Lamb v Department of Natural Resources and Mines
[2005] QLC 38
•8 July 2005
LAND COURT OF QUEENSLAND
CITATION: Lamb v Department of Natural Resources and Mines [2005] QLC 0038 PARTIES: Frank and Joy Lamb
(applicants)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO.: AV1999/0065; AV2000/0573 and AV2003/0552 DIVISION: Land Court of Queensland PROCEEDING: Appeals against annual valuation under Valuation of Land Act 1944 DELIVERED ON: 8 July 2005 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Dr NG Divett ORDER: The appeals are upheld, the unimproved values of the Chief Executive are set aside, and the unimproved values of Lots 1 to 4 and 6 to 9 on RP 11332 are determined as follows:
· 1 October 1996 - $720,000
· 1 October 1999 - $1,560,000
· 1 October 2002 - $1,560,000
CATCHWORDS: Valuation – Heritage listed properties – Queensland Heritage Act 1992 – Unimproved value – Diminution factor imposed by restrictions – Valuation of Land Act 1944
Valuation – Nature of land – Impact of views – Risk of loss of views – Unimproved value – Valuation of Land Act 1944
Valuation – Method of valuation – History of relativity – changes in the relativity – Unimproved value – Valuation of Land Act 1944APPEARANCES: Mrs J Lamb for the appellants
Mr P Rabaa, Counsel of Crown Law for the respondent
Background:
These three matters relate to land at 9 Leopard Street, Kangaroo Point, and described as Lots 1 to 4 and 6 to 9 on RP 11332, Parish of South Brisbane. The subject land, with the official name of "Home", has an area of 3,146 square metres, and is located about 1.5 km. radially south-east of the Brisbane CBD. Kangaroo Point is a very old residential area of Brisbane, which is now experiencing major redevelopment. The subject land has a front access to Leopard Street, which is bitumen sealed with concrete kerbing and channelling. There is also rear access to Wild Street, which is a narrow service lane with bitumen carriageway and concrete kerbing and channelling. The access to the subject land is discussed later in paragraph [24].
The subject land was zoned as Residential BR4 under the Town Plan for the City of Brisbane of 30 October 1987, effective at the date of valuations at 1 October 1996, and 1 October 1999; and later as Low Medium Residential (Lots 1 to 4) and Character Residential (Lots 6 to 9), under the Brisbane City Plan 2000 of 30 October 2000, effective at the relevant valuation date of 1 October 2002. The key issues are the nature of the land, impact of heritage listing, comparable sales, relativity matters and the impact of views.
On 17 March 1997 the Chief Executive issued a valuation of the subject land at $1,050,000 for 1 October 1996. Following an objection the Chief Executive amended that figure to $970,000 on 6 January 1999. The appellants then appealed on 17 February 1999 claiming the unimproved value for that relevant period should be $300,000.
On 9 March 1998, the Chief Executive issued a valuation for 1 October 1997 at $1,050,000, and subsequently on 8 March 1999 issued a valuation for 1 October 1998 at $1,050,000. There were no appeals lodged against those valuations.
On 27 March 2000 the Chief Executive issued a valuation at 1 October 1999 for $2,400,000. Following an objection the Chief Executive confirmed that figure on 11 July 2000. The appellants then appealed claiming the unimproved value should more properly be $500,000.
On 26 February 2001 the Chief Executive issued a valuation at 1 October 2000 for $2,400,000, and subsequently on 25 February 2002 issued a later valuation 1 October 2001 for $2,400,000. Neither of those two valuations were subsequently appealed.
On 24 February 2003 the Chief Executive issued a valuation at 1 October 2002 for $2,400,000. Following an objection the Chief Executive confirmed that figure on 1 July 2003. The appellants have now appealed claiming the unimproved value should more properly be $1,000,000.
The history of those appeals are noted in the history of valuations (Exhibit 31). It may be summarised by noting that there were only three outstanding appeals before this Court, which are relevant to this decision. A subsequent appeal lodged in respect of a valuation at 1 October 2004 is a separate matter, and is not for my consideration at this time. From Mrs Lamb's evidence it is possible that an objection by the appellant against the valuation of $1,050,000 1 October 1997, which was lodged with the department after its issue on 9 March 1998, was understood as a formal appeal. However the previous 1 October 1996 objection was partly agreed to with the respondent with the valuation of $970,000 issued on 6 January 1999, and the appellants then appealed that valuation on 17 February 1999. There is no evidence of any decision on any objection against the 1 October 1997 valuation, which had been issued on 9 March 1998.
