Ballow Chambers Ltd v The Valuer-General [1993] QLAC 42 (1993) 14 QLCR 422

LAND An appeal from a decision of the Land Court Re: Determination of the Valuer-General of the APPEAL COURT BRISBANE unimproved value of land described as L2/RP50898 and L3/RP50899, Parish of North Brisbane, with an area of 1272m 2 , situated at 121 Wickham Terrace, Spring Hill, Brisbane. (AV92-115) JUDGMENT Delivered the .Fourth. day of .June. 1993 This is an appeal against the decision of the Land Court given on 18th December 1992, dismissing an appeal by Ballow Chambers Ltd against the Valuer-General's valuation of the unimproved value of land at 121 Wickham Terrace, Spring Hill in the City of Brisbane, in the sum of $1,400,000. The subject land has an area of 1 272m2 , and upon it is situated improvements known as "Ba.llow Chambers". The improvements comprise a building of several storeys and appurtenances. On 11th March 1990, the Heritage Buildin g s Protection Act 1990 came into effect. mean: Under s. 3 of that Act, "Heritage Building" is defined to "Any thing listed in the schedule and includes - a) Where the thing is a building any part of the building and any fence · or other appurtenance to the building; [1993] QLAC 42 -- 1 of 32 -- b) Where the thing is a place - i) any building or structure erected on or removed to the place any part of the building or structure and any fence or other appurtenance to the building or structure, and ii) any natural feature within the boundaries of the place." Reference to the schedule to the Act shows a large number of "things" listed among which is: "Ballow Chambers 121 Wickham Terrace Brisbane." Under s. 8 of the Act, it is provided: "8. Herita g e Certificates 1 ) Subject to section 6 an owner of a heritage building who intends to demolish develop or subdivide that building must apply in writing to the presiding officer of the committee for a Heritage Certificate authorising that demolition development or subdivision. 2) 2) The committee within thirty days of lodgment of an application for a Heritage Certificate or within such further period {not exceeding thirty days from the expiration of the first mentioned thirty days) as the Minister allows must issue a Certificate to the applicant - 4) a) conditionally approving the applications; b) approving the application subject to such conditions as the committee considers appropriate; or c) refusing the application Where the Minister makes a decision under section 9 (4) {c) (ii) or (iii) he must issue a Certificate to the applicant accordingly and forward it together with his decision ... -- 2 of 32 -- 3 Section 9 of the Act provides: "9. Review and Appeal 1 An applicant dissatisfied with the decision of the 2) committee under section 8{3) (b) or (c) within thirty days of the committee's decision may apply to the presiding officer of the committee for a review of the decision to be made by the committee. 2) An applicant dissatisfied with the decision of the committee under subsection (2) within thirty days of the committee's decision may appeal to the Minister against the decision. 4) a) the Minister within thirty days of receiving the appeal must consider the appeal and forward a decision thereon to the applicant. 5) b) in considering take into material as committee. the appeal the consideration was placed Minister may only such before the c) the Minister may - i) confirm the committee's decision unconditionally; ii) confirm the committee's decision subject to such conditions as the Minister considers appropriate; or iii) revoke the committee's decision and unconditionally approve the application made under section 8(1) or approve the application subject to such conditions as the Minister considers appropriate. The Minister's decision is final. 5) Proceedings before the committee under section 8 and this section and the Minister on appeal are -- 3 of 32 -- 4 to be informal and simple and not subject to rules of evidence." Section 11 of the Act provides: "11. Offence to demolish etc. Subject to section 6 any person who demolishes develops or subdivides any heritage building otherwise than pursuant to and accordance with a Heritage Certificate commits an offence against the Act. Under s. 15, offences against the Act are to be prosecuted upon indictment before a District Court. Section 17 of the Act provides: "17. Restoration Order 1) Where a person is convicted of an offence against this Act the Minister in addition to any penalty imposed in relation to that offence may make a restoration order against that person. 2) A restoration order may require the person against whom it is made to undertake or carry out at that person's expense such repairs work or restoration to the heritage building as may be specified in the order to the satisfaction of the Minister. 3) 3 ) Where a person against whom a restoration order has been made fails to comply with that restoration order to the satisfaction of the Minister the Minister may cause such action to be taken as the Minister considers appropriate to ensure compliance with the restoration order ... 4 ) We observe that whether or not the land upon which a heritage building is erected is listed under the Act, if the building is demolished the Minister is empowered to make orders dealing with the use which must then be made of the land - i.e. for the purpose of restoring the demolished building. -- 4 of 32 -- 5 Section 18 of the Act provides: "18. Non-dealing Orders 1) The Minister may at any time make a non-dealing order (in the form published in the Gazette for the purpose of this section) in relation to a heritage building. 2) A non-dealing order may require that no dealing or only such dealing as may be specified in the order may occur in respect of the heritage building for such period not exceeding ten years as is specified in the non-dealing order. 3) When the Minister may revoke the order or vary the terms of the order. 4) Where a non-dealing order or a revocation of variation thereof is made the Minister must - a) lodge a copy of the order revocation or b) variation with the Registrar of Registrar of Dealings or other required by law to register or dealings with land (together request in a form acceptable Registrar or other person) and cause notification of the making order revocation or variation published in the Gazette and thereof to be served by post owner of the heritage building. Titles person record with a to the of the to be a copy on the 5) Upon receipt of a copy of an order revocation or variation (together with a request) made under this section the Registrar of Titles, Registrar of Dealings or other person required by law to register or record dealings with land must register or record (without the payment of any fee) particulars of the order revocation or variation in the register in quest;ion and do so notwithstanding any other act to the contrary or that any relevant document of title is not produced. 