Ballow Chambers Limited v The Valuer-General [1992] QLC 308

Re: Appeal against Annual Valuation of the Valuer-General City of Brisbane AV92-115 Ballow Chambers Limited V The Valuer-General DECISION LAND COURT BRISBANE 18 December 1992 The appellant, Ballow Chambers Limited, owns lot 2 on RP 50898 and Lot 3 on RP 50899 in the Parish of North Brisbane. The land has an area 'of 1,272 square metres and is located at 121 Wickham Terrace, Spring Hill. In the annual valuation of the Area · as at 31 March 1.990 the Valuer-General assessed the unimproved value of the , subject land at $1,900/000. On objection, the valuatitfo was reduced to $1,400,000. The appellant has~· appealed to the Land Court against the Valuer-General's valuation. In its Notice of Appeal it estimates the unimprove.& value of the land at that date at $500,000. In . submissions to this Court, however, that figure was revised to. $450,000 . The Notice of Appeal states the sole ground of appeal to be that the land value is "too high and contrary to law" , In. the appellant's submiss'ion, however, the only question for the Court is whether the Heritage Buildings Protection Act 1990 affected the unimproved value of the subject land at the relevant date of valuation. Section 16J(3) of the Valuation of Land Act 1944 provides that the burden of proving any and every ground of appeal shall be on the owner of the land. [1992] QLC 308 -- 1 of 18 -- 2 At a hearing in Chambers before the President of the Land Court, the parties agreed that argument in this cape be presented by way of written submission . In accordance with an agreed timetable, the appellant filed written submissions to which the respondent made written reply. The appellant, in turn, replied in writing to the respondent's submission. The le gal issue Section 12(1 )(b) of the Valuation of Land Act 1944 provides that, for the purposes of that Act, "unimproved value of land" means, 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, assumin g tha t, at the time as at • which the value is required to be ascertained for the purposes of this Act, the im p rovements did not exist" (emphasis added). The legal issue in this case is whether the listing of Ballow Chambers as a "heritage building" in the Schedule to the Heritage Buildings Protection Act 1990 is relevant to the determination of the unimproved value of the land at 1 21 Wickham Terrace. Expressed as a question the issue is this: assuming that the improvements on the subject land (Ballow Chambers) did not exist, would the capital sum which the land might be expected to realise at sale be affected by the operation of the Heritage Buildings Protection Act 1990? The practical consequences of resolving that question have been agreed by the parties. If the answer is yes, the unimproved value of the land would be $450,000. If the answer is no, the unimproved value of the land would be $1,400,000. The legal issue in this case is the same as one of the issues raised before this Court in RW Mathers and RF Gibson v The Valuer-General, AV92-106 ("Mathers and Gibson"). That case concerned a block of land located in the Central Business Zone of the city of Brisbane. A building on that land was a "heritage building" for the purposes of the Heritage Buildings Protection Act 1990 and was a "Heritage Building" which was subject to heritage provisions in section 22 of the Town Plan for the City of Brisbane. This Court's decision in that matter was delivered on 18 September 1992 . -- 2 of 18 -- 3 The present case falls to be resolved solely by reference to the Heritage Buildings Protection Act 1990. The decision · in Mathers and Gibson has been reviewed in light of the written submissions made by the parties. The Heritage Buildings Protection Act 1990 The Heritage Buildings Protection Act 1990 was (until its repeal on 21 August 1992, the date of the commencement of section 3 of the Queensland Heritage Act 1992) "An Act to provide for the listing and protection of heritage buildings and for related purposes. Section 3(1) of that Act provided, in summary, that a "heritage building" was "anything listed in the Schedule" to the Act. Part A of the Schedule of the Act included in the list of "heritage buildings" "BALLOW CHAMBERS 1 21 WICKHAM TCE BRISBANE". The Act was assented to for and on behalf of Her Majesty on 15 June 1990, some 2 months and 15 days after the relevant valuation date. Section 2(2) provides, in effect, that, although the sections containing the short title of the Act and the provisions for its commencement took effect from 15 June 1990, the other provisions of the Act are deemed to have commenced on 11 March 1990, more than two weeks before the relevant valuation date. In Mathers and Gibson it was submitted for the Valuer-General that he (and the Land Court) was entitled to ignore the operation (if any) of the Act in respect of land at 31 March 1990 because, at that date, a prudent purchaser would not, and could not, have been aware that the land in its unimproved state would have been subject to the restrictions flowing from the operation of the Act. The Court held that: (a) the Act must be taken to have commenced to operate on 11 March 1990; and (b) a prudent purchaser of a property which is subject to the provisions