Department of Natural Resources and Mines v Body Corporate for "The Astor Terrace Car Park"
[2003] QLAC 46
•25 June 2003
LAND APPEAL COURT OF QUEENSLAND
CITATION: Department of Natural Resources and Mines v Body Corporate for "The Astor Terrace Car Park" & Anor [2003] QLAC 46 PARTIES: Chief Executive, Department of Natural Resources and Mines
(appellant)v. Body Corporate for "The Astor Terrace Car Park" Community Titles Scheme and Body Corporate for "The Astor Centre" Community Titles Scheme
(respondents)FILE NO: LAC2003/0003 DIVISION: Land Appeal Court PROCEEDING: An appeal from a decision of the Land Court in the determination of unimproved values - Valuation of Land Act 1944 ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 25 June 2003 DELIVERED AT: Brisbane HEARD AT: Brisbane JUDGE
MEMBERSJustice Mullins
Mr RE Wenck
Mrs CAC MacDonaldORDERS: 1. The appeal is dismissed.
2. The application for costs thrown away, as a result of the adjournment application not proceeding on 11 February 2003, is refused.
CATCHWORDS: Valuation of property - Valuation of Land Act 1944 (Q) - Valuation for rental purposes - Value of stratum - Method of valuation - Road licences granted over stratum for pedestrian overpass - Where subject stratum rateable for the purposes of the Act - The valuation of the subject stratum for rental purposes for each road licence to be determined having regard to s.14, s.15 and s.23 of the Act. APPEARANCES: Mr J O'Rourke, Principal Legal Officer, for the appellant
Mr G Allan for the respondentsSOLICITORS: Legal Services, Department of Natural Resources and Mines for the appellant
Russell Hanley & Johnson for the respondents
On 28 November 2002 the learned Member, Dr NG Divett, upheld the appeals of the Body Corporate for "The Astor Terrace Car Park" Community Titles Scheme ("Car Park Body Corporate") and the Body Corporate for "The Astor Centre" Community Titles Scheme ("Astor Centre Body Corporate") (to which we will refer collectively as "the respondents") and determined the unimproved values for rental purposes in respect of AV2001/0642 to be $8,000 and for AV2001/0643 to be $8,000. The Chief Executive, Department of Natural Resources and Mines ("the Chief Executive") appeals against this decision of the learned Member.
Background
The valuations are in respect of stratum at Portman Lane, Spring Hill described as Lot 675 on Plan SL11889 in the Parish of North Brisbane (being a road closed in stratum) and otherwise identified as a viaduct above Portman Lane which has the effect of connecting the fourth floor of the building known as the Astor Centre and the fourth floor of the building known as the Astor Terrace Car Park. The viaduct is used as a pedestrian overpass between the two buildings. The area of the stratum is 19m².
The stratum is directly connected to an easement for access purposes in the Astor Centre (Easement 601149563) which allows right of way through the Astor Centre building to Upper Edward Street. That easement is in favour of the owner of the Astor Terrace Car Park and its agents, servants, workmen, customers, visitors, licensees and occupiers. The Astor Terrace Car Park contains office accommodation on the fourth level. The tenants of the Astor Terrace Car Park also have access to the directory board in the ground floor foyer of the Astor Centre. The right to use the stratum is not, as of right, open as a public thoroughfare. The joint tenants lock the subject viaduct in the early hours of the morning.
The stratum is part of the gazetted roadway of Portman Lane and therefore is not zoned. The two properties connected by the viaduct are located within the High Rise Commercial Precinct of the Petrie Terrace and Spring Hill Development Control Plan of the Brisbane City Council Town Plan of 1987 effective at the date of valuation of 1 October 2000.
Each of the respondents holds a road licence in respect of the stratum that was granted under the Land Act 1962 but to which the Land Act 1994 ("the Land Act") now applies. The licence held by each respondent contemplates that the stratum will be used as a pedestrian overpass by both respondents.