Joy Lamb appealed and gave evidence for the appellants. Mr P Rabaa, Counsel of Crown Law appeared for the respondent, calling evidence from Arend Boudewyn Van Hees, the departmental registered valuer responsible for determining the valuations at 1 October 1999 and 1 October 2000. Mr Van Hees also now accepts responsibility for the valuation at 1 October 1996, which had been previously completed by another registered valuer (Mr Ryland) who is no longer available to defend that valuation.
At the request of both parties a joint site inspection of the subject land and much of the wider evidence was undertaken by the Court. As a self-represented litigant, Mrs Lamb was extended some latitude by the Court to assist her in focussing her argument. However that latitude did not exceed guidance to the Court in such matters as explained later.
During the hearing of the merits on appeal AV1999/0065, Mrs Lamb was granted leave to amend her estimate of the unimproved value at 1 October 1996 from $300,000 to $500,000, which is the figure then appealed for (transcript 132). However following further examination of her evidence to that period, Mrs Lamb continues to argue for a lower valuation of $300,000 (transcript 1039).
History of valuations of the subject land –
Mrs Lamb explains that the history of valuation of the subject land, and its adjoining parcels at 19 and 29 Leopard Street, had remained consistent for many years until the valuations by Mr Ryland at 1 January 1996. She advises that following her objection against a large increase at 1 January 1996 to $425,000 for the adjoining property at 19 Leopard Street (on behalf of the owner Miss Lamb), Mr Ryland and his senior adviser (Mr Muir) visited that site. During those discussions it was agreed that 19 Leopard Street was not a multi-unit site, and the unimproved value at 1 January 1996 was reduced to $170,000 on 26 March 1996. The subsequent valuation at 1 October 1996 for 19 Leopard Street was $187,500. The appellants had occupied 19 Leopard Street from 1978 to 1996.
Mrs Lamb advises that both 9 Leopard Street (the subject land) and the adjoining parcel at 19 Leopard Street, had been in the common ownership of the late Miss Lamb, who died in 1994, and whose family purchased 19 Leopard Street from the Queensland National Bank in 1940. That property had formerly been a rental property for the bank since it was resumed from the previous owner (Captain McGregor) about 1893. The Lambs purchased the subject land in 1901, and then built the dwelling at 9 Leopard in 1902/3. The old dwelling upon 19 Leopard Street was built about 1890.
Mrs Lamb further advises that while Mr Ryland had agreed to reduce the unimproved value at 1 January 1996 to $170,000, because of the agreed single residence status of 19 Leopard Street, he had noted that property did in fact have City views to the north at that date. However Mrs Lamb advises that any City views at that period had only occurred because of a severe storm which had damaged the Camphor Laurel ornamental trees to the north of the subject land near the adjoining land at 1 Leopard Street. She advises that the old dwelling (Green) upon 1 Leopard Street (Lot 5) had existed since 1899 until it was removed in 1986. The damaged trees were reduced to fence height following that severe storm, thus opening up the City views to 19 Leopard Street, which had formally been blocked by the Green dwelling.
Mrs Lamb further explains that the earlier owner of 1 Leopard Street (Green) had occupied that parcel as a large family dwelling for many years. Mr Green was a former Councillor of the South Brisbane Town Council prior to its amalgamation into Brisbane City in 1925. The Green dwelling had been extended until it later encroached out on to the road reserve area to the north (River Terrace). (Note the areas shown on the 1984 feature survey in Exhibit 9). Mrs Lamb argues that Mr Green had unsuccessfully sought to purchase the adjoining Lot 6 from the Lambs in order to better reshape Lot 5 as, in her opinion, the adjoining land to the west of Lot 5 (Lot 21) had inferior foundations. She advises that Mr John Lamb had an unofficial agreement with the previous owner of the vacant land at 9 Leopard Street (Mr Lang) that Mr Lamb would not sell Lot 6 to the Greens. While that condition of sale was never formalised, it remained a priority for the Lamb family.