of the Act could have ascertained as at 31 March 1990 that legislation concerning historic buildings would be enacted to operate from 11 March 1990 and that the legislation would impose restrictions on what could be done to any historic building on the land. -- 3 of 18 -- 4 In the present case the appellant accepted that decision and adopted it in respect of Ballow Chambers. The Valuer-General has not contested the Court's decision and his submission proceeds on the basis that the Act was operative in respect of Ballow Chambers at the relevant valuation date. As the Heritage Buildings Protection Act 1990 was repealed before the hearing of this case, I note for completeness that section 20 of the Acts Interpretation Act 1954 provides that the repeal of an Act does not affect the previous operation of the Act or affect a right, privilege, obligation or liability acquired, accrued or incurred under the Act. Any proceeding in relation to such a right, privilege, obligation or liability may be continued as if the Act had not been repealed. Because the Heritage Buildings Protection Act 1990 did operate at -the relevant valuation date and because it would have been possible for the hypothetical prudent purchaser and vendor to ascertain at that date the broad terms of the Act, then that state of affairs would be relevant to the determination of the unimproved value of the subject land if provisions of the Act applied to the land in its unimproved state {see Spencer v Commonwealth (1907) 5 CLR 418, at pp. 440-1 (Isaacs J); Royal Sydney Golf Club v Federal Commissioner of Taxation (1954-57) 97 CLR 379, at p. 385 {Kitto J); Re Phillips (1972) 27 LGRA 470, at pp. 471-2 {Joske J)) . Determining the unimproved value of the land The approach to be taken in determining the unimproved value of land on which heritage buildings are constructed was set out by the Land Appeal Court in Valuer-General ats Queensland Club (1991) 13 QLCR 207 {the "Queensland Club case") In that case the issue was whether a certain heritage provision of the Town Plan for the City of Brisbane affected the unimproved value of land on which the Queensland Club was located. In resolving the issue the Land Appeal Court considered other leading decisions about statutory provisions concerning the valuation of land, namely: Toohey's , Limited v The Valuer-General [19251 A.C. 439 {P.C.); Tetzner v Colonial Sugar Refining Co Ltd [19581 AC 50 {P.C.); Commissioner of Land Tax v Nathan (1913) 16 CLR 654 {HC); Randwick Municipal Council v Valuer-General: In re Kensington Golf Links Ltd (1960) 5 LGRA 387; Queensland Turf Club v The Valuer-General (1979) 6 QLCR 180 {L.C.). The -- 4 of 18 -- 5 question in those cases was the practical effect of making the assumption that "the improvements did not exist" when determining the unimproved value of improved land. The Land Appeal Court quoted with approval the following passage from the judgment of Sugerman J in the Randwick Municipal Council case: "It appears to follow from Tetzner's Case that, in a case such as the present, the making of the required assumption does not also require that the actual statutory restrictions upon the use of the land must be ignored in favour of a completely speculative inquiry into what, if any, restriction there would have been if the improvements on the land had not been made. Where the existence or nature of particular statutory restrictions on the use of land at any given time is made dependent· upon the presence or absence of improvements at that time, it appears proper to attribute the restrictions applicable to the land in its improved condition to the improvements, so that an assumption that the improvements had not been made should carry with it the consequence that the last-mentioned restrictions must be regarded as having departed with the improvements to which they were attributable and the restrictions applicable to the unimproved land as standing in their place. Where, however, the existence of particular improvements on the land at some anterior time is merely part of the history of the imposition of restrictions on its use - that is, as furnishing a reason or motive for their imposition - there is no ground for regarding those restrictions as, in the relevant sense, attributable to or inherent in the improvements; so that, if it must be assumed that the improvements had not been made, it does not follow that the restrictions must be taken as not having been imposed. And this is more obviously so where it does not appear from the relevant legislation that actual removal or destruction of the improvements would operate by way of discharge or variation of the restrictions. The circumstances of the present case, in which the state of improvement of the subject land existing in 1951 and 1952 is no more than part of the history of its treatment for the purpose of town- -- 5 of 18 -- 6 planning control under the relevant legislation, brings the case within the second, rather than the first, of the two categories which I have mentioned. Although the subject matter of valuation is the land regarded as if the improvements had not been made, the restrictions upon its use actually in operation at the valuation date must be taken into account; and the valuer is not