Section 5(2) of the Land Act provides that layers and strata above and below the surface of land may be dealt with under the Land Act. It was common ground that the rent for each of the road licences was specified by s 183(1) of the Land Act which requires the rent for a licence to be the amount calculated by multiplying the amount of the most recently made valuation for rental purposes by the rate prescribed under the regulations. The expression "valuation for rental purposes" is defined in the Land Act to have the same meaning as in the Valuation ofLand Act 1944 ("VLA"). In s 2 of the VLA the expression "valuation for rental purposes" is defined to mean "the valuation under section 15 of land in a lease, licence or permit granted or issued under the Land Act1994".
Section 15 of the VLA expressly deals with valuation for rental purposes:
"Valuation for rental purposes
15.(1) The value to be used to determine the rent applying to a lease, licence or permit under the Land Act 1994 is the unimproved value under this Act.
(2) However, sections 3(4) and 25 do not apply to the determination of a valuation of land for rental purposes for the financial year starting on 1 July 1993 and subsequent years.
(3) For the purposes of a valuation for rental purposes, if the
conditions of the lease, licence or permit are not restricted to farming or to a use as a single dwelling house as defined in section 17(2)—
(a) section 17(1) does not apply; and(b) in the case of land other than land used for farming—the physical state and condition of the land at the start of the lease, licence or permit (other than improvements within the meaning of the Land Act 1994) is to be considered."
Section 14 of the VLA expressly deals with the unimproved value of land that is not granted in fee simple:
"Deciding unimproved value of certain land
14.(1) For the purpose of deciding the unimproved value of land that is not granted in fee simple, the land is taken to be land granted in fee simple.
(2) For the purpose of deciding the unimproved value—(a) of land held from the Crown for an estate of leasehold upon a tenure which is subject to any restriction, limitation, or other onerous covenant or condition; or
(b) of land (whether freehold or land held from the Crown for an estate of leasehold) the use whereof is restricted or limited for that the appropriate local government has given due notice of the realignment of any road whereon that land abuts;
the unimproved value of the land must be ascertained without regard to the restriction, limitation or other covenant or condition.
(4) A valuation of the unimproved value of any land made under this part shall take into account the existence and effect of any easement, registered under any Act, in respect of which such land is the dominant tenement or the servient tenement.
(5) In making, under this part, the valuation of the unimproved value of any land—(a) in respect of which a stock grazing permit granted under the Forestry Act 1959, section 35 , the National Parks and Wildlife Act 1975, section 33 or the Nature Conservation Act 1992 is in force; or
(b) in a lease, licence, permit or permission to occupy under the Land Act 1994 or granted or issued by the coordinator-general or the chief executive of the department responsible for the administration of the Forestry Act 1959; or
(c)in a lease from Queensland Rail; or
(d)subject to a heritage agreement under the Queensland Heritage Act 1992, part 6;
the unimproved value of that land shall be determined having regard to and making proper allowance for any restriction or limitation of use having regard to the purpose and conditions to which that permit, lease, licence permission to occupy or agreement is subject."
On 26 February 2001 the Chief Executive issued to each of the Car Park Body Corporate and the Astor Centre Body Corporate a valuation under the VLA in respect of the unimproved value of the stratum as at 1 October 2000 to be used as the basis for State land rental with effect from 30 June 2001. The valuation for the subject stratum issued to the Car Park Body Corporate was $20,000. The valuation for the subject stratum issued to the Astor Centre Body Corporate was $30,000. Each of the respondents lodged an objection. The notice of objection in each case mistakenly showed that the objection was in respect of rating rather than rental. The Chief Executive sent a letter dated 21 August 2001 to convey the decision that each objection was disallowed. That letter made no reference to the purpose of the valuation. The values determined by the Chief Executive remained unaltered. This resulted in the appeals which were determined by the learned Member. Each appeal was described in the notice of appeal to the Land Court as an appeal against the Chief Executive's decision on objection against the unimproved value used as a basis for State land rental.
Decision of the learned Member
The learned Member noted at para [7] of his reasons that "both parties agree that the value of the subject land for rating purposes is zero". The learned Member stated at para [11] of his reasons:
"If clearly there was agreement that the subject land was not land to be valued for rating purposes, or that it had a zero value for that purpose, then the outcome of the objection conference was unlikely to have reflected any disagreement between the parties. Certainly the letters of 21 August 2001 suggest that the objections had been refused, and the unimproved values remained. On the evidence I accept the common understanding that these are appeals against the unimproved values for rental purposes (Transcript 49), and this Court has jurisdiction to hear the matters."
