: 529 Local Government: BCC-Ithaca. (AV98-881). Nancy E Baxter v. Chief Executive, Department of Natural Resources D E C I S I O N Background: This matter relates to a parcel at 5 Rees Street, Kelvin Grove, and described as Lot 46 on RP 76784, Parish of North Brisbane. The subject land has an area of 430 square metres and is located about 3.1 km north-west of the Brisbane GPO, adjoins Picot Park to the north, and is about 700 metres from the Kelvin Grove Campus of the Queensland University of Technology. The land is zoned “Residential A” under the Town Plan for the City of Brisbane of 13 June 1987, and effective at the date of valuation of 1 October 1997. The key issues are comparison of sales, impact of traffic, noise and odours and the impact of contamination on adjoining Picot Park. The subject land is a gently sloping parcel falling generally to the west along Rees Street, and is level with Picot Park to the rear. Picot Park is listed on the Contaminated Sites Register of the Department of Environment (Property No 643), being listed for land-fill purposes. Rees Street is bitumen sealed with concrete kerbing and channelling, and the bitumen carriageway was widened by the Council about 1996 to provide better access for trucks using Rees Street. All normal urban services are available. On 9 March 1998 the Chief Executive issued a valuation of the subject land at $70,000. Following an objection the Chief Executive confirmed that valuation on 23 October 1998. The appellant has now appealed that figure claiming the unimproved value should more properly be $35,000. [1999] QLC 75 -- 1 of 14 -- 2 Mr F Baxter appeared and gave evidence for the appellant. Mr R Paterson, Principal Legal Officer, appeared for the respondent, calling evidence from Mr DR McKinnon, the Departmental Registered Valuer responsible for determining the valuation. The Evidence: (1) Impact of Contamination – The appellant argues that widely reported claims of possible public health issues associated with Picot Park, and the former dumping of asbestos-type materials upon that land, were likely to have a detrimental impact upon the value of the subject land, which adjoins Picot Park. It was noted that owners of neighbouring lands near the subject land were reported both on television and in the press on 15 and 23 March 1998, arguing the potential risks associated with five residences in Rees Street (including the subject land), and a sixth parcel at 47 Picot Street, Kelvin Grove. Mr Baxter has resided for 79 years on the subject land, and has a very thorough and detailed memory of the events associated with the dumping operations on Picot Park. It is his argument that for some time about 20 to 30 years ago the current area of Picot Park was used as a Brisbane City Council (the Council) landfill dumping site for old building materials. Part of that landfill involved truck loads of fibrous cement materials from the Hardy Bros workshop at Newstead. Those materials tended to be dumped towards the lower areas nearer to the banks of Enoggera Creek. However, often fibro materials were indiscriminately dumped up to some 20 to 30 metres from the creek banks, and nearer to the current park/playground facilities, immediately behind the subject land. Mr Baxter has clear recollection of several of such indiscriminate dumpings, because he had reason to chasten the workmen dumping the materials at the time. As he recalled he was subjected to verbal abuse and the workmen just drove off leaving the materials where they had dumped them, much nearer to the subject land than had been originally intended by Council. The initial dumping point had been within about 3 to 5 metres of the creek bank, but dumping of fibro materials occurred well outside that intended locality. Eventually Mr Baxter was able to convince people not to continue spreading the material nearer to the subject, but already a considerable amount of material had been dumped adjoining the subject land. Mr Baxter further recounts that weekly the dumped materials were later spread out more evenly by a Council front-end loader over the weekends. While Mr Baxter agrees that -- 2 of 14 -- 3 the majority of old building material was dumped nearer the creek, he argues that considerable material was dumped on the higher areas, now Picot Park. Mr McKinnon concedes that Picot Park is an old landfill area, which has subsequently been further filled and levelled, and is now an attractive park with trees, grass and playing areas for children, located at the top of the hill fronting Picot Street. The park falls gently towards Enoggera Creek, and then falls more steeply into the creek bed. Access to Picot Park is from Picot Street. A Council contour map (showing 1 metre contour intervals), was supplied showing the general topography of the park area, and confirming that the park, and subject land, are approximately at the same height, also agreed by Mr McKinnon. However Mr McKinnon was aware of the potential impact of contamination on Picot Park, and allowed a discount of 30% for any risk that might attach to the