6) On and from a registration or recording in accordance with the subsection (5) of any order or variation all dealings with the land the subject of the order are subject to the terms of the order or the terms of the order as varied for the period of that order (or as varied) and no right or interest may be created in relation to -- 5 of 32 -- that land for that period contrary to that order or variat i on." Section 20 of the Act provides: "20. Right of Inspection 1 ) Where the Minister considers that it is necessary for the purpose of this Act that any heritage building should be inspected he may in writing authorise any person to enter and inspect the building at any reasonable time. 2) Any authorisation under subsection (1) upon its production to the person in charge of the heritage building is sufficient authority for the person named in the authorit y together with such assistance as the authorised person considers necessary at any reasonable time to enter and inspect the heritage building." Under s. 19 of the Act it is provided that no action may be brought against the Crown, the Minister, Local Authority or any other person which results from or arises out of the listing of a "thing" in the schedule to the Heritage Buildin g s Protection Act 1990 or any decision or action taken in good faith pursuant to that Act . Pursuant to s. 11 of the Valuation of Land Act 1944-1980, the Valuer-General valued the appellant's land in the sum of c c f 3 f 1 I y c ? n z $1 / 400, 000 The appellant appealed against that valuation contending for a valuation of $450,000. In dismissing the appeal, the Land Court accepted the argument of the Valuer-General to the effect that any constraint imposed upon the appellant's improved land in Wickham Terrace, which resulted from "Ballow Chambers" being listed in the schedule to the Heritage Buildings Protection Act 1990 as a -- 6 of 32 -- 7 heritage building, was imposed upon only the building improvements on the land and not upon the land itself. Under s. 12 of th e Valuation of Land Act 1944-1980, it is provided: "12. Unimproved Value 1) For the purpose of this Act 'unimproved value' of land means - a) in relation to unimproved 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; and 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 requ ired to be ascertained for the purpose of this Act the improvements did not exist; Provided that the unimproved value shall in no case be less than the sum that would be obtained by deducting the value of the improvements from the improved value at the time as at which the value is required to be ascertained for the purposes of this Act; Provided further that the restrictions and limitations in any Deed of Grant or Certificate of Title in respect of any racecourse shall be disregarded in ascertaining the unimproved value of the land of the race course concerned. lA) 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 -- 7 of 32 -- 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 in determining that value to any other purpose the land may be used on the assumption improvements referred to in subsection (1) section had not been made." being had for which that any of this It is the contention of the Valuer-General which was successful in the Land Court that the effect of s. 12 (1) (b) of the Valuation of Land Act 1944-1 980 having regard to the listing of "Ballow Chambers" as a heritage building is that the unimproved value of the land upon which "Ballow Chambers" stands is to be assessed on the basis that the improvements on that land do not exist. Consequently so it is said, the constraint imposed upon the owner of "Ballow Chambers", which would have a very significant effect on the value of the subject land if it were to be marketed with its improvements for redevelopment, is to be ignored and its unimproved value arrived at by methods appropriate to the valuation of the land not merely assuming the absence of its present improvements but assuming also that such improvements ha ve never been erected on that land. This involves consideration of the potential for development of the bare land on which "Ballow Chambers" stands for its highest and best use. · This highest and best use would not be affected by the listing of "Ballow Chambers" as a heritage building because that constraint applies not directly to the land but only to the buildings on the land. -- 8 of 32 -- It is pointed out that the definition of "heritage building" includes any "thing" listed where that "thing" is a building, and an y "thing" listed where that "thing" is a pla ce . It is contented that the application of the provisions of the Heri t age Buil d ings Protection Ac t 19 90 a nd the Valuation o f Land Ac t 1944-1980 will hav e a signifi c antly differen t e ffect for rating purposes depending upon whether the "thing" listed in the schedule i s a pla c e { i.e. land ) or whether the "thing" list e d in the s c hedule is a building on that land. We pause t o observe that the definition on its face makes no mention of land in its consideration of the "thi n gs" comprising buildings and pla ce s listed in the sch e dule and what is expressly included in the things so listed. There is nothing in the Ac t suggestin g that wher e a thing listed is a building, the listing does n ot also include th e land upon which it is erected - at least that land underneath the perimeters of the building. Indeed trad i tionally the building would be regarded as part of t he land upon which it stood and having no separ a t e existen c e. If the c o ntention of the Valuer-General, which succeeded in the Land Court, is correct, one consequence will be that for rating purposes and land tax purposes, the land upon which "Ballow Chambers" is constructed will be valued on the basis that its highest and best use is n ot to maintain the existing improve ments but, on the contrary , to demolish them so that the land unimproved, when they are demolished, can then be redeveloped for commercial purposes . It is agreed that on this approach the unimproved value of the land is $1,400,000. -- 9 of 32 -- 1 0 It is conceded however that if the land (and building, which is part of the land) is offered for sale, the maximum sum that the owners could hope to obtain in the market place would be $450,000 because although a purchaser might be prepared to pay $1,400,000 for the land with a potential to be developed for its highest and best commercial use, he would not be prepared to pay more than $450, 000 for that land with the potential to be developed only with a building identical with the one which presently stands on it subject to the constraints imposed upon the land and building by virtue of the listing under the Herita ge Buildings Protection Act 1990. It was conceded for the Valuer-General in the course of argument that it is not likely that the owner of the subject improved land would succeed in obtaining a demolition order under s. 8 of the Act. We think it reasonable to infer from that concession that if an owner sought to "demolish develop or subdivide" "Ballow Chambers" without a Heritage Certificate under s. 8 of the Act, that owner would in addition to the imposition of a criminal sanction be likely to have a restoration order made requiring the restoration of the building, or its repair at the owner's expense, to the satisfaction of the Minister. It is undeniable in our view that the listing of "Ballow Chambers" as a heritage building, has in fact greatly reduced the market value of the improved land, the subject of this appeal. The heritage building listing of "Ballow Chambers" imposes upon the subject land a burden or restriction not dissimilar in nature from that imposed by a restrictive covenant which prevents the -- 10 of 32 -- owner of the land affected from doing some of the things which he might otherwise have been able lawfully to do with or upon his land. Just as a statutory easement taken over property for the purpose of public utilities - such as power, etc. - will sometimes reduce the value o f the land affected because the existence of the statutory easement will or may limit the potential of the land, so it seems to us the imposition of the statutory constraints upon the owner of a "heritage building" will sometimes, al though not necessarily always, reduce the v alue of the land sh o uld the listing reduce the potential which would otherwise exist for a development of the land for its highest and best commercial use. We keep in mind that valuations are made under the Valuation of Land Act 1944-1 980 essentially for the purpose of the calculation of rates and taxes payable by the owners of the land valued. We cannot believe that it was the intention of the Legislature when enacting the Heritage Buildin g s Protection Act 1990 that the intended constraint imposed upon the redevelopment of a heritage building, which would often (as in the present case) reduce significantly the market value o f that building, which can only be transferred with the land upon which it stands, should be ignored when arriving at the unimproved value of the land for the purpose of the