required to regard these actual restrictions as non-existent and to complicate a valuation which is already sufficiently hypothetical by the addition of a speculative inquiry as to what, if any, the relevant restrictions upon the use of the land would have been if it had been unimproved. " (( 1960) 5 LGRA 387, at p. 395). The Land Appeal Court observed that this passage appeared to be on point in the Queensland Club case in the following two ways: (a) that the existence of the Queensland Club was the force motivating the imposition of the particular restrictions on the use of the land for redevelopment; and (b) under the relevant section of the Town Plan, actual removal or destruction of the improvements would not (on the face of the Plan) operate by way of a discharge or variation of the restrictions on the land. (at p. 218) The Land Appeal Court expressed the view that the Randwick Munici p al Council case and the Queensland Turf Club case "recognised reality in the process of valuation". The Court warned of the danger inherent in applying in a strict sense the words that it must be assumed that the improvements are to "be taken, not only as non-existent, but as if they had never existed" (See Toohe y 's , Limited v The Valuer-General (1925) AC 439, at p. 443). That course of action, said the Land Appeal Court, "can result by taking a rigid application of principles set when statutory restrictions upon use, more particularly zoning laws, were in their formative stages" ((1991) 13 QLCR 207, at p. 219). The critical point in the Queensland Club case was that if the improvements were taken away from the land there remained a parcel of vacant land zoned "Special Development (City Residential)" but limited in Gross Floor Area on -- 6 of 18 -- 7 development to that specified in subsection 22.8 of the Town Plan. On this point the Court distinguished the Queensland Club case from others cited to it (including cases dealing with existing lawful non-conforming uses of land), where any enhancement in value by reason of the fact that the land could continue to be used for the purpose for which it was used, lived or died with the buildings (improvements) upon the land (at p. 220) . The Land Appeal Court also made observations on the effect of the assumption that, as at the relevant date, the improvements "did not exist" (Valuation of Land Act, section 12(1 )(b)), "had not been made" (section 12(1 A)) or "never had existed" (Toohey's case). The Court viewed that terminology as "language necessary to describe the notional physical state of the land to be considered at a specific point in time", that is, the land in its unimproved condition at the relevant date of valuation. The land is identified as such in its existing environment within its relevant town planning zone .. When valuing the Queensland Club land, the valuer was to have put from his mind the fact that the Queensland Club ever existed, "for no other reason than to see the land in its virgin state but as zoned and in the existing environment". The Court continued: "Once this scene has been set, the making of the valuation would indeed be conducted in a vacuum if any statutory restrictions (or advantages) attaching to the use of that land (no matter the historical happenings which created those restrictions or advantages, whether related to the local environment or confined within the boundaries of the particular site) and which had an effect on 'the capital sum which the fee simple of the land might be expected to realise if offered for sale', were to be ignored. If the valuation was conducted in such a vacuum the result would be plainly wrong." (p. 221) Following the approach of the Land Appeal Court in the Queensland Club Case, the issue in the present case is to be addressed by asking: (a) whether the Heritage Buildings Protection Act 1990 applied: (1) only to the building on the subject land; or (2) to the building and the subject land; and -- 7 of 18 -- 8 (bl if the Act applied only to the building, whether the actual removal or destruction of the building at or before the relevant valuation date would have operated by way of a discharge or variation of the restrictions on the land . Herita ge Buildin g - buildin g onl y or buildin g and land? Because the Valuation of Land Act 1944 requires the Valuer-General to make a valuation of the "unimproved value" of land on the assumption that, at the time as at which the value is required to be ascertained for the purposes of this Act, "the improvements did not exist", the provisions of the Heritage Buildings Protection Act 1990 can only be relevant if they attach to the subject land in its unimproved state. As noted earlier in these reasons, the Schedule to the Heritage Buildings Protection Act 1990 listed the relevant "heritage building" as "BALLOW CHAMBERS 1 21 WICKHAM TCE BRISBANE". The appellants contend that the "heritage building" at 121 Wickham Terrace includes the structure and all the subject land and that, because provisions of the Heritage Buildings Protection Act 1990 did apply to the subject land and because any legislative or town planning restrictions affecting the use of land must be taken into account in assessing the unimproved value of the land (see Ro y al Sydne y Golf