subject land as a consequence of its proximity to Picot Park. He supplied a copy of an internal Council memorandum which recognised that former use of the land for landfill purposes, some later rehabilitation undertaken to remedy site contamination, and a conclusion from the Environment Officer to the effect that “installation of playground equipment will not cause health risks as long as excavation of construction holes do not go deeper than 0.5 metres”. Because of that report, and the clearance from the Department of Environment, the Council administration believes that any old fibro cement is now covered by over 1 metre of clean fill from 8 August 1995, and poses no health risk. Mr Baxter agrees that clean filling was imported on to the Picot Park area, and it was spread across the area by heavy machinery in 1995. He observed the spreading of the top sand (on the top of the hill), and he noted that shale filling was deeper near the creek bank (perhaps at least 1 metre deep). The fill was only 0.1 metres deep, in his opinion, on the top of the hill behind the subject land. While Mr Baxter had not measured the depth in that area, he was nevertheless convinced that it was only of the order of 0.1 metres, and not 1 metre deep. Mr Baxter draws support from the contours of the land which indicate that 1 metre of fill has in fact not been deposited on the area of the park containing the play equipment, immediately behind the subject land. He confirms that about 0.1 metres of “topping” sand was placed across the whole area of the park, part on the shale fill near the creek, and part directly onto the old filled area at the top of the hill near the playing area. The reclamation work was supervised by a community group, in conjunction with the Brisbane City Council Rehabilitation Program. It is Mr Baxter’s argument that the risk of contamination by the asbestos in the fibro cement is one of perception, rather than reality. Because asbestos is now recognised as a -- 3 of 14 -- 4 serious public health risk, he concludes that any uncertainty would demonstrate a lack of confidence in the use of the land, and hence its value. He agrees that Council administration would only authorise use of the land for park purposes, in the absence of any possible risk. However he argues that, while he has not dug holes to prove his claim, Council officers may have been inadequately informed on the matter, and he confirms his opinion of the minimal depth of clean fill over the park area in certain places. He also accepts the advice of Dr Brown, a recognised expert from the Australian Medical Association, that while asbestos dust could cause potentially fatal respiratory problems, if the asbestos was buried deeply it was unlikely to cause problems. Department of Environment interpreted that a minimum depth of 0.5 metres of fill would provide adequate protection for health reasons. Mr McKinnon agrees that he did not have access to the Council internal memorandum at the time of preparing his valuation, and only obtained the memorandum on the day preceding the hearing (14 April 1999), subsequent to his discussions with the Environment Officer of the Council. As he was aware of some potential risk of public uncertainty about properties in Rees Street, because of the history of Picot Park, he chose to apply a conservative estimate to the subject land. Mr McKinnon did not have any comparable sales of lands adjoining an area listed for asbestos contamination purposes, and sought assistance from sales of lands adjoining old service stations. Based upon the decision of the Land Appeal Court in Caltex Oil (Australia) Pty Ltd v. Chief Executive, Department of Lands (1996-97) 16 QLCR 435, he concluded a reduction of 30% to allow for any risks to the subject land. Mr McKinnon does not have the long association of the area of Mr Baxter, but he was aware of the history of the site, and the investigations and remediation works of the Council, and their safety checks. Mr McKinnon agreed that the history would have an effect upon the value of the land, and applied a correction factor accordingly. However Mr McKinnon notes that if the depth of fill was less than as stated in the memorandum, then he would further reconsider his valuation in the light of further evidence, perhaps down by 50% instead of 30% allowed. However Mr Paterson argues that the documented memorandum should be given greater weight than the personal memory of Mr Baxter, no matter how long his memory extends back over time. (2) Impact of Traffic – Mr Baxter argues that the subject land is also impacted by the regular, often at night, movement of vehicles, particularly large trucks along Rees Street. He notes that certain very large trucks approaching the nearby industrial area in Bishop Street from the City, tend to -- 4 of 14 -- 5 detour via Herston Road, Picot Street and Rees Street, in order to avoid a difficult and dangerous corner from Kelvin Grove Road into Bishop Street. Both parties concede that the majority of vehicles enter into the industrial area via Bishop Street, but Mr Baxter