Before the learned Member the respondents relied on the evidence of valuer Mr KP Walsh and the Chief Executive relied on the evidence of valuer Mr R Lund. The learned Member had to resolve the difference between the valuers in their approaches to the application of the VLA. Mr Walsh applied s 23 of the VLA while Mr Lund applied s 14 and s 15 of the VLA. The learned Member at para [74] of his reasons determined that the valuation for rental purposes of a stratum above a road, as provided for under the Land Act should be considered under each of s 14, s 15 and s 23 of the VLA as applicable in the circumstances.
The learned Member accepted Mr Walsh's approach of valuing the stratum as if it were a freehold parcel of 19m² in its location across Portman Place and attached to the two buildings and on the basis that in any hypothetical sale, the most likely purchaser would be the owners of the Astor Centre. The learned Member referred to the history of the development of the two buildings as suggesting that the Astor Centre would have the greater need for the continued pedestrian access connection.
The learned Member valued the stratum parcel consistent with the rate of $2,089 per square metre which was the market value of the Astor Centre, the reasoning being that the value of the actual stratum should be seen in the context of the market value of the parcels to which it is attached. As that rate of $2,089 per square metre reflected a freehold title land parcel, the learned Member accepted that a rate of 40% of that value would reflect the value of the stratum. The learned Member therefore determined the value of the stratum at $16,000. Then, having regard to the non exclusive use of the stratum consequent upon the purpose and conditions to which each licence was subject pursuant to s.14(5)(b) of the Valuation of Land Act, the learned Member adopted Mr Walsh's approach of apportioning the value to each of the licences at 50% of the total value of the stratum parcel. That was how the learned Member reached the conclusion that unimproved rental values of $8,000 should be applied to each of the two licences.
Grounds of appeal
There were seven grounds of appeal listed in the notice of appeal. Grounds 1 to 4 were covered by ground 7. The grounds which remained in issue at the hearing of the appeal were grounds 5, 6, 7(a) to (d) and 7(f) to (j):
"5. That leave should not have been granted under R.23(3) in respect of the evidence of Mr. Walsh.
6. That the Court had no jurisdiction as an objection to a rental valuation had not been lodged
7. The learned Member erred in that he:
(a) concluded that S.23 of the Valuation of Land Act, 1944 applied
(b) failed to accept that there were two 'parent parcels'(c)accepted that the most likely purchaser of the stratum parcel was the owners of the 'Astor Centre'
(d)subject to (f) below, accepted the value of the stratum parcel as $2,089m²
…
(f)failed to adequately take into account uses other than car parking in the 'Astor Terrace Car Park'
(g)failed to properly apply S.5(2) of the Land Act, 1994 in relation to the existence of strata interests
(h)did not separately determine the value for rental purposes of each road licence in accordance with S.183(1) of the Land Act, 1994.
(i)Accepted that the valuation of each licence should be reduced by 50% because of non-exclusive use.
(j)Failed to reject the valuation evidence of Mr. Walsh when such evidence was centred on S.23 of the Valuation of Land Act, 1944."
Ground 5
"That leave should not have been granted under R.23(3) in respect of the evidence of Mr Walsh."
Under r 23 of the Land Court Rules 2000 the report of each expert was required to be provided to the other party by 1 August 2002. Mr Lund's report was provided to the respondents on 1 August 2002 which was 21 days before the hearing of the appeal before the learned Member commenced on 22 August 2002. The Chief Executive did not receive Mr Walsh's report until 6 August 2002. At the hearing the learned Member gave leave to the respondents to call evidence from Mr Walsh. When the objection was taken on behalf of the Chief Executive to the lateness of Mr Walsh's report, there was no suggestion made that any prejudice had been suffered by the Chief Executive. For the purpose of this appeal the respondents' solicitor filed an affidavit dealing with the circumstances which resulted in Mr Walsh's report being provided to the Chief Executive on 6 August 2002. Those circumstances are not disputed by the Chief Executive. They only reinforce the correctness of the decision of the learned Member to give the leave to the respondents to rely on Mr Walsh's report. Even without that further affidavit, there is no basis shown to interfere with the learned Member's discretion in giving that leave.