Club v Federal Commissioner of Taxation ( 1954-55) 91 CLR 610, at pp. 621, 624-5), the valuation of the subject land should be made to reflect the restrictions imposed by the Act. There was no factual material before the Court about the structure on the subject land. Section 3(2) of the Heritage Buildings Protection Act 1990 provided that where there was any doubt as to the boundaries of, or what comprised, a heritage building, the boundaries or the composition of the heritage building were or were to be as certified by the Minister. A certification is evidence (and may be conclusive evidence) of matters contained in it. No certification was tendered or referred to in this case. Consequently, the matter falls to be determined by reference to the terms of the Act. Before turning to the definition of "heritage building", it is useful to summarise the scheme of the Act, particularly as it appeared from sections 8, 9, 11 , 1 7 and 18. Section 8 provided that, subject to section 6 (which I take to be of -- 8 of 18 -- 9 no relevance to this case), an owner of a heritage building who intended to "demolish, develop or subdivide that building" had to apply to the presiding officer of the Heritage Committee (constituted under section 7) for a heritage certificate authorising that demolition, development or subdivision. Each of the terms "develop", "demolish" and "subdivide" was defined separately in subsection 3(1) of the Act. The Heritage Committee was obliged to issue a certificate which approved the application (either unconditionally or subject to conditions) or refused the application. Section 9 provided for a review to be made when an applicant was dissatisfied with a decision of the Heritage Committee and for an appeal against a decision of the Committee to be made to the Minister, whose decision was final. Section 11 stated that, as a general rule, any person who "demolishes, develops or subdivides any heritage building", otherwise than pursuant to and in accordance with a heritage certificate, committed an offence against the Act. The maximum penalty was 17,000 penalty units which, in March 1990, was equal to $1,020,000. Section 1 7 provided that where a person was convicted of an offence against the Act, the Minister could make a "restoration order" against that person, which order would be in addition to any penalty imposed in relation to the offence. A restoration order could require the person to undertake or carry out such "repairs, work or restoration to the heritage buildings" as may be specified in the order to the satisfaction of the Minister. It was an offence for a person to knowingly fail to comply with a restoration order (maximum penalty 17,000 penalty units). If the relevant person failed to comply with the restoration order to the satisfaction of the Minister, the Minister could cause appropriate action to be taken to ensure compliance. The costs of any action taken would have been a debt due and owing to the Crown. Section 18 empowered the Minister to make a "non-dealing order" in relation to a heritage building. A non-dealing order, which could be made "at any time", could require that no dealing or only a specified dealing could occur "in respect of the heritage building" for a specified period not exceeding 10 years. The Minister could revoke or vary an order. A copy of a non-dealing order (or a revocation or variation of it) was to be lodged with the Registrar of Titles, Registrar of Dealings -- 9 of 18 -- 10 or other person required by law to register or record dealings with land. That person was required by law to register or record particulars of the order, revocation or variation. On and from a registration or recording of an order or variation, all dealings with "the land" were subject to the terms of the order (or the order as varied) for the period and "no right or interest may be created in relation to that land" for that period contrary to the order or variation. The Valuer-General contends that the restriction imposed by section 11 of the Act was specific to the improvements on the land (Ballow Chambers) and did not apply to unimproved land. Because the restriction only applied to the improvements and did not relate to the land, it was not relevant to the determination of the "unimproved value" of the subject land at the relevant valuation date. A careful reading of the relevant sections ,in light of the definitions of "heritage building", "demolish", "develop" and "subdivide" clearly shows that the Act could apply to a "building" or to a "place" or a place (that is, an area of land) on which a building or structure had been erected. The issue here is whether, in its application to "BALLOW CHAMBERS 121 WICKHAM TCE BRISBANE", the Act imposed restrictions on the subject land (including the building) or on the building alone. Subsection 3(1) of the Heritage Buildings Protection Act 1990 provided: "In this Act, unless the contrary intention appears - 'heritage building' means 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; (b) where the thing is a place - (i) any building or structure erected on or removed to the place, any part of the bw1ding or structure; and -- 10 of 18 -- 11 (ii) any natural feature within the boundaries of the place." The definition