Valuation of Land Act 1944-1 980 with the result that its rateable value is determined on the basis that it has a market value which it clearly does not have as a consequence of its listing under the Act. -- 11 of 32 -- 12 This Court rejected a similar contention in Valuer-General v. Queensland Club (1991) 13 Q.L.C.R. 207 at pp. 217-219. While no doubt the nature and effect of the legislative constraints in that case differ from those in the present case, we find assistance in the statements of principle in the Queensland Club case at pp. 220- 221. Upon the construction of the Herita g e Buildings Protection Act 199 0 for which the Valuer-General contends, s. 12(1) (b) of the Valuation of Land Act 1944-1980 requires that he value the appellant's land at 121 Wickham Terrace Spring Hill, as if the improvements on it do not exist, in spite of the fact that not merely do they exist but impose very significant legal constraints upon the owner redeveloping the land by demolishing those improvements or otherwise "developing" it within the meaning of that term as defined ins. 3 of the Act. Stated shortly, the heritage listing of "Ballow Chambers" prevents the owner from removing or "developing" the improvements without obtaining a Certificate which it is conceded could probably not be obtained. On that basis the value of the improved land, less the value of the improvements, is $450,000. Another way of expressing the same concession is that the unimproved value of the land, at the relevant date, with a potential only to be developed as it was when its existing improvements were heritage listed, is $450,000. However, the Valuer-General values the appellant's land on the basis that at the relevant date the land could be redeveloped for commercial purposes with that redevelopment necessarily involving a -- 12 of 32 -- 13 demolition of "Ballow Chambers" on the basis that it is the building alone to which the heritage building listing applies. Critical to the contentions of the Valuer-General is the assumption that the effect of the interpretation of "heritage building" ins, 3 of the Act, is to distinguish between "a building" with its appurtenances and "a place" which is said to encompass the land upon which a building may be erected. It seems to us that that approach is erroneous. At law it would not be possible to trans fer title to the "Ballow Chambers" improvements for use or enjoyment as they stand without transferring the land upon which those improvements are erected- Indeed where an improvement erected on land is a building, it is not possible to "subdivide" that building so that part only of it may be trans fer red or dealt with without complying with the laws relating to the registration of Strata Titles etc., with the Registrar of Titles. It is unnecessary to analyse in detail the statutory requirements which must be satisfied before part only of "Ballow Chambers" could lawfully be solcj.. It suffices to say that if the owner of "Ballow Chambers" desired to transfer ownership of part only of that building separately from the balance of it, that could be done lawfully only by complying with the many requirements of the law relating to registration of Strata Title with respect to the area to be transferred and any balance area or areas. Indeed the content of the definition of "subdivide" ins. 3 of the Act clearly contemplates the owner of a heritage building comprising building improvements desiring to obtain a Certificate of Title -- 13 of 32 -- 14 from the Registrar of Titles for the disposition of part only of it. Even if one assumes that for the purpose of the Act one can treat a building as having an existence apart from and independent of the land upon which it stands, in our view the terms of ss. 8, 10 and 11 of the Act clearly impose a constraint on the owner of a heritage listed building, in addition to any others which might exist, from selling part of that building. It must be kept in mind that the whole Strata Title system, in force in Queensland, contemplates each owner of part of a building erected on land having also an interest in the land upon which the building is erected, which is defined as part of the common property normally owned by each of the Strata Title owners rateably in accordance with the areas of the building accorded separate Strata Titles. When we turn to s. 18 of the Heritage Buildings Protection Act 1990, it is clear that the Minister may make what is described there as a non-dealing order in relation to a heritage building. He is also empowered to revoke or vary such a non-dealing order. Under s. 18 ( 4), when a non-dealing order or a revocation or variation of a non-dealing order is made, the Minister must lodge a copy of that order or revocation or variation of it, with the Registrar of Titles or the Registrar of Dealings required by law to register or record dealings with land. He must also cause such an order, revocation or variation to be published in the "Gazette". Under s. 18 (5), the Registrar of Titles or the Registrar of Dealings or other person required by law "to register or record dealings with land", must register -- 14 of 32 -- 15 or record particulars of that order, revocation or variation in the Register in question, and "do so notwithstanding any other act to the contrary or that any relevant document of Title is not produced". Under s. 18(6), from the time the order or variation thereof is registered in accord withs. 18(5): "All dealings with the land the subject of the order are subject to the terms of the order and no right or interest may be created in relation to that land for that period contrary to that order or variation". It seems clear then from the terms of the Heritage Buildings Protection Act 1990 that if the owner of a multi-floored heritage building proposes to dispose of part of the building under circumstances in wh i ch that end can be achieved by complying with the requisite steps to procure the issue of Strata Title Certificates of Title for that part and the balance of the building and for the resulting common property, that owner would be compelled to give notice ~f that proposal to the committee which may refuse the permission under subs . 8(3) (c). Such an owner seeking to subdivide part of the building must give the Local Authority a Heritage Certificate obtained under s. 8(3)(a) or (b), or the Local Authority is obliged to lodge a copy of the application presented to it with the Heritage Buildings Protection Act 1 990 committee . It .is clear that the Local Aut hority may not approve an application to subdivide unless the Heritage Certificate (presumably given under s. 8(3) (a) or (b) ) is produced t o it. Under s. 18 of,the Act, it is open to the Minister to make a non-dealing order which has the effect of preventing any -- 15 of 32 -- 1 6 dealing "in relation to a heritage building" for a period of up to 10 years. It is instructive to note that it is in the Register of Titles that such a non-dealing order is registered, and the consequence of the registration under s. 18 ( 6) of the Act is that "no right or interest may be created in relation to that land for that period contrary to that order or variation". In our view the provisions of ss, 8, 10 and 18 of the Heritage Buildings Protection Act 1990 are inconsistent with the basis upon which the Valuer-General relies. It is quite clear that once the heritage listing was given to "Ballow Chambers", the Minister was then empowered at any time to make a non-dealing order in relation to "Ballow Chambers" - whether "Ballow Chambers" be regarded as a building separate from the land or, as it would traditionally be regarded, as part of the land. If that were done, the Registrar of Titles would be bound to register particulars of that order in the proper Register for that purpose kept in the Real Property Office. The effect of that registration would be to prevent any right or interest being created "in relation to that land for that period contrary to that order or variation". In determining