Mrs Lamb argues that when 1 Leopard Street (Lots 5 and 21) were later purchased from the Green estate in 1986, it had been on the understanding that the old dwelling had to be removed. The beneficiaries had seen that parcel as a multi-unit site for redevelopment. Mrs Lamb argues that it was on that understanding that the new owner (Harburg) purchased those two parcels. She provides evidence of subsequent unsuccessful applications for that purposes, as well as for road closure of part of River Terrace as supporting her assertions which are discussed later in paragraph [120].
Mrs Lamb argues that the previous and current owners of the adjoining Lots 5 and 21 have always seen that parcel as a multi-unit site, and not as a single residence site. She notes that the combined area of Lots 5 and 21 was less than the minimum area of 1,200 square metres needed for a multi-unit development purpose. Mrs Lamb advises further that both the previous purchasers in 1986 (Harburg) and the current owner more recently (Lasrado) have both approached the appellants unsuccessfully to purchase land from the subject property (Lot 6) with no success. A later attempt to negotiate a settlement is discussed in paragraph [123].
Mrs Lamb then advises that following an unsuccessful application to Council to develop 1 Leopard Street, Mr Harburg took that property to public auction in 1992 and 1999. While the 1992 auction had proved unsuccessful, subsequent to the actual auction in 1999, Mr Harburg had negotiated a private agreement with the current owner (Lasrado) which is discussed later.
In summarising her understanding of the history of the subject land, Mrs Lamb advises that she had made several unsuccessful attempts to negotiate to have the Commonwealth, State and Local Government seek to bring the subject land under some form of public interest tenure (such as a Public Trust) to protect the future of that historic property, something along the lines of the Mayne Estate. Following a rejection of such a proposal by the then Council Lord Mayor in 2003, a joint Commonwealth and State Governments agreement had been pursued, with no finalisation to date.
Mrs Lamb argues that while the Lamb family premises had been one of a private family arrangement, the continuous occupation of that historic dwelling since 1902 should be preserved for future generations. She notes that the Lambs had been owners of one of several large major Queen Street department stores for many years until after World War II. The appellants are reluctant to sign over total ownership of the heritage property, as they do not have confidence that the Government will not divest itself later of the costly responsibilities of maintaining that property, as demonstrated in recent times by the Government at Yungaba.
The nature of the land –
The subject land is irregular in shape, with four lots (Lots 6 to 9) fronting Leopard Street, and four lots (Lots 1 to 4) fronting Wild Street. The Leopard Street lots have an easterly aspect and the Wild Street lots have a southerly aspect. The subject land is above street level on each frontage, and falls about 3 metres from south-west to north-east. The subject land is an inside parcel, with the adjoining 19 Leopard Street located at the corner of Leopard and Wild Streets. There are two lots to the north of the subject land at 1 Leopard Street (Lots 5 and 21). There is a seven storey multi-unit building to the west of the subject land (Building Unit Plan 4148 – formerly "Alta Vela", now the Deluca's building).
Mrs Lamb advises that the existing heritage dwelling on the subject land was located to maximise the distance from those three surrounding existing dwellings in 1902. That location had the effect then of maximising views across Brisbane over the vacant Lot 21 to the north.
Because of the presence of the 18 units on the adjoining seven storey building to the west, Mrs Lamb argues that the subject land is subject to major visual intrusions from the balconies of those units. She also notes that noise intrusions from those units further detracts from privacy on the subject land. Mr Van Hees accepts that those intrusions do occur on the subject land, but argues that is a common experience with inner suburban residences, and is accommodated for in the market place.
A matter of concern to the appellants is the high traffic volumes on both Leopard Street to the east and the South-East Freeway to the north. Mrs Lamb provides evidence of traffic surveys which confirm daily volumes for Leopard Street (30,000 vehicles per day) and the South-East Freeway (200,000 per day). Mr Van Hees does not disagree that heavy traffic in that location is a problem, but argues that similar problems are also evident on his key comparable sales sites. Mrs Lamb notes that Leopard Street is part of a major sub-arterial road traffic link between the Story Bridge and Main Street and the South-East Freeway. As such she notes that access to the subject land is very difficult during peak hour periods, and particularly when the Gabba Sports Venue is in operation.