uses both the word "means" and the word "includes". The learned authors of Statutory Interpretation in Australia state: "The orthodox and, it is submitted, the correct approach to the understanding of the effect of these expressions is that 'means' is used if the definition is intended to be exhaustive while 'includes' is used if it is intended to enlarge the ordinary meaning of the word. " (3rd edn, 1988, para 6.35) The learned author of Craies on Statute Law express the approach to be taken as follows: "There are two forms of interpretation clause. In one, where the word defined is declared to "mean" so and so, the definition is explanatory and prima facie restrictive. In the other, where the word defined is declared to "include" so and so, the definition is extensive. " (7th edn, 1971, p. 213; see also D Gifford, Statutory Interpretation, 1990, at p. 29) Applying the orthodox approach to the statutory definition of "heritage building" involves two steps. First, the heritage building "means" the thing listed in the Schedule, that is: "BALLOW CHAMBERS 121 WICKHAM TCE BRISBANE". Taking that entry in the Schedule to be exhaustive, what does it comprise? The appellants submit that it comprises the subject land together with the structure on the land. They submit that it is not necessary or appropriate to read the entry in the Schedule as referring to the building only. If there is some ambiguity as to what "heritage building" means in relation to the subject land, it is appropriate to take the second step and look at what it "includes". The approach to interpretation clauses which use the work "includes" is that stated by Lord Selbourne LC in Robinson v Local Board of Barton-Eccles: -- 11 of 18 -- 12 An interpretation clause of this kind is not meant to prevent the word receiving its ordinary, popular, and natural sense whenever that would be properly applicable; but to enable the word as used in the Act, when there is nothing in the context or the subject-matter to the contrary, to be applied to some things to which it would not ordinarily be applicable." ((1883) 8 App Cas 798, at p. 801; see also Favelle Mort Ltd v Murray (1976) 8 ALR 649, at p. 656) The difficulty here is that, before one can determine what the "thing" listed in the Schedule "includes", one must decide whether the "thing" is a "building" or a "place". Neither "building" nor "place" is defined in the Heritage Buildings Protection Act 1990 or the Acts Interpretation Act 1954. Neither is a technical term, so it is necessary to look to the ordinary meaning of the terms. In the case of "building", dictionaries speak of "permanent fixed thing built for occupation (house, school, factory, stable, etc.)" (The Australian Concise Oxford Dictionary, 1988, p. 129) and "a substantial structure with a roof and walls, as a shed, house, department store, etc." (The Macquarie Dictionary. 2nd edn, 1991, p. 235) "Place" is defined by dictionaries to mean such things as "particular part of space; part of space occupied by person or thing .... group of houses in town etc.; residence, dwelling, (he has a place in the country; come round to my place); ... building or area devoted to specified purpose (place of amusement, worship; bathing - place)" (The Australian Concise Oxford Dictionary, 1988, p. 831) and "1. a particular portion of space, of definite or indefinite extent ... 3. the portion of space occupied by anything; 4. a space or spot, set apart or used for a particular purpose: a place of worship. ... 18. an open space, or square, in a city or town. 19. an area, esp. one regarded as an entity and identifiable by name, used for habitation, as a city, town, or village. 20. a building. 21. a part of a building " (The Macquarie Dictionary 2nd edn, 1991, p. 1352). Despite the range of meanings which each of those terms can bear in ordinary usage, the use and context of the terms in paragraphs (a) and (bl of the definition of "heritage building" strongly suggest that "building" denotes a substantial structure and "place" denotes an area. From such basic concepts the definitions extend to include the matters listed in the respective paragraphs. The address of the "heritage building" at 121 Wickham Terrace given in the Schedule is a means of identifying, by reference to its location, the structure which is the -- 12 of 18 -- 13 relevant "heritage building". It does not, expressly or by necessary implication, mean that the land is part of the "heritage building". Accordingly, for present purposes, the applicable part of the definition is: "'heritage building' means 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... ". The reference to "other appurtenance" after "any fence" suggests that paragraph only refers to structures. As there is no evidence about any appurtenances (structural or even incorporeal) in this case it is not necessary to express a concluded view on the scope of paragraph (a). The appellant points to two decisions of the English Court of Appeal in support of the view that the appurtenances to a building include those parts of the surrounding land which are closely connected with the use of the building (Trim v Sturminster Rural District Council [1938] 2 KB 508, 2 All ER 168; Methuen-Campbell v Walters [1979] QB 525, 1 All