the unimproved value of the subject land when used for its highest and best use, we find it not particularly helpful to consider in detail cases relating to the effect of various rights and constraints attaching to land which result from the provisions of town planning legislation. In our view the principle stated in Royal Sy dney Golf Club v. Federal -- 16 of 32 -- 17 Commissioner of Taxation ( 1955) 91 C. L. R. 610 does apply in this case, although of course the legislative restrictions considered in that case are different in some respects from the legislative restrictions implicit in heritage building. There the listing of "Ballow Chambers" as a can be little doubt however that the Heritage Buildings Protection Act 1990 gives to the heritage committee and, ultimately to the Minister, statutory powers designed to significantly constrain the rights of owners of land, with or without improvements, with a heritage building listing. That view is in accord with the principle in Royal Sydney Golf Club v. Federal Commissioner of Taxation (supra) and also with the decision of this Court in Valuer-General v. Queensland Club (supra). In the view which we take, the provisions of ss. 8, 10 and 18 of the Heritage Buildings Protection Act 1990 so clearly impose a potential constraint not merely upon the disposition of or dealing with parts of the "Ballow Chambers" building but also upon the land upon which, as an improvement, it forms part, that the assessment of the market value of the land at the relevant date, on the assμmption that the building improvements on that land did not exist, requires the valuer to value the land free of the building improvements but subject to the statutory constraints placed upon that land by virtue of the existence of those improvements. Stated shortly, in analysing the improved parcel of land upon which "Ballow Chambers" is erected for the purpose of determining the unimproved value of that land, a valuer must not -- 17 of 32 -- 18 merely ignore the value of the improvements but must also take into account the legal consequences to the owner of the land under the Herita g e Buildings Protection Act 1 990 by reason of the existence of those improvements. Such a construction of the provisions of the Valuation of Land Act 1944-19$0 and Heritage Buildings Protection Act 1990 avoids the ludicrous (and in our view unjust) consequence of valuing the subject land on the assumption that its owner may sell it for its highest and best use which would be for demolition and redevelopment - when in fact by virtue of the Herita ge Buildings Protection Act 199 0 the owner can do no such thing but, at the best, may only sell it subject to statutory constraints preventing or significantly impeding the demolition of the building and redevelopment of the site. In our judgment the listing of "Ballow Chambers" as a heritage building has placed a very significant impediment in the way of the demolition of that building and the commercial redevelopment of the land upon which it is constructed, and that detriment logically and properly must be reflected in the assessment of the unimproved value of that land. Traditionally buildings erected on land which for convenience are sometimes referred to as improvements as distinct from the land upon which the buildings are erected, have always been regarded as part of the land to which a Certificate of Title relates under the provisions of the Real Property Act. The appurtenances to a building may be regarded as not covering the same part of an allotment of land as is covered by the actual building erected -- 18 of 32 -- 19 on it and upon one approach no more technical than that contended for by the Valuer-General, it might be said that that part of the land with an area of 1272m2 located at 121 Wickham Terrace, Spring Hill, upon which the "Ballow Chambers" building improvements are erected together with the fences and appurtenances to that building, comes within the definition of I "heritage building" withins. 3 of the Heritage Buildings Protection Act 1990. Prima facie we should think that the term "appurtenance" in the context of the heritage legislation where a building or structure is listed as a heritage building would include not merely the building but also the fences, if any, surrounding it together with the land and other little structures situated between the fences and the heritage building constructed on the land. By and large, the appurtenances of a house or other building encompass those things, the enjoyment of which is a natural, if not necessary adjunct to, the enjoyment of the house or building, and which will upon a transfer of a building naturally be transferred with it. One would think that upon the facts of this case, as things presently stand, the transfer of "Ballow Chambers" would involve the transfer not .merely of the land upon which that structure stood, but the other land between the perimeter of the building and the boundaries of the parcel of land shown on the Certificate of Title of the appeal block. Upon the facts of this case, · such land seems to support a driveway and to comprise other small areas. In Methuen-Campbell v. Walters [1979] 1 Q.B. 525, the term -- 19 of 32 -- within the "curtilage" of that building where ''curtilage" is understood to mean "A small court, yard, a piece of ground attached to a dwelling house and forming one enclosure with it". We refer to the discussion of this point by Goff L.J. at p. 535 and p. 538, Roskill L.J. at p. 541 and Buckley L.J. at p. 543 and p. 544. In Clvmo v. Shell-Mex & B.P. Ltd 10 R.R.C. 85, Upjohn L.J. delivering the judgment of the Court of Appeal observed that whether in any particular case land can be said to be appurtenant to a building is a mixed question of law and fact, the answer to which will depend on the circumstances of that case. At p. 93 he adopted what Slesser L.J. said in Trim v . Starminster [1938] 2 K.B. 508 at p. 516: " but no case has been cited to us in which the word appurtenance has ever been extended to include land which does not fall within the curtilage or the yard of the house itself - that is within the parcel of the demise of the house . " If one were to adopt a rather technical approach, it might be said that a listing of "Ballow Chambers" plus its appurtenances, that is the curtilage to that building within the boundaries of the land valued by the Valuer-General which is registered in the office of the Registrar of Titles, involves at least the listing of the building and that part of the land at 121 Wickham Terrace, Spring Hill, Brisbane, between the perimeter of that building and the boundaries of the allotment of land the whole of which, of course, must be valued by the Valuer-General. A construction of the heritage legislation and the Valuation of Land Act 1 944-1 980 which would lead to land between the perimeters of a heritage listed building and the boundaries of -- 20 of 32 -- the appurtenances to or curtilage of that building being constrained by the listing, whilst the land underneath and within the perimeters of the building is not so constrained, is neither attractive nor,necessary in our view. We take the view that from the plain effect of ss. 8, 10 and 18 of the Heritage Buildings Protection Act 1990, the heritage listing of "Ballow Chambers" imposes constraints upon the use and development of the subject land which must be taken into account wheri valuing that land for its highest and best use, even though its improvements must be assumed not to exist at the valuation date. The appeal ._ I land at 30th A is allowed. The unimproved value of the subject / //' 0 1992 is determined at $450 , 000. (Ambrose J) Justice of the Supreme Court (DJ Barry) President of the Land Court (DM White) Member of the Land Court -- 21 of 32 -- IN THE LAND APPEAL COURT OF QUEENSLAND Ballow Chambers Ltd v. The Valuer-General Appellant Res p ondent ORDER AMENDING JUDGMENT IN CERTAIN INCIDENTAL PARTICULARS On the fourth of June, 1993 this Court delivered a judgment in the matter of an appeal by Ballow Chambers Limited against a valuation of the Valuer-General under Valuation Roll No. 805 of land owned by Ballow Chambers Limited and situated at 121 Wickham Terrace, Spring Hill. The parties have brought to our -notice that the judgment could be misleading in referring to the date the valuation of the subject land takes effect, being the date stated in the Notice of Appeal to the Land Court, but having no effect on the substance of the matter which requires that the land be valued at 31st March, 1990. In order to remove any doubts in the matter This Court Doth Order that the words "to have effect on 30th June, 1992" on page 6 and the words "at 30th June, 1992" on page 21 be deleted and the words "as at 31st March, 1990" be inserted in lieu thereof. Dated this fifteenth day of June, 1993. (Ambrose J) Justice of the Supreme Court. ( DJ Ba rry) President of the Land Court . (OM White) Member of the Land Court. -- 22 of 32 -- 30 50 60 1 IN THE LAND APPEAL COURT OF QUEENSLAND BEFORE: His Honour (Mr. Justice Ambrose) The President .