contends that existing traffic in Rees Street is a hazard. He also argues that it is further accentuated by congestion with pedestrians and cyclists using Rees Street to approach a pathway along the Enoggera Creek flats towards the north-east of the subject land. Mr Baxter draws support for the increasing problem from trucks in Rees Street, by the action of Council to widen the bitumen pavement in Rees Street. However the Council has been unable to dissuade the truck drivers from using Rees Street, as they are legally entitled to do so. Mr Baxter also notes that trucks and cars to major buildings in Bishop Street, which are owned by the University and Australia Post, both have regular and extended periods where traffic and noise cause problems in Rees Street. The trucks pass across private property at the dead end of Rees Street, in order to gain access to the rear of the industrial lands fronting Bishop Street. The University movements tend to coincide with examination periods, but the Australia Post deliveries occur six days a week, every week, usually throughout the night. Unloading of the large trucks occurs outside the buildings, and is undertaken by forklifts which create noise intrusion. There is also a cluster of modern industrial buildings further to the east in Bishop Street, which generate traffic. That site is also a Registered Contaminated Site, being an old rubber and tannery site. However that site is separated from the subject land by a park area, and Mr Baxter agrees that the impact of proximity to that contaminated area is not a major concern. Mr Baxter disagrees with Mr McKinnon’s understanding that the majority of trucks to the University building approach that site from Bishop Street. He notes that at certain busy times there can be a truck passing down Rees Street to the University building every 5 minutes, often every month. Mr McKinnon also notices that there is a boom gate at the end of Rees Street, limiting access to the private property, although no evidence was given as to whether the boom was closed to prevent access. Mr McKinnon agrees that noise from traffic is a problem in Rees Street, and he has sought to allow for it by seeking comparable sales also subject to noise impacts. (3) Impact of Odours – Mr Baxter argues that the subject land is constantly impacted by unpleasant odours emanating from a major “fermentation” area about 100 metres to the rear of the land. The prevailing winds blow the odours across the subject land, and would appear to occur as a -- 5 of 14 -- 6 result of decaying organic material and some possible leaking of sewerage into the major stormwater system, which discharges through two large (1.8 metre round concrete pipes) into the fermentation area. The stormwater pipes collect runoff water from a major catchment area, and discharge into Enoggera Creek. It is agreed that the odours are experienced and complained about by many residents in the area. The houses in Rees Street, including the subject land, are nearest to the point of discharge, and therefore nearest to the source of the odours. The prevailing winds tend to blow towards the subject land for up to 20 hours per day. Mr McKinnon does not contest the impact of odours, but claims his sales also are similarly affected, although perhaps not to the same extent as for the subject land. (4) Changes in the Valuations – Another matter of concern for the appellant is the inconsistency in changes to the valuation. Mr Baxter for example notes that properties in the Kelvin Grove area were increased by about 20%, while properties in the adjoining Spring Hill area, were not increased at all. He quotes examples of such inconsistency in reports in the newspaper demonstrating such fluctuations in increases in value. Mr Baxter argues that such inconsistencies demonstrate, in his opinion, some lack of rigour in the methods adopted by the respondent. However Mr Baxter offers no evidence to support his conclusions, and simply argues that such variations give him little confidence in the reasonableness of the outcomes. Mr McKinnon countered such criticism by noting that each suburban area is treated independently, and each is assessed by comparisons to sales of vacant or lightly improved properties, where they are available. Mr Baxter also notes that his property has been subject to burglaries, although he draws no conclusion from those facts. (5) Comparison of Sales – Mr Baxter provides no evidence of sales to support his estimate of the valuation. Mr McKinnon supplies the following sales of vacant land, each zoned “Residential A” as representative of a wider range of sales considered:  Sale 1 – (Dunsmore Street, Kelvin Grove – Lot 29 on RP 912559) This is a 405 square metre site located about 200 metres east of the subject. The sale is in a narrow street, has views to the west, but is near to the Ballymore Park playing field, which generates considerable noise when games are in place. There is an easement along the western boundary to allow for an encroachment by an adjoining -- 6 of 14 -- 7 dwelling. The sale is seen as superior to the subject due to the subject’s nearness to the industrial site at Picot Street, and the contaminated listed Picot Park. The sale sold in April 1997 for $99,100, which after allowing for improvements was analysed at $98,100, and applied at $94,000.  