Ground 6
"That the court had no jurisdiction as an objection to a rental valuation had not been lodged."
In each case, the only valuation which had been issued to which an objection could be made was the valuation for rental purposes. Despite the error in the objection, the Chief Executive quite properly treated each objection as one made against the valuation for rental purposes. There was therefore no error in the learned Member's conclusion that the appeals to the Land Court were properly instituted and that the Land Court had jurisdiction to hear the appeals against the Chief Executive's decision on objections against the unimproved value for rental purposes.
Ground 7(a)
"The learned Member erred in that he concluded that S.23 of the Valuation of Land Act 1944 applied."
As it was common ground before the learned Member that the value of the subject land for rating purposes was zero, it appears that the stratum was treated as being neither rateable nor taxable. This raised a potential difficulty with the application of the VLA as the only provision specifically directed at valuing the unimproved value of a stratum is s 23 which provides:
“Chief executive may value stratum or volumetric lot
23.(1) Subject to any other Act the chief executive may make a valuation of the unimproved value of any stratum or volumetric lot in accordance with this section.(2) The unimproved value of a stratum or volumetric lot is the capital
sum which the fee simple of the stratum or volumetric lot might be
expected to realise if offered for sale on such reasonable terms and
conditions as a bona fide seller would require assuming—(a) that the improvements (if any) within the stratum or volumetric lot and made or acquired by the owner or the owner’s predecessor in title had not been made; and
(b)however, where the stratum or volumetric lot is wholly or partly in an excavation it shall be assumed that the excavation of the stratum or volumetric lot had been made; and
(c)that means of access to the stratum or volumetric lot may be used, and may continue to be used, as they were being used, or could be used, on the date to which the valuation relates; and
(d)that lands outside the stratum or volumetric lot, including land of which the stratum or volumetric lot forms part, are in the state and condition existing at the date to which the valuation relates and, in particular, without limiting the generality of this assumption, that where the stratum or volumetric lot consists partly of a building, structure, or work or is portion of a building, structure, or work, such building, structure, or work, to the extent that it is outside the stratum or volumetric lot, had been made.
(3) Notwithstanding anything in subsection (2), in determining the
unimproved value of a stratum or volumetric lot it shall be assumed that—
(a)the stratum or volumetric lot may be used, or may continue to be used, for any purpose for which it was being used, or for which it could be used, at the date to which the valuation relates; and
(b)such improvements may be continued or made in the stratum or volumetric lot as may be required in order to enable the stratum or volumetric lot to continue to be so used;
but nothing in this subsection prevents regard being had, in determining that value, to any other purpose for which the stratum or volumetric lot may be used on the assumptions set forth in subsection (2).
(4) This section does not apply to any stratum or volumetric lot that is a mining lease.
(5) In this section—'stratum' means a part of land consisting of a space or layer
below, on, or above the surface of the land, or partly below and partly above the surface of the land, defined or definable by reference to improvements or otherwise, whether some of the dimensions of the space or layer are unlimited or whether all the dimensions are limited, but refers only to a stratum rateable or taxable under any Act.
'volumetric format plan of subdivision' means a volumetric format plan of survey for dividing 1 or more lots.
'volumetric format plan of survey' means a plan that defines land using 3 dimensionally located points to identify the position, shape and dimensions of each bounding surface.
'volumetric lot' means a lot on a volumetric format plan of subdivision rateable or taxable under any Act."
Before the learned Member the Chief Executive relied on the restriction placed on the definition of "stratum" for the purpose of s 23 of the VLA, contained in subs (5), that stratum refers only to a stratum rateable or taxable under any Act. The issue for the learned Member was whether the classification of the stratum as not "rateable or taxable" precluded consideration of the parcel under s 23 of the VLA. The learned Member concluded that there was nothing in the VLA to prevent the Chief Executive from using s 23 to value the stratum for rental purposes, even if the stratum were not rateable or taxable.