(Mr. D.J. Barry) Mr. D. M. White, Member BRISBA NE. 4 JUNE 19 93 . (Copyright in this transcript is vested in the Crown, Copies hereof must NOT be made or sold without the prior written authority of the Registrar of the Land Court. IN THE MATTER OF an appeal to the Land Appeal Court by Ballow Chambers Ltd. from the decision of the Land Court in the matter of an appeal against the determination of the Valuer-General of the unimproved value of the land contained in Valuation Roll No. 805, parish of North Brisbane (AV92-115) . · Ballow Chambers Ltd. v. The Valuer-General Mr . I.B. Walker, Solicitor of Sly & Weigall Cannan & Peterson, for the Appellant. Mr. T.W. Quinn, with him Mr. J. O'Rourke, Director, Legal Services, Department of Lands, for the Respondent. DECISION HIS HONOUR: In this matter the Land Appeal Court comprised the President, Mr. White and me. The Court so constituted allows the appeal. The unimproved value of the subject land at 30 June 1992 is determined at $450,000 and I publish the reasons of the Court. It occurred to us that there may be a question of costs to be considered. MR. WALKER: That is so Your Honour. Is it con~enient perhaps that that be taken after the ------- HIS HONOUR: Yes, well we'll deal with the questions of costs after the reasons are formally delivered, I think. The Land Appeal Court ad.iourned to Chambers. e g Govt. Printer, Old. _2_ Decision -- 23 of 32 -- The Land Appeal Court resumed. HIS HONOUR: Mr. Walker, you have an application for costs, do you? MR. WA LKER: Yes Your Honour. Your Honour and gentlemen, the Land Act gives the Court power to award costs in its discretion, section 45(16), and whilst we would acknowledge that the general principle which the Court follows is that set out in the case of W.H. Bowden and The Valuer-General, essentially that the desirability of access to the Court is such that each party bears in general its own costs, our submission 10 would be that the case in question, Ballow Chambers, was effectively a test case of the provisions of the Heritage Buildings Protection Act and as such the case was being argued by my client not only on its own behalf but on behalf of 700 or so people affected by having a building listed under the schedule to that Act. The Court has previously, in the case of the Queensland Club, the appeal to this Court, taken that basis, that is that the case was effectively a test case, as the basis for finding in favour of an appellant in relation to costs and my submission would be that this case is on all fours with the Queensland Club case and that in the circumstances the discretion of the Court should be exercised in favour of the appellant and costs awarded. Your Honour, gentlemen, I would also submit that in the circumstances certification should be given for two counsel. The substance of the argument were reasonably difficult points of law of some substance and consequence and that the case was an appropriate one for t wo counsel to be engaged. HIS HONOUR: The Queensland Club reference I think is Volume 13 of the Queensland La nd Court Reports at page 207, the decision 28 June 1991. Yes Mr. Quinn. MR. QUINN : Could I hand up copies of some of the three cases only in relation to costs including the decision of this Court in the Queensland Club case which is the last of them? HIS HONO UR: Yes. MR. QUINN: And submit that the difference in the Queensland Club case is that the circumstances of that appeal were that the Valuer-General was unsuccessful before the Land Court and having been unsuccessful it was the Valuer-General who took the la nd owner to the Land Appeal Court in the Queensland Club case and that case, if one looks at the report, seems to have been acknowledged to have been a test case if one goes to page 222. HIS HONOUR: Well I thought this was in the nature of a test case too, wasn't it? Whoever was in the Land Court I expect would have appealed to the Land Appeal Court. Wasn't that the way the thi ng ran? MR. QUINN: No Your Honour. The other side appealed. What the Valuer-General might have done had the owner been successful in the Land Court is perhaps a matter for speculation, but the ---------- THE PRESIDENT: Well I think it's more than that Mr. Quinn. The application was made to me in Chambers on the question of a hearing and I was told quite firmly then that it was only running through the Land Court and irrespective of a decision on either side it would go to the Land Appeal Court. There had been a decision in the case of Mathers where the appeal was allowed but for some other reason and my f irm belief was , when the application came before me - Mr. Walker can correct me if I'm wrong - eg Govt. Prlnter, Qld. _2_ A PP iication for Cos ts -- 24 of 32 -- but I thought lt didn't matter what happened in the Land Court, one way or the other this matter was going to be tested in the Land Appeal Court because of its importance and al l the numbers are still awaiting to be d~termined. MR. QUINN: Well Mr. Walker has told the Court that it was a test case certainly so far as his client was concerned and there was said to be 700 of them interested in it, but if, for example, one takes the situation of Mathers and Gibson, there was no appeal by the Valuer-General in relation to that matter although that involved a different set of prov1s1ons to those that were considered in the Queensland Club case and I think it has to be acknowledged that the only appeal that there's ever been in relation to these sorts of matters was the Valuer-General's appeal in the Queensland Club case and the overall question of principle was determined by this Court in that case. HIS HONOUR: The Land Court was persuaded in this case that the Queensland Club case, if not wrongly decided, was distinguishable. MR. QUINN: Yes Your Honour. HIS HONOUR: So tha t really it was really an attack on a matter of principle which ultimately I think, it's been held in this case, was unfounded. MR. QUINN: Yes. Your Honour, the other circumstance that perhaps is relevant in relation to the question of costs is that the Land Court in determining the matter in this case was following a decision of its own in the Mathers and Gibson case in relation to the same legislation really, so that it wasn't a case of - it was essentially a case of the Court following another of its earlier decisions on the same legislation, so that HIS HONOUR: Well in the Mathers case it wasn't necessary for the determination of that appeal, was it, to determine this point. What was said in the Mathers case didn't necessarily determine the result of the appeal. The view that was expressed in the Land Court in this case was the opposite, wasn't it, of the Mathers case? MR. QUINN: Well the Court had to in the Mathers case determine whether either of t he provisions, that is the statute or the town plan, affected unimproved value . MR . WHITE: Well actually the Valuer-General lost under the provisions of the plan . MR, QUINN: That's right, and