Sale 2 – (Bally Street, Kelvin Grove – Lot 2 on RP 896572) This is a 368 square metre site located about 300 metres east of the subject, and close by the Ballymore Park playing fields. The sale is seen as superior to the subject due to the subject’s nearness to the industrial site, and the contaminated listed Picot Park. The sale sold in September 1996 for $110,000, which after allowing for improvements was analysed at $109,000, and applied at $99,000. (6) Subsequent Evidence – Following the hearing on 15 April 1999, the appellant sought application to tender further evidence in order to clarify Mr Baxter’s contention about the level of filling placed upon Picot Park. The respondent resisted a reopening of the case in order to examine the impact of that further evidence submitted. The appellant argued that no grave injustice to the appellant would arise if the evidence was not admitted, and the appellant has not provided an adequate reason as to why the evidence was not supplied at the hearing on 15 April 1999. In seeking directions from the Court in respect of whether the Court should consider to reopen the matter, I turn to s.44(13)(a) of the Land Act 1962 which states: “(13) (a) The Land Appeal Court may admit further evidence only if – (i) it is satisfied that admission of the evidence is necessary to avoid grave injustice and there is adequate reason that the evidence was not previously given; or (ii) the appellant and respondent agree to its admission.” While those directions are provided to the Land Appeal Court, they also have application to this Court. I also note that in deciding whether to reopen the matter to accept further evidence this Court must exercise judicial discretion, applying principles of fairness and reasonableness. (Builders Licensing Board v. Sperway Constructions (Syd) Pty Ltd (1975-76) 135 CLR 616, at 625 to 629). Having considered the nature of the additional evidence now sought to be introduced, and the conduct of the case so far pursued, and the resistance by the respondent, I see no reason to reopen the matter further. -- 7 of 14 -- 8 Decision: (1) Changes in the Valuation – I turn first to the matter of the percentage change in the valuation, and the appellant’s conclusion that apparent inconsistencies in percentage changes across various suburbs may indicate that an error may have occurred. While I am aware that such percentage rises in values are often of concern to appellants seeking to have confidence that their personal property has been fairly treated in any valuation, they in fact do not prove conclusively that any error has been made in the valuation process. Such rises may, at best, be an indicator to owners that they should further investigate the valuation but there may be many reasons why a valuation has changed at what would appear to be a rate out of line with some overall statistical percentage. This matter has been considered many times by the Court, and I note from precedents that a large increase in itself is not evidence of some error in the valuation. I note, for example, in the decision of NR and PG Tow v. The Valuer-General (1978) 5 QLCR 378, where the Land Appeal Court said at page 381: “It follows that a large increase over and above the previous valuation is in itself not a relevant issue provided bona fide sales of comparable parcels support the new valuation.” That matter was also considered in CH and BD Henricks v. Valuer-General (1983) 9 QLCR 59, where in the Full Court of Queensland, Macrossan J (CJ) said at page 63: “ The appellants also relied upon a schedule, exhibit 4 in the Land Appeal Court, which showed percentage increases in the value applied by the Valuer-General to a number of selected parcels of land from the date of the preceding valuation up to the March 1979 valuation date. The percentage increase shown in the selected cases was in each instance considerably less than the increase applied to the subject land as between the two valuation dates. The weakness in such a selective comparison is obvious as there could be any number of reasons why blocks in the same valuation area should increase at different rates over a period of five years.” As the Full Court of Queensland said, there could be many reasons why parcels of land can increase at different percentage rates over a period of time. The real test is not the percentage increase in the unimproved values, but a comparison of the subject with sales of comparable sites in the vicinity of the subject at the time of the valuation. In the matter of Mr Baxter’s concern with the rigour of the methods adopted by the Chief Executive in undertaking the valuations, I am drawn to the findings of the Land Appeal Court in BG and AK Wilson v. Chief Executive, Department of Lands (1994-95) 15 QLCR -- 8 of 14 -- 9 63. In that matter the actual