In respect of the rear access to Wild Street, Mrs Lamb advises that narrow laneway was really constructed to provide access to the service areas of the lots fronting Alice Street to the south, and to the kitchen areas of the subject property. She advises that the existing gates do not open effectively due to their aged condition, and that narrow lane really only provides pedestrian access. Mr Van Hees rejects that conclusion, as he notes that with effective maintenance of the gates, then vehicle access could be achieved from that direction.
Mr Van Hees argues that the subject property is one of only five or six residential properties in that area that have outstanding views of the City centre, and he sees it as one of the five to ten most unique residential sites in Brisbane, and generally superior to most parcels anywhere in the area. However as he had personally not been able to visit on the land previously, he concedes that he had not been fully aware of the extent of traffic noise from the South-East Freeway. However he notes that residential units on South Bank also suffer similar noise intrusions, and those properties continue to sell at good prices.
Impact of views –
At the very heart of this matter is the existence of good CBD and river views, and the potential risks that the existing longstanding CBD views could be impeded. Mrs Lamb concedes that at the relevant dates the CBD and river views did exist. However she argues that even from the second level of the existing heritage building, the maximum arc of clear views is restricted to about 108 degrees. Mr Van Hees argues that in his opinion the views probably extend to something greater than 180 degrees, and includes views of the river to the Story Bridge. Mrs Lamb provides photographic evidence of the extent of CBD views, which she argues was accurately measured by Mr Lamb from the second level balcony at about 108 degrees. Because of personal security matters, the Court was unable to inspect the views from the second balcony, but it accepts from the photographs that existing vegetation, either protected by heritage listing or on adjoining properties would restrict the arc of clear views to the City centre and the river.
Mrs Lamb questions the opinion of Mr Van Hees that the market place places high value upon the existence of unobstructed views of the CBD. She seeks comparisons between the existing CBD views, which are predominantly City buildings, and earlier views across the skyline of the City to the mountains (Exhibit 6 – p.36; and Exhibit 19 – photographs). While those older photographs of the Brisbane City Centre indicate how high rise CBD developments have changed the skyline, perhaps to the detriment in the opinion of many observers, they do not conclusively prove that the market place does not see the modern skyline as very attractive.
Mrs Lamb also argues that because of the heritage significance, it is important to retain the views of the public towards the listed buildings. She argues that had the subject land been located at a lower reduced level near the river, then the vistas of the subject land could be more secure for the public. However, because the property is well elevated on Kangaroo Point Cliffs, and because of any future development upon 1 Leopard Street, then those vistas are more likely to be obstructed. Accordingly she argues that views from the subject land are at greater risk because of both elevation of 1 Leopard Street and the subject land.
Mr Van Hees rejects that conclusion, as he notes that he personally has similar views from his high rise unit in Alice Street, which looks directly across the river to the subject land. He argues that those are excellent views. Mrs Lamb rejects that conclusion, as she notes that the views to the south from an elevated Alice Street position, would be more expansive than those restricted by City buildings.
Another matter of concern for Mrs Lamb has been the recent history of the poisoning of the heritage listed large Camphor Laurel trees upon the subject land. She advises that persons unknown have poisoned those old trees yearly between 1997 and 2001, to the extent that many of those grand old trees have now to be removed and replaced with trees suitably approved by the Heritage Council. While Mrs Lamb agrees that because of the poisoning, there has been some reduction in the obstructions to views by those trees, she argues that had little impact from ground level. She argues that as the unimproved value must be determined as if the improvements did not exist, should not those views from the ground level be important considerations (transcript 72).
To demonstrate how any development on 1 Leopard Street (Lots 5 and 21) could impact the existing views of the CBD, Mrs Lamb provides a photograph of a large sign billboard that had been temporarily erected upon Lot 5 (Exhibit 6 – pp.44 and 48). She argues that any building upon Lots 5 and 21 to a maximum building height of 8.5 metres, would effectively block any CBD views, except towards the skyline. She argues that views of the river would be restricted to just glimpses to the river reach near South Bank. Mrs Lamb further notes, and provides photographs to demonstrate, that views from the subject land to the east, south and west are all obstructed by trees and buildings. Mrs Lamb argues that the threat of losing the current views to the CBD, has been consistently present since 1986 by proposed developments on Lots 5 and 21. She argues that river and CBD views are most secure from the lands to the east, such as on the units at 236 River Terrace, which was heard by this Court in 2001.