didn't appeal that decision. MR. WHITE: And then the Member went in and dealt with the heritage. His Honour is saying that the Member dealt with the Heritage Act when I suppose one can say it's really obiter because the decision had already been made in respect of the planning. MR. QUINN: Well the two points were dealt with in the same judgment. I suppose the point that was critical, having decided that the Act didn't apply or the Act didn't have effect on value, was then to deal with the planning point and having decided that it did affect value there was the decision on both points, but the -------------------------------- HIS HONOUR: There would have been no basis for appeal. Govt. Prirlter, Old. -3- Application for Costs -- 25 of 32 -- MR. QUINN: The owner could not have appealed Your Honour HIS HONOUR: And really the Valuer-General, the Crown, could have appealed but not on the point that was taken in this case. It could only have appealed on the planning point. MR. QUINN: Yes, and I refer to that aspect of it, Your Honour, to indicate that the Valuer-General, since the Queensland Club decision, has not appealed the question the appeal came to the Court. HIS HONOUR: Well the Valuer-General has taken the view apparently that the heritage point touched on in an obiter fashion in the Mathers case supported the argument that was put forward in this case in the Land Court. MR. QUINN: Oh it was the same point, yes Your Honour. HIS HONOUR: In this case it was the critical point. MR. QUINN: Yes Your Honour. HIS HONOUR: In the other case it wasn't the critical point. MR. QUINN: Yes. Your Honour, can I refer to the W.H. Bowden decision? That was in 1980, the relevant passage is at page 1449, and that was a case which involved as well a mixture of construction of both fact and law. The relevant passage is at 149 in the third paragraph, "We are satisfied that the Valuer- General did not arbitrarily or capriciously adopt the interpretation" of the provision relied upon and went on to conclude that there ought be no order as to costs. That also was a question of construction. Might I take the Court then to the next case which was an appeal by Hymix Industries Pty. Ltd., and that was a case in which the appellant was successful. This is a more recent case Your Honour, 1990. The relevant passages are at page 185, 186. The Court at the foot of 185 referred to the discretion and to the decision in W.H. Bowden and The Valuer-General and applied the test in the last paragraph at page 186 that neither party had approached the matter in an arbitrary, frivolous or vexatious manner. The other aspect of the matter that might be referred to in this case is that indeed perhaps it was an exemplary demonstration of co-operation, there was no need for any valuation evidence at all. The parties agreed the value that the Court ought arrive at if one construction of the statute was correct : HIS HONOUR: Well that's a very sensible arrangement really. I mean it simply means if an order for costs is made the costs will be lower than they would otherwise have been. MR. QUINN: So that Your Honour it's a long way away from the situation where anyone could be said to have behaved in an arbitrary, frivolous of vexatious manner and, indeed, the appeal was reduced as I recall it to the point of it was finished by lunch. It was quite a short argument. HIS HONOUR: Well simply a construction. It's simply a matter upon principle upon which there were two views that had been voiced in this case and other cases and there are a lot of people awaiting the determination of an authoritative pronouncement of the principle that should apply. Qovt. Printer, Qld. -4- Addiication for Costs -- 26 of 32 -- MR. QUINN: Yes. The other aspect of it which perhaps makes it a lot different to the Queensland Club case was that it was a case where the Court below had followed a decision in an earlier case whereas, as I've already me ntioned, the Queensland Club case was one where the Valuer- General had lost in the Land Court and had appealed to this Court so that it was perhaps in those circumstances where it was said to be a test case that ultimately it was a much stronger case to regard it as one where the Valuer-General ought pay the costs. So far as t he concept of a test case is concerned, it's said to have been a test case for 700 of these people. How many of them might otherwise have appealed one doesn't know, but from the point of view of the other part to the proceedings, the Valuer-General, he has a statutory function and I'd submit ought not be penalised in costs, particularly where the decision ultimately involves supporting or an attempt to support an order of the Court below. So far as the quan t um of the costs is concerned, might I refer the Court to the decision of the Land Appeal Court in Brisbane Exposition and South Bank Redevelopment Authority and Neray Holdings, I'm not sure that it has been reported, it was a decision give n in April --------------------- THE PRESIDENT: It is reported Mr. Quinn. MR. QUINN: I've got the judgment but I won't be able to give you the page for reference but it would be on, I think, the last page of the report. In that case, that was a resumption case, the dispossessed owner obtained an orde'r for costs but the Court limited the costs as including the costs of junior counsel only, but my primary submission is that this is not a case where there can be seen to be anything to take it out of the ordinary from the Valuer-General's side of the fence and the ordinary rule that there ought be no orders as to costs is not shown to me to be displaced in this case. HIS HONOUR: Was any order for costs sought by anybody in the Land Court? MR. QUINN: Your Honour reminds me, that was the other point, there was no order for costs either sought or made in the Land Court. HIS HONOUR: I suppose that would be consistent with both sides regarding the Land Court application as simply a starting-off point to this Court and it was decided that it was in the nature of a formal thing so that whoever was dissatisfied with it could appeal. MR. QUINN: Your Honour, or alternatively, the recognition that really ordinarily one doesn't get orders for costs. HIS HONOUR: I just had in mind what was said to the President at the Chamber application that it was thought that it was going to go to the Land Appeal Court whatever happened and the way it was done. I mean there were written · submissions put into the Land Court. I think they were probably only spoken to shortly, if at all. Well they were----- MR. QUINN: I don't think they were at all Your Honour. HIS HONOUR: No, I mean I think it was just a formal sort of thing to get all the points down. The brief record was prepared to include the material documents only and the agreements on valuation on the two approaches made it unnecessary to do anything really, except look at the eg Govt. Printer, Old. _5... A DP licatio p for Costs -- 27 of 32 -- 10 construction point and I thought that's what the Land Court did really . MR. QUINN: Yes. Your Honour, as I recall it, it was said that the point was simply a question of la w and tha t th ere was no need for any valuation evidence, that's why it was reduced to writing. Indeed, the same could have been, perhaps with this Court's approval, done here. It didn't, as I recall, include the expression of any view by the Valuer- General. I wasn't there but as I recall the approach to it, there had been by no means any indication , from the Valuer-General that he wou ld appeal . HIS HONOUR: It was almost in the nature of a step taken to get a case stated for attention of this Court re ally. MR . QUINN : Well Your Honour that may well be so from the owners point of view, there may be a pool of them who banded together and contributed to the costs and said, "Let's take Ballow Chambers, it's one that will present well as a test case.", but for one side to say, "Well we're going to make this a test case", the other side really doesn't have any option rea lly, if there is