computerised process of the Chief Executive was considered, and the Land Appeal Court found at p.71: “ In the context of an annual valuation, the process involves the activity described previously including the ‘charts’ and the collation of that material from the charts by the computer processors through to the public display of the printouts containing the respective valuations and relevant dates. The process in our opinion does not offend the statute.” That matter was also examined in ML and ME Tighe v. Chief Executive, Department of Natural Resources (AV97-402), 2 October 1998, to be reported. In the end it is the responsibility of the appellant to demonstrate that the respondent has made a serious error of fact, or acted upon a wrong practice. (See Brisbane City Council v. The Valuer-General (1977-78) 140 CLR 41, at 56.) (2) Comparison of Sales – The only sales evidence provided was by Mr McKinnon, who draws comparisons with two sales of vacant lands in the area, both of which were seen as superior to the subject land. I note that in drawing comparisons with those sales Mr McKinnon has sought to compare them on the basis of the unimproved values applied to each sale as follows: Sale 1 - $ 94,000 Sale 2 - $ 99,000 The comparisons make allowance in the value of the subject land for its closer proximity to the industrial area in Bishop Street, and its possible impact upon the adjoining Picot Park, which is a Listed Contamination Site. In seeking comparisons with sales of vacant, or near vacant lands, Mr McKinnon has used the method generally preferred by the courts when determining unimproved value. I note for instance in WM and TJ Fischer v. The Valuer-General (1983) 9 QLCR 44, where the Land Appeal Court said at page 46: “It is indeed a fundamental principle of valuation that the best basis for assessment of unimproved value is the use of sales of vacant or lightly improved parcels.” The principle was also clearly defined by the Land Appeal Court in PH Clough v. The Valuer-General (1981-82) 8 QLCR 70, at 76: “It has been judicially laid down many times and in many jurisdictions that in ascertaining unimproved value, sales of unimproved land of comparable quality, situation, etc., to the subject parcel, if they are available, are to be preferred as the best guide for arriving at unimproved value. The reason is -- 9 of 14 -- 10 obvious. In applying such sales there is no room for error in analyzing the value of improvements. Because there is less room for difference of opinion as to value of the various items of improvement and comparison is thus simpler, it has been held that highly improved sales should be avoided in preference to sales comprising a lesser degree of improvement.” On the above comparisons I see little reason to discredit Mr McKinnon’s estimate of the unimproved value, and certainly Mr Baxter has not supplied alternative sales evidence that might influence further amendment. (3) Impact of Odours – It is accepted by Mr McKinnon that the area surrounding the subject land is impacted by unpleasant odours, generally concluded to emanate from the fermentation of organic materials located to the rear of the subject land. Mr McKinnon also notes that his sales provided would also experience similar odours, although, he concedes, perhaps not as intense or frequent. It was also accepted that the general prevailing breezes in that local micro climate would tend to push those odours across the subject land. There was no evidence provided which demonstrated a causal relationship between nearness to the source of the odours, and their intensity and frequency. However the normal physical laws of nature would suggest that odours are likely to move in a manner of some analogy to other physical phenomena such as noise or light. As such it would not be an unreasonable conclusion to make that the subject land, being nearest to the source of the odours, would also be the most impacted. On that basis I believe Mr McKinnon may have not allowed sufficiently in his comparison of sales for that impact. (4) Impact of Traffic – In the matter of the impact of heavy traffic along Rees Street, I accept Mr Baxter’s evidence that Rees Street has become, in some cases, a defacto entrance to the industrial area, rather than by Bishop Street. The fact that the Council has sought to upgrade, reseal and widen Rees Street would support such a conclusion. While Mr McKinnon notes that access from the “dead end” of Rees Street to the industrial area is across private land, which may be closed off at any time by an existing boom gate, he has not advised whether in fact that boom gate is ever closed. The inference from the evidence is that trucks pass along Rees Street day and night, and at regular and frequent intervals. -- 10 of 14 -- 11 The impact of worsenment as a result of traffic noise and the operations of quarrying upon the subject was also examined by the Land Appeal Court in Valuer-General v. AH Raynbird (1980-81) 7 QLCR 106. In the current matter the matter of quarrying has no relevance, but there is an analogy with the