On the hearing of this appeal each of the parties adopted a different approach to the question of the application of s 23 of the VLA. Mr O'Rourke for the Chief Executive indicated that he was now of the view that the stratum may have been rateable or taxable. The respondents argued that if s 23 of the VLA did not apply to the valuations, then the learned Member ought to have found that they had been made ultra vires and were nullities.
The subject stratum is situated within the City of Brisbane. Section 47 of the City of Brisbane Act 1924 specifies what land is rateable. The definition of "land" for the purpose of that Act is that set out in s 36 of the Acts Interpretation Act 1954:
"'land' includes messuages, tenements and hereditaments, corporeal or incorporeal, of any tenure or description, and whatever may be the interest in the land."
"Interest" is defined by s36 to mean, in relation to land or other property -
"(a) a legal or equitable estate in the land or other property; or
(b)a right, power or privilege over, or in relation to, the land or other property."
The interest of each respondent in the relevant road licence over the stratum is therefore land for the purpose of s 47 of the City of Brisbane Act 1924. Under s 47(1) of that Act all land is rateable, unless it falls within one of the exemptions which are specified in the provision. None of these exemptions applied to the interest of each respondent in the stratum.
Section 62(1) of the City of Brisbane Act 1924 relevantly provides that the owner for the time being of land is liable to pay any rate levied by the council that is applicable to the land. The definition of “owner” is that found in s 4 of the Local Government Act 1993 and includes a licensee under the Land Act (see s.2 City of Brisbane Act 1924).
It is therefore contemplated by the City of Brisbane Act 1924 that a licensee of land under the Land Act will be liable for the rates in respect of that land. The licensee’s interest in the land has the consequence of making the land rateable. The subject stratum is no different to any other land.
The requirement under s 23(5) of the VLA is satisfied if the stratum is rateable. It is not necessary to show that rates have been levied in respect of the stratum.
In Commissioner for Railways v Valuer-General [1973] 3 All ER 268, the Privy Council considered the effect of the introduction, in 1961, of s.7B and the insertion of a definition of "stratum" into s.4(1) of the Valuation of Land Act 1916 (NSW). Section 7B and the definition of "stratum" are virtually identical with subsections (2) and (3) and the definition of "stratum" in s.23 of the VLA. Lord Wilberforce said (at 280) that the effect of the amendments was to draw a dichotomy between land which is stratum (as defined) and all other land and (at 282) that the process of valuation required by the Act involved determining the character of the subject matter to be valued - land, or strata, and the use of the correct applicable formula.
As the subject stratum is rateable, the Chief Executive may then value it in accordance with s.23 of the VLA. Although we have followed a different route than the learned Member to conclude that s.23 of the VLA is applicable, the same conclusion has been reached. The unimproved value of the stratum would be as defined in subs.2 with the assumptions set out in (a) to (d) inclusive in the subsection. Should any of those assumptions be relevant in a particular case, then the valuation would be made on that basis.
Although the valuation is of stratum in a licence, we find that s.14 and relevantly subs.(5)(b), and s.15 of the VLA are also applicable. That is in keeping with the opinion expressed by the learned Member at para [74] of his reasons.
An unimproved valuation of stratum which is not rateable or taxable would not be ultra vires the VLA, if it was made for rental purposes in accordance with the Land Act, because of the stipulation in s.15(1) of the VLA as to how the valuation for rental purposes is to be arrived at. If it happened that the land the subject of the valuation for rental purposes was stratum but not qualifying to be valued in accordance with s.23, then the assumptions (a) to (d) in subs.2 would not require consideration in the valuation process. Unimproved value would then be found in accordance with the relevant provisions of ss.14 and 15 of the Valuation of Land Act.
Our finding that there is no substance to Ground 7(a) also disposes of Ground 7(j).
Ground 7(b)
"The learned Member erred in that he failed to accept that there were two 'parent parcels'."