an owner who in concert wit h other owners 20 thinks that he's got the best cas e to present in order to have this point argued. HIS HONOUR: Oh no I mean the po int's taken that the approach of the Val uer-General was wrong, the Valuer-General said, "No ·it's not wrong, this is my view of the law and this is the principle I apply." It's just a question of determining whether he was right or wrong. MR. QUINN: Yes Your Honour. HIS HONOUR: I mean there's no talking about good examples and bad examples, I suppose it was good in the sense that the land would have had potential for commercial redevelopment if it weren't for the heritage legislation and it was a short point, you've got three times the value if it does have that potential than if it doesn't have it, or roughly. I t 's that sort of approach, so it was a very short simple point and on my reading of the Land Court Member's judgment it was simply in the nature of a construction. MR. QUINN: It's like a co nstru ction summons, yes Your Honour . HIS HONOUR: It's just a construction really. MR. QUINN: But the only point that I really want to make about the test case position is that you can have a test case in the true sense if both sides col laborate and say, "Let's take that one because it really has al l of the possible permutations and combinations of characteristics that if decided will then lead to the resolution of a whole lot of other points. Although it's said it was a test case, perhaps it was sought to present better from the land owners point of view --------- THE PRESIDENT: But who selected it Mr. Quinn? Who selected Ballo w Chambers? MR. QUINN: I don't think there was any selection other than by the - I don 't know if there is an association of people who got together, I've got no idea, but presumably if there are 700 of them and they represent THE PRESIDENT: There ' s not 700 that I know of. e g Govt. Printer, Qld. _5_ APPl Catjon -- 28 of 32 -- THE PRESIDENT: Was there a mention of 700, was there? I don't know about that, there's certainly not 700 in the Court awaiting, but the Valuer-General at the moment is faced with some - speculating a number, say 20 to 30, I don't know, that's only relying on memory, but they' re still awaiting hearing, these old valuations, there's certainly a number in the Court and which MR. QUINN: I don't have any idea, I'm just repeating the number that was mentioned earlier on, but from their side of the fence there was no requirement for any agreement by the Valuer-General to agree a test case, all they had to do was put in appeals on any numbers in which they wanted to protect their position and then advance one ahead of the others. HIS HONOUR: It's really more like a_construction of a point of law under an Order 64 application in the Supreme Court than a test case. I mean a test case in my experience is one where a parcel of land having similar attributes to many other parcels is determined and you take two or three matters and then you proceed on the basis of the valuation arrived at to determine other valuations, but that's not this sort of case. This is simply a case of what the principle is and applies in all cases. MR. QUINN: That's so Your Honour. And it wouldn't have mattered which block was selected, if it was listed in the Act and was subject to the same provisions as this one, then any one of them really in a sense it's not a correct position to say it's a test case. It may well be that in the practical sense the other owners, had this case been successful from the Valuer-General's point of view, may or may not have fallen into line but one simply doesn't know. Someone could if he wanted to have said, "Well I'm not satisfied with the decision of this Court, I'm going to bring my case forward and treat it as a test case in the Full Court." HIS HONOUR: Well it could still be taken up to the Court of Appeal, I suppose. It's a simple point of law that's either right or wrong but I mean if it's not challenged on appeal it will apply the principle to all cases of valuation of heritage listed land or places. MR. QUINN: In this Court, yes, and that really is a very different situation to the situation presented in the Queensland Club case where the Valuer-General chose not to accept the determination in the Land Court, where he lost there. He then took the owner to the Land Appeal Court and lost there. Now that's really quite a different situation because it was his appeal and one doesn't know but it doesn't seem to have been argued about, but if one looks at the report of the Queensland Club case it was said by the respondent in that case, that is the land owner, "Oh this was a test case", and the Court seemed to have thought that perhaps ------------------------------------------------------------------ MR. WHITE: Well the Court, I think, adopted those words and Mr. Paterson, who appeared for the Valuer-General, used those words himself and I think the wording used by Mr. Hanger was a ruling, that the Valuer- General was really seeking a ruling from the Land Appeal Court, and I seem to recall that he drew a similarity between the procedure where it's adopted in that case and what is done under taxation laws where the Commissioner goes on appeal for the purpose of seeking a ruling. But the three cases all can be distinguished in a way because, which you're probably familiar with Mr. Quinn, Queensland Club dealt with planning provisions only but outside the CBD, the Mathers case dealt with planning provisions within the CBD and there is a difference between them that perhaps may not have been of any substance in terms of the result of the Mathers case, and then we come to this case which is fair and square on the Heritage Act, so really three rulings have been given and one might be Govt. Printer, Old. -7- App lication for Costs -- 29 of 32 -- able to say there was much more affinity between Mathers and Queensland Club because both were determined on planning provisions when you get to this case It was solely on the basis of whether Heritage Act applied in the circumstances . MR. QUINN: And unfortunately there is another Act which is HIS HONOUR: Well we'll leave that for another day perhaps . MR. QUINN: Well perhaps what I'll have to do if I'm still Involved at that stage is on the first day stand up and say, "We're here because they appealed and it's not a test case so far as we're concerned." MR. WALKER: Your Honour, if I could just respond to a number of the points that my friend has made? /He sought' to distinguish the Queensland Club case on the basis of who it was who brought it to this Court. In my view that's not an appropriate ground for distinguishing the decision In the Queensland Club case, it's really simply a function of how the cards fell at the Land Court hearing and my submission is the fact that they fell against us at the Land Court and that meant that we had to take the appeal is not a reason for departing from the principle enunciated in the Queensland Club's case. To just take that point a bit further, if I could confirm the recollection that the President gave to the Court which was that there was an agreement between the parties that the Land Court hearing would be done in the most basic manner possible for the purpose of keeping costs to a minimum and on the clear expectation that an appeal to this Court was likely. If I could also say, having been involved in the negotiations which led to the choice of Ballow Chambers as the case to come to this Court, that that was by agreement with the Valuer-General. There were a number of cases which were listed before the Court for hearing. It was agreed between both parties that Ballow Chambers was the most convenient and easy case for two reasons: one, it was a building which, unlike another which I remember was in the list, McWhirters building, hadn't been recently redeveloped, didn't have odd bits of land tacked onto the side of it, it was a clean clear case and, furthermore, the valuation could be agreed between the parties and therefore it was