impact of traffic noise. In that matter the evidence led by both parties in respect of traffic noise tended to be subjective assessment, and to involve a “degree of arbitrary calculation and personal opinion” (page 110). While the Land Appeal Court made some allowances for the impact of traffic noise in that matter, the lack of any substantive argument by both parties provides little assistance in the current matter. The matter of noise and its injurious affects upon the value of land was also discussed in JR and DM Stubberfield v. Valuer-General (1988-89) 12 QLCR 63. In that matter the Land Appeal Court found that there was no general percentage reduction to be applied in cases involving injurious affection, and each case falls to be considered according to its own particular circumstances (page 64). However the Land Appeal Court noted that the sales and resales introduced by the appellant in that matter were not reliable as a guide to the extent of injurious affection suffered by the land, which was located adjoining a timber yard, and its consequential noise levels. On that principle it is important in the current matter to ensure the level of comparability of impact by noise between the sales of Mr McKinnon and the subject land. Mr McKinnon has visited Rees Street during the day time and made allowance for vehicular movements, and associated activities, in his valuation. On the evidence supplied I would tend to accept Mr Baxter’s advice that the impact of the trucks, and associated noises, may be greater than originally allowed for by Mr McKinnon. (5) Impact of Contamination – Perhaps the issue of major concern is the possible risk to the value of the land by the public perception that the adjoining Picot Park may constitute some level of public health risk. Certainly the widely distributed newspaper and television coverage of statements by another resident in Rees Street would have raised public awareness of the area. Before examining this issue it is noted that there is no suggestion of any contamination upon the subject land. In his evidence Mr Baxter was forthright and unwavering in his opinion, gathered from a very long and personal experience with the former dumping of fibro materials upon the Picot Park area, that the evidence supplied to the Council Environment Officer was partially incomplete. His contention that a depth of 1 metre of fill could not have been placed on the higher area of Picot Park (to the rear of the subject land) would appear to be -- 11 of 14 -- 12 supported by the contour evidence of the Council map. There is no evidence to discredit Mr Baxter’s recollection that dumping occurred regularly up to 30 metres away from the creek banks. He is also adamant that the top of the hill area of the park was only filled by sand in 1995 to a depth of approximately 0.1 metres. However the major concern of Mr Baxter lies with the impact of public perception upon the value of the land, rather than with any real danger from contamination. Mr McKinnon agrees that public perception of the area would tend to have an impact upon the value of the land, and he has sought to provide a reduction in the valuation (30%) for that purpose. Mr McKinnon, after considering Mr Baxter’s verbal evidence, notes that if the evidence from the formal Council memorandum proved to be incorrect, then he might have to reconsider his reduction because of contamination impacts, perhaps to 50%. In respect of the public perception about the risk of asbestos dust causing fatal respiratory problems, there is a wide recognition of the links between old fibro cement sheeting and asbestos pollution. Many old buildings have been, and are currently being refurbished, at considerable cost in order to remove the offending material. The listing on the Register of Contaminated Sites demonstrates the level of public feeling. Mr McKinnon has recognised such a link and has sought to allow for it in his valuation. A similar matter of public perception, and its impact upon the value of land, was discussed in the matter of Dr JW and AC Cox v. Chief Executive, Department of Natural Resources (AV97-166), 11 February 1998, unreported. That matter dealt with the possible impact of radiation from a transmitting tower upon the unimproved value of a parcel of land at Toowoomba. In that matter the appellant, a leading medical expert and former research scientist, successfully argued that public debate surrounding the issue of radiation would impact a perception in the minds of people considering the purchasing of the subject and therefore its value. Dr Cox had extensive experience in dealing with the often ungrounded fears of people about health risks, but noted that when dealing with emotions, while such fears may be irrational, they are nevertheless very real to the people involved. In that matter the learned Member noted that valuation is really interpreting the marketplace, with all its vagaries. He accepted that transmission radiation is just one of those factors which influence a purchase of land. In the current matter the impact of possible