To the contrary our reading of the learned Member's reasons leave us in no doubt that he accepted that there was one stratum over which two licences were granted, one each for the benefit of two separate "parent parcels". It is clear that in the end result he accepted the respondents' valuer's opinion that the capital sum which the fee simple of the stratum might be expected to realise was influenced in a dominant manner by the parent parcel which possessed the higher pro rata unit of area value.
Ground 7(c)
"The learned Member erred in that he accepted that the most likely purchaser of the stratum parcel was the owners of the 'Astor Centre'."
That was a finding of fact which was open to the learned Member. The finding was based on the respondents' valuer's opinion as to the worth of the stratum to the owners of the "Astor Centre", the adjoining land which had been considered to have the dominant interest in acquiring the subject stratum, if offered for sale.
If that finding was wrong the result would be of little real consequence because, had the owner of the opposing adjoining land been the more likely purchaser it would hardly be regarded as prudent for that owner to be prepared to pay more than its open market value in the competitive circumstances which limited the extent of potential purchasers.
Grounds 7(d) and (f)
"The learned Member erred in that he:
(d)subject to (f) below accepted the value of the stratum parcel as $2,089 m²
(f)failed to adequately take into account uses other than car parking in the 'Astor Terrace Car Park"
The learned Member's finding of fact relative to (d) was open to him, and in finding the unimproved valuation of the stratum he took into account the factors relevant to that valuation including the competitive forces relevant to the particular market associated with the stratum. That is seen to be clear from the learned Member's comments in para [75] of his reasons. There is seen to be no substance in these grounds of appeal.
Ground 7(g)
"The learned member erred in that he failed to properly apply S.5(2) of the Land Act 1994 in relation to the existence of strata interests"
The decision of the learned Member found the unimproved value of the stratum interests. There is seen to be no substance in this ground of appeal.
Ground 7(h)
"The learned Member erred in that he did not separately determine the value for rental purposes of each road licence in accordance with S.183(1) of the Land Act 1994."
The Order made by the learned Member clearly resulted in a separate determination of the unimproved value for rental purposes as that value related to each licence. There is seen to be no substance in this ground of appeal.
Ground 7(i)
"The learned Member erred in that he accepted that the valuation of each licence should be reduced by 50% because of non-exclusive use."
In fact the learned Member reduced the unimproved value of the stratum subject of the licence by 50% in each case, for reasons associated with non-exclusive use.
Section 14(5) of the V LA relevantly provides:
"In making, under this part, the valuation of the unimproved value of any land -
(b) in a … licence … under the Land Act 1994 … the unimproved value of that land shall be determined having regard to and making proper allowance for any restriction or limitation of use having regard to the purpose and conditions to which that … licence … is subject."
The respondents' valuer had transparent regard to any restriction or limitation of use of the land, as opposed to exclusive use had the land been held in fee simple, as the starting point in the valuation process. The learned Member adopted the respondents' valuer's reasoning as opposed to the oral opinion of the appellant's valuer, which was not transparent in the valuation methodology adopted.
The finding of the learned Member was open to him on the evidence and we are not persuaded on that evidence or submissions before us that, in these matters, the allowance made was not a proper one.
Conclusions and Findings
Inherent in the submissions of Mr O'Rourke for the Chief Executive, was the view that it was the "value of the licence" which was required to be found. On analysis this was consistent with the approach taken by the Chief Executive's valuer who in fact found the value which, in his professional opinion, the licence added to its "parent parcel". It seems to us that, if the parent parcel's unimproved valuation is enhanced by some positive feature, then that is something which should be identified in the unimproved valuation of the parent parcel. In matters such as this, while it may be a consideration in the reasoning process it is not the value which a licence may add to the parent parcel which is subject of the valuation. Instead it is the unimproved value of the stratum over which the licence is held which is to be found. We agree therefore with the comments of the learned Member in para [77] of his reasons.
Mr O'Rourke, in his oral submissions, argued that the actual size of the stratum over which the licence is held is somewhat irrelevant in the valuation process. The basis for his submission was that a licence over a stratum, which, as an example, may have been either longer in length or wider with a consequently larger surface area, but with similar highest and best use, may not have added value to the parent parcel greater than was the case with the subject licence. Therefore, it followed in his oral submission, that the pro rata area basis on which the learned Member determined the unimproved value must be wrong.