a case which could easily be presented to the Court and argued simply on the pure unadulterated point as to whether or not the Act applied. THE PRESIDENT: Could I take it a step further? I was left with the clear Impression it didn't matter what the Land Court said, and Mr. Paterson was there and you were there Mr. Walker - was I wrong in my appreciation of the position that really it was going to go on appeal because although I dealt with the matter in Chambers both parties were approached later and said well it seemed rather foolish, it was a question that Mr. Neate had determined in another case, and more appropriately that he should deal with it In the Court below, and so two Members weren't being tied up in the same position and weakening the numbers for the Land Appeal Court, am I correct? And the parties at that time agreed that that was a much more sensible arrangement although it had come to me in Chambers, and as I rec a ll, I had listed some matters, four cases which were not - it may have been McWhirters - but then the approach was made on the basis that these matters were not going to proceed and the parties thought instead of those, Ballow Chambers, is that so? MR. WALKER: Sir, I think your expectation is correct in that regard. It would probably be putting it too high to say that the Valuer-General had agreed that whatever happened, one or the other of us would appeal the and the because I think the clear expectation was that we'd be copping it ------------- Govt. Printer, Old. -8- Appll cation -- 30 of 32 -- THE PRESIDENT: Well I thought somebody had quite clearly tol4 me - I left my Chambers feeling quite clearly that whatever happened - I could be wrong ---- MR. WALKER: I certainly couldn't say that from my recollection the Valuer-General had given any specific undertaking in that regard, I think that's oniy because we always expected that we would be the appellant, given the determination that had previously been made in the Land Court. HIS HONOUR: Well it was expected that if Mr. Neate heard the matter he would follow the reasoning that he'd expressed in the Mathers case, I . assume, and that was why it wasA put down before him, MR. WALKER: I did my best in the written submissions Your Honour to change his mind but I wasn't hopeful. Mr. Quinn has also raised the issue of the Valuer-General not acting in an arbitrary or capricious way; can I put it on the record that that is not the submission of us in any case and it was not the position in the Queensland Club case · and was specifically said not to be the position, the issue was simply whether in the circumstances of it being a test case, as it was described, the costs 20 should be awarded. HIS HONOUR: The Queensland Club case is a little different. In that case it was decided that the costs would be ordered only in respect of the Land Appeal Court. MR. WALKER: Tha t' s correct. HIS HONOUR: No order has been made in the Court below, I'm not sure whether it had even been asked for. Had it been asked for in the Court 30 below? MR. WALKER: Your Honour, we didn' t act in that case, THE PRESIDENT: The answer is yes, according to the reported case but again it was part of the agreement between the Valuer-general and ourselves that costs would not be sought in this case at the lower Court for the reason as I've said before that it was clearly expected that the matter would come here. 40 HIS HONOUR: Well you would only be asking for costs in this Court and not in the Land Court because it was agreed between you and the Valuer-General that no order would be sought in the Land Court by whoever won? MR; WALKER: That is correct Your Honour. Your Honour, my final submission would simply be that section 45(16) gives the Court a discretion in this matter. There is no presumption as to there being no order as to costs but that is clearly the practice of the Court, but in my submission Your Honour nothing that Mr. Quinn has said takes this case out so of the same category in which the Queensland Club case fell and that the Court should follow the practice which it adopted in that case. HIS BONOUR: Well in this case it is clear that the Court has a discretion under section 44(16) of the Land Act to make an order for costs in favour of the successful appellant. 'It seems from what we've been told and from_looking at the record upon which the appeal was argued, that the application to the Land Court was of a very formal kind involving the presentation of essential material in written form together with written submissions, in the expectation that the Land Court would not be Cg Govt. Printer, Old. -9- Application for Costs -- 31 of 32 -- distrdcted by matters of evidence but would be able to concentrate its attention entirely upon the matter of principle which was debated and which was the matter that we dealt with in our judgment. We are informed that it was agreed tha t no order for costs of the Land Court matter would be sought by either side and this is not surprising because in general it is clear that the principle contained in W.H. Bowden v. The Valuer-General (1980-81) 7 Queensland Land Court Reports 138 is applied in valuation appeals to this Court, and in ordinary normal cases, parties should be able to appeal without fear of costs being awarded against the unsuccessful party. Th i s is the general rule but it is subject to an exception in special cases and an example of a special case is to be found in the decision of this Court in the case of The Valuer-General against The Queensland Club (1991) 13 Queensland Land Court Reports at page 207. The r e was no agreement however with respect to the costs of any appeal from the decision of the Land Court. This seems to us to be a case where there were a significant number of valuations made according to the principle for which the Valuer-General contended unsuccessfully before us. We are informed by the solicitor for the successful appellant that the valuations of many hundreds of parcels of land would be affected by the cons t ruction of the Act which we have adopted . It is within the knowledge of this Court that there are 20 or 30 appeals awaiting the outcome of this decision before decisions are made whether to prosecute them. The matter debated before us and which we have ruled upo n is really essentially a matter only of law and it is clear that the Valuer-General, if he so desires, may have that matter of law canvassed before the Court of Appeal because no consideration at all really has been given to any disputed issues of fact. In fact, there were no disputed issues of fa~t upon this appeal. It seems to us that this case comes with i n the same category of special case as did The Valuer-General against The Queensland Club, and we take the view, for the reasons that we have stated shortly, that this case was argued not just for the benefit of the parties in this case but to establish a mat t er of principle that would have application throughout the State in the valuation under the Valuation of Land Act of heritage listed parcels of land. We have come to the conclusion that the proper order in the circumstances is that the unsuccessful respondent pay the costs of the successful appellant, to be taxed. We think, havi ng regard to the importance of t he point and to the decisions in the Land Court which led to this appeal being instituted, that it was reasonable in the circumstanc~s for the appellant to have two counsel, as indeed it would have been for the respondent to have had two counsel. We certify therefore that it is an' appropriate case for the appellant to have its costs taxed on the basis that it was reasonable to brief senior counsel to lead junior counsel. The amount of costs must be ascertained and fixed by the costs taxing officer of the Supreme Court of Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance wi t h the provisions of section 44( 16) of the Land Act 1952-1990. Thank you gentlemen. The Land Ap peal Court adjourned. C g Govt. Printer, Qld. -1 0- Order for Costs -- 32 of 32 --