ER 606). The facts and statutory provisions in those cases are distinguishable from the facts and statutory provision in the present case. The decisions do not advance the appellant's case. Support for the conclusion that the legislation applies only to the structures on the land can be obtained by comparing the entry in the Schedule concerning Ballow Chambers with other entries which more readily fit into paragraph (b) of the definition of "heritage building", such as: War Memorial & Memorial Park - Park St & Yeates Ave, Boonah Brisbane Botanic Gardens - 14 7 Alice Street, Brisbane Anzac Square - 228 Adelaide Street, Brisbane Athol Place - 303 Wickham Tee, Brisbane Bulimba Park - bounded by Oxford, Stuart & Goodwin Sts, Bulimba Cemetery - Hedley Ave, Nundah Ithaca War Memorial & Park - Enoggera Tee, Paddington Magnolia Farm - 106 McCullough St, Sunnybank War Nurses Memorial & Park - Bourbong & Takalvan Sts, Bundaberg -- 13 of 18 -- 14 Cemetery - Joskeleigh War Memorial and Heroes Avenue from Railway Station down Wyndham & Bungil Streets to Cenotaph, Roma Japanese Cemetery - Thursday Island Remains of Corduroy Road Toowoomba - Ipswich Road, Laidley Mt Morgan Mine Site - Mt Morgan This interpretation does not make nonsense of the sections of the Heritage Buildings Act generally or of their application in this case. The terms of the Act show that it was intended to operate in respect of "buildings" and "places". For example, one of the five meanings of "develop" in section 3(1) is "change landscape or natural features". That meaning was clearly applicable where "heritage building" was a place and included "any natural feature within the boundaries of the place". The disjunctive list of meanings of "develop" shows that that particular meaning need not and would not app(y to every "heritage building". The appellant also suggests that the definition of "subdivide" in section 3( 1) necessarily applies to the land on which Ballow Chambers rests. But the definition can quite sensibly apply to a building where a subdivision may otherwise be made in accordance with law. As a matter of statutory interpretation it is not necessary to find that it must also apply to the land in cases where the thing listed as a heritage building is a building. Section 17 provided that a restoration order "may" be made where a person was convicted of an offence such as unlawfully demolishing a heritage building. It was not an inevitable consequence of conviction that a restoration order would be made. It is possible that the actual removal or destruction of the whole of Ballow Chambers would not have been followed by the making of a restoration order . The appellant contends that section 17 can have effect where a building is demolished, because the ordinary meaning of the word "restoration" can quite sensibly be applied in such circumstances. In its submission the various dictionary definitions are all quite consistent in application to the rebuilding of a demolished heritage building upon the vacant land which previously supported it. Consequently, there are circumstances where the application of the Act could lead -- 14 of 18 -- , \ 15 to the imposition upon the owner of vacant land of an obligation to restore the heritage building which previously existed on that land. The Valuer-General submits that it is unnecessary to analyse the situation in that way because the statutory fiction is not that the building has been demolished but rather that "the improvements did not exist". True it is that the Valuation of Land Act 1994 requires the making of an assumption that "the improvements did not exist" when determining the unimproved value of improved land. But given that the Heritage Buildings Protection Act 1990 applied in respect of the "heritage building", one cannot proceed on the basis that the structure known as Ballow Chambers had never existed. A consideration of what would happen on the land if the building were to be destroyed is a means of testing whether the restriction imposed by the Heritage Buildings Protection Act 1990 runs with the land. Tflat much can be inferred from the second of the alternatives in the passage quoted earlier from the decision of Sugerman J in the Rand wick Munici pal Council case ( ( 1960) 5 LGRA 387, at p. 395). To adapt slightly His Honour's words, where the existence of particular improvements on the land at some anterior time is merely part of the history of the imposition of restrictions on the use of the land (that is, as furnishing a reason or motive for their imposition) there is no ground for regarding those restrictions as, in the relevant sense, attributable to or inherent in the improvements. Where it does not appear from the relevant legislation that actual removal or destruction of the improvements would operate by way of discharge or variation of the restrictions then, (if it must be assumed that the improvements had not been made) it does not follow that the restrictions must be taken as not having been imposed. In my view, the existence or nature of the statutory restrictions imposed by the Heritage Buildings Protection Act 1990 depended upon the presence of certain specified improvements. If Ballow Chambers had been removed or destroyed, there would have been a