To demonstrate the risk to views that have continuously been evident on the subject land since 1986, Mrs Lamb provides details of three successive development proposals. She notes applications by Mr Harburg in 1986, and Lasrado in 2000 (Exhibit 6 – p.52) and 2003 (Exhibit 6 – p.39). All of those applications for multi-unit type developments were subsequently refused by the Brisbane City Council (the Council). However she notes that during the relevant valuation periods the risk of those appeals being successful hung heavily over the subject land, and would have been evident to any theoretical prudent purchaser of that land. In respect of comparisons with other excellent views, which were not threatened, Mrs Lamb draws comparisons with much more expansive City views with various other heritage properties across Brisbane, as discussed later in paragraph [68] onwards.
In the matter of the Harburg application in 1986, Mrs Lamb notes that involved the potential development of three $1,000,000 town houses, each of three or four levels, on 1 Leopard Street (Lots 5 and 21). While the artist's impression of the proposed development indicated the continued exposure of the second level of the heritage dwelling upon the subject land, subsequent analysis of those levels suggest that that was unlikely to have occurred (Exhibit 6 – p.56).
The development application by Lasrado in 2000 for a proposed house and attached office, noted the potential for development to exceed the height 8.5 metres, which would have required "a potential town planning development application" (Exhibit 6 – p.52). Mrs Lamb notes that advice of which she has become aware from Arc Style Architects in February 2000, noted that the proposal extended the proposed building footprint virtually right across Lots 5 and 21 in order to accommodate the higher density proposal, which exceeded a single residential arrangement. Mrs Lamb speculates that the building area gross floor area exceeded the maximum permitted under the R4 land use classification, which eventually led to its rejection by the Council. Mrs Lamb again saw that proposed development as an apartment building with a detached house upon a land parcel of size, which was only acceptable for single residential purposes.
The third application involved another proposed development by Lasrado for a "proposed townhouse" on 1 Leopard Street (Lot 5) and 90 River Terrace (Lot 21) (see Clayton Utz letter of 22 January 2000 – Exhibit 9). Further details of that proposal are included in Exhibit 6 – p.53 onwards, and describe two buildings with an open narrow breezeway between. The new proposal on two separate postal addresses followed a resurvey of the old Lots 5 and 21 which amended the original total site area of 1,179 square metres to a new area of 1,184 square metres. A later amendment to that proposal closed off that narrow opening by cojoining two of the three proposed units (p.54). The report noted that the total area was still less than the 1,200 square metres suggested by the owner, subject to a land acquisition of further land.
Mrs Lamb further argues that advice to her legal advisers by consultants Fulton Trotter and Partners was that the ground level variations indicated that "the proposed small house is substantially higher than the 8.5 metre limit set down in the acceptable solution A1.1 of the small lot code" (Clayton Utz letter 16 February – Exhibit 9). Now while some of those facts occurred after the most relevant date in the current appeals of 1 October 2002, Mrs Lamb argues that uncertainty and misinformation in respect of the future of 1 Leopard Street was an ongoing problem in respect of the continuing presence of the CBD views.
To support her assertion that the heritage building on the subject land would be obscured from ground level at the Botanical Gardens area on the north bank of the river, Mrs Lamb provides a report by Arc Architects of 22 January 2004 (Exhibit 9). That report concludes that two-thirds of the views of the river would be obstructed by the proposed Lasrado development, in contravention of s.3.2.2 of the Heritage Code. A longitudinal section provided by an engineer indicated that if the development had proceeded, then the views of the heritage building would be totally obscured (Exhibit 9 – sketch).
It is noted that the entry for the subject land in the heritage register states "significant views are the views from "Home" to the Brisbane River and the Central Business District.". Mrs Lamb advises that she is now aware that the most recent application by Lasrado has been rejected, as it was out of time under the Act. However Mrs Lamb argues that any subsequent application upon the Lasrado land, which did not in some way exceed the building code, would be an as-of-right development, not requiring a development application under the Integrated Planning Act 1997 (IPA). She argues therefore that the risk of those CBD views is ongoing.