asbestos dust would appear analogous to the Cox matter. The extent to which any risk or probability of impact could be allowed for was also examined in the matter of Caltex Oil (Australia) Pty Ltd v. Chief Executive, Department of -- 12 of 14 -- 13 Lands (supra). In that matter any possible worsenment or detriment was examined, noting particularly the need for any rehabilitation costs (page 462). The Land Appeal Court went on to say at page 463: “We accept that prudent vendors and purchasers of land will ‘inevitably and necessarily’ examine the impact of statutory controls on land use before deciding what a particular block of land is worth in the market place, and that the effects (if any) of a particular control is a question of fact. The effect of the classification on value is a matter to be determined on a case by case basis.” In seeking to apply that principle Mr McKinnon has sought evidence from sales of sites adjoining old service stations, and has concluded a conservative estimate of a 30% reduction in the valuation for that purpose. Mr Paterson notes that conclusion was based upon the facts that the subject land was itself not contaminated, but it adjoins land that was at one time contaminated, and continues on the Contaminated Register. Mr Paterson further argues that such a conclusion makes appropriate allowance for any risk of contamination, any probability of contamination, and the extent to which that might influence a prudent purchaser. However it remains a matter for conjecture whether there is any direct analogy between possible risks from contamination from materials extant on an old service station, and risks associated with damage to lung tissue from asbestos dust. While it is not a matter for conjecture by this Court, the weight of evidence suggests that the latter may have a higher public profile. Finally, in examining the evidence about the possible risk of contamination on Picot Park, I note that Mr McKinnon has quite correctly sought to rely upon the formal documents supplied by Council. Indeed it would be remiss of him to do otherwise. There is clearly no doubt in the minds of the Council administration that suitable remediation has occurred, and Picot Park is now safe for public use. However the evidence of Mr Baxter, and his credibility as a well-informed local resident of that area was not shaken by cross-examination. Even in the light of the statement from the Council, he continues to argue that the Council has not been fully informed of all of the facts of Picot Park, and that there is less fill on the top areas than was understood to have occurred. In the end, in the absence of any definitive bore samples of test holes on the top area of Picot Park, the weight to be applied to any uncertainty arising from the evidence, falls to -- 13 of 14 -- 14 the exercise of discretion by this Court. In such matters I am reminded of the decision of the High Court of Australia in Commissioner of Succession Duties (SA) v. Executor Trustee and Agency Company of South Australia Limited and Others (1946-47) 74 CLR 358, where Dixon J said at page 373: “I have had the advantage of reading the judgment prepared by Williams J and agree in it. I should like, however, to add for myself that there is some difference of purpose in valuing property for revenue cases and in compensation cases. In the second the purpose is to ensure that the person to be compensated is given a full money equivalent of his loss, while in the first it is to ascertain what money value is plainly contained in the asset so as to afford a proper measure of liability to tax. While this difference cannot change the test of value, it is not without effect upon a court’s attitude in the application of the test. In the case of compensation doubts are resolved in favour of a more liberal estimate, in a revenue case, of a more conservative estimate.” In the light of that direction I will allow a reduction of 50% for the possible risk in the mind of a prudent purchaser in acquiring the land. That would not be inconsistent with Mr McKinnon’s comment that, subject to confirmation of Mr Baxter’s claims about the depth of filling, then he could consider a 50% reduction. Summary: The sales of Mr McKinnon support an unimproved value less than $94,000. Had there been no impact upon the subject of possible contamination on Picot Park, then Mr McKinnon suggests he would have valued the subject land at $100,000. However, that would appear to involve a conservative estimate for the impact of heavy truck movements in Rees Street, and perhaps a conservative estimate of the impact of odours at the subject. I therefore believe that a 50% reduction from the $100,000, or $50,000, would represent a fair compromise of the unimproved value of the subject land. Conclusion: Having considered the whole of the evidence I am persuaded that the appellant has partly proved her case. The valuation of the Chief Executive is set aside, and the unimproved value of Lot 46 on RP 76784 is determined at Fifty thousand dollars ($50,000). Member of the Land Court -- 14 of 14 --