We accept that it could be wrong to assess the value which a licence may add to a parent parcel on the basis of the area of the licence but that is not the point. Features, such as size, dimensions, shape, location and, in terms of stratum, relationship to ground level and the surrounding environment are relevant to the worth of a stratum and it is the stratum which is subject of the valuation.
It may be in some cases, but not necessarily all, that the size of a parcel of land, including stratum, is the dominant feature of its value. However the valuation process involves identification and interpretation of the forces which influence market value. That may be a difficult task in cases where specific market evidence is scarce, as it was relative to the stratum in this matter, but an assessment of "the capital sum which the fee simple of the stratum … might be expected to realise if offered for sale on such reasonable terms and conditions" is required (see s.23(2) of the VLA).
As Carter J observed in Stubberfield v Valuer-General (FC) (1988-89) 12 QLCR 328 at pp.330-331:
"In Spencer v The Commonwealth [1907] 5 C.L.R. the High Court propounded the proper test for the assessment of land value. It is the price which a willing purchaser would at the date in question have had to pay to a vendor not unwilling, but not anxious to sell. It seems to me that that test finds statutory expression in the Valuation of Land Act … In simple terms it is synonymous with the market value of the land."
That, in our opinion, would apply with equal force to strata.
We do not accept that the methodology adopted by the Chief Executive's valuer was designed to differentiate between the added value of the licence to the adjoining land, if that was found correctly (and that is not the question before the Court), and the market value of the stratum, subject to the statutory qualifications, which was the valuer's actual task.
We do accept, as did the learned Member, that the respondents' valuer approached the task by following correct valuation principles. The market value of the stratum, if held in fee simple involved one exercise applicable to both valuations, before consideration of statutory qualifications. We make no finding as to the basis upon which market value was found other than that it was open to the Member to so find on the evidence before him.
We find no reason therefore to interfere with the learned Member's findings and dismiss the appeal accordingly.
Application for Costs
When this appeal was listed for directions by telephone on 11 February 2003 with a view to confirming the allocation of a date for the hearing of the appeal in the sittings of the court commencing 17 March 2003, the Chief Executive foreshadowed to the registrar by letter dated 5 February 2003 that an application would be made on behalf of the Chief Executive to adjourn the hearing from 17 March 2003. By the time the directions' hearing was heard on 11 February 2003, the Chief Executive had decided not to request the adjournment. In the meantime, however, counsel for the respondents had prepared written submissions opposing the application for an adjournment and forwarded those to the registrar of the court on 11 February 2003.
At the directions' hearing the respondents sought an order for costs thrown away, as a result of the application for the adjournment not proceeding. The court adjourned the question of those costs to the hearing of the appeal. At the hearing of the appeal the respondents pursued the application for those costs and the Chief Executive opposed any specific order on the basis that no costs of any significance should have been incurred in relation to the matter which was simply a request that the hearing be adjourned to another date for the reasons that were disclosed in the letter of 5 February 2003.
The only purpose of the appeal being listed on 11 February 2003 was for the making of directions relevant to the hearing of the appeal. The question of the hearing date was a matter that was able to be covered during that teleconference. A directions' hearing by teleconference is not an appropriate means for parties to pursue a contested application, unless arrangements have been made specifically for that application to be heard at the same time. The respondents obviously prepared the written submissions opposing an application for an adjournment as a matter of caution. That was the choice of the respondents. It is not a matter which should result in an order for costs in favor of the respondents when neither party had any indication from the court that such an application would be heard on the directions' hearing.
Orders
It follows that the orders which should be made are:
1.The appeal is dismissed.
2.The application for costs thrown away, as a result of the adjournment application not proceeding on 11 February 2003, is refused.
The question arises whether any order for costs should be made in respect of the appeal. That is a matter on which the court will require submissions.
MULLINS J
JUSTICE OF THE SUPREME COURT
RE WENCK
MEMBER OF THE LAND COURT
CAC MacDONALD
MEMBER OF THE LAND COURT
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