discharge or variation of the restrictions. In other words, the restrictions would have departed with the improvements to which they were attributable. -- 15 of 18 -- 16 Section 18 highlighted the distinction between buildings and land and was the only provision under which action could have been taken to affect the land. As noted earlier in these reasons, that section empowered the Minister "at any time" to make a non-dealing order "in relation to a heritage building". Only when a non- dealing order was made and registered or recorded in accordance with that section would there have been a prohibition on any right or interest being created in relation to "that land" for that period contrary to that order or variation. In other words, unless and until an order was made there was no restriction on the use of the land which arose from the presence of the heritage building on the land and which could survive its removal from the land. Because a non-dealing order could only be made "in relation to a heritage building" and would concern dealings "in respect of the heritage building", all dealings with the land subsequent to the registration or recording of that order would be subject to the terms of the order (that is, terms- "in relation to", or "in respect of" the heritage building).. If the heritage building were to be notionally or actually removed from the land then there would have been nothing in respect of which a non-dealing order could have been made. In the present case I note for completeness that a non-dealing order was not made in respect of the subject land. That is relevant because it is "the restrictions upon its use actually in operation at the valuation", or at least actually proposed, which must be taken into account (see Randwick Municipal Council case (1960) 5 LGRA, at p. 395; Stubberfield v The Valuer-General [1991 l 1 QdR 278). Finally, I note that section 21 also alluded to the distinction between buildings and the land on which they stand by providing that the provisions of the Heritage Buildings Protection Act 1990 were in addition to the provisions of any Act or law that regulate or restrict the demolition, development or subdivision of "land or buildings". In summary, the Heritage Buildings Protection Act 1990 could be described as interim legislation intended to prevent the uncontrolled demolition of or alteration to heritage buildings. Indeed, in the Second Reading Speech, the Minister stated that the intent of the legislation was to provide "urgent but interim protection for significant items of Queensland's built heritage environment until the introduction of comprehensive built heritage legislation". Not surprisingly, the provisions of the -- 16 of 18 -- 17 legislation were directed to the protection and preservation of those buildings. Offences were created and restrictions were imposed accordingly. But, in cases like the present one, the restrictions did not run with the land. The owner of land and a heritage building on that land held the property subject to those restrictions. Had the heritage building been removed then the restrictions would have been removed (although a penalty could have been imposed on the person who occasioned that removal). When the approach taken by the Land Appeal Court in the Queensland Club case is applied to the provisions of the Heritage Buildings Protection Act 1 990 it is apparent that: (a) the existence of the heritage building on the subject land: (1) was the force motivating the imposition of restrictions (including prohibitions backed by criminal sanctions) on the use of the building; and (2) provided the basis on which a Minister could have made a non-dealing order which, for a specified period, would have meant that all dealings with the land were subject to the terms of the order; and (b) under the Heritage Buildings Protection Act 1990, the actual removal or destruction of the heritage building could have resulted in criminal penalty being imposed on the person who demolished the building (irrespective of whether that person was the owner of the land} but, in the absence of a non-dealing order, would not otherwise have affected the use to which the land could be put. In the present case, the restrictions imposed by the Heritage Buildings Protection Act 1990 applied to the "heritage building" which was a structure on the land at 121 Wickham Terrace. The restrictions imposed by that Act were dependant on the presence of the improvements. In determining the unimproved value of the land, the Valuer-General was obliged to assume that the structure did -- 17 of 18 -- 18 not exist. As a consequence the statutory restrictions must be regarded as having departed with the notional removal of the improvements to which they were attributable. Similarly, the actual removal or destruction of the heritage building would have operated by way of a discharge of the restrictions (if any) on the subject land. Consequently, the effect which the inclusion of the heritage building had on the value of the subject land in its improved state must be disregarded when determining the unimproved value of the land. Order The appeal is dismissed and the valuation of the Valuer-General is affirmed . GJ Neate Member of the Land Court. -- 18 of 18 --