Mrs Lamb questions the current reliance upon the existence of views in the market place, as she notes that the Council expressed the opinion in their planning documents that views are not to be guaranteed. On that basis she argues that, subject to an appropriate building application, Lasrado could build upon 1 Leopard Street and block the current views of the CBD. Mrs Lamb contrasts that situation for the current land with examples of absolute direct riverfront parcels, where views cannot be obstructed, as noted later in the respondent's sales. Mrs Lamb notes that even originally when the Green house existed, part of the City and river views had been obstructed by that building.
Mr Van Hees rejects that the CBD views are not of such a high premium, as he advises that market evidence discloses that any property with CBD views gains the greatest attraction. He confirms that such properties with CBD views are the highest valued properties. He also offers his opinion that even if development did finally proceed on 1 Leopard Street, then only part of the CBD views would be lost, because of the lower elevation of that parcel compared to the subject land (about 3 metres). Mr Van Hees offers the opinion, that any risk for loss of views would reflect only about 5% to 10%, and he has allowed for that in his valuation. Mrs Lamb questions why the height of improvements are taken into account when what has to be determined is the unimproved value of the land.
In support his opinion of the value of the CBD views, Mr Van Hees notes that a smaller 10 metre wide parcel, adjoining the heritage property of Nimmo ("Coorooman") at 38 Dorchester Street, South Brisbane, had demonstrated the importance of such views in the market place. He notes that those views are far inferior to the views from "Home", but, even being aware of the potential loss of some of the CBD views, a purchaser recently paid $870,000 for a parcel previously sold for $610,000.
Heritage constraints –
It is agreed that "Home" is listed under the Queensland Heritage Act 1992, which provides protection under the Act for both the dwelling and the entire property, including mature trees and gardens (Exhibit 9). It is the impact of that protection which is a matter of dispute between the parties. Mrs Lamb argues that, other than relatively minor maintenance problems, any significant alteration or maintenance of the entire property is at the discretion of the Heritage Council. Mr Rabaa argues that certain maintenance exemptions do exist under the Act, and he refers to a recent advice to that extent from the Queensland Heritage Council of 8 December 2004 (General Exemption (GI – Exhibit 9). The property would appear only to be listed under the State legislation, different to the Nimmo property which was listed under Commonwealth, State and Council legislation.
Mr Rabaa argues that under the new guidelines, certain applications to the Heritage Council are no longer required. Mrs Lamb concedes that is now the situation, but argues that much of the maintenance problems now confronting the appellants would be of such dimension that the General Exemption certificate would have no application. In any case Mrs Lamb resents the need to have to seek the approval of the Heritage Council, with whom she currently disagrees on many of their determinations. That is really at the source of the current matters, as she advises that the original heritage listing was done without the permission of the then owner (Miss Lamb).
A major concern to Mrs Lamb has been the current damage by poisoning of the mature Camphor Laurel trees, which form an important part of the landscaping of the heritage property. Mrs Lamb also notes that even under the existing Local Area Plan of the Council (LAP), where the "character housing" precinct covers the four lots fronting Leopard Street is concerned, there is a need to preserve landscape vistas, including the vegetation along the street. Mrs Lamb points out that there is a double planning requirement for the preservation of the very aged trees which has now been usurped by persons unknown.
Mr Van Hees agrees with those observations. Mrs Lamb advises that while she has brought the damage of the trees to the notice of the Heritage Council, the only advice she has so far received is that the maximum pruning of mature vegetation should not exceed 20% of the height. She argues that because of the death of those very large and mature trees, the cost of replacement will be very significant, and may lead to damage to the heritage fence lines if not undertaken very carefully. Mrs Lamb has sought the advice of a professional arborist in trying to find a solution to the problem. There has also been damage to a 100 year old Bougainvillea hedge along the common boundary with 1 Leopard Street.
Mrs Lamb argues that the decisions of the Heritage Council were binding also upon the State, prior to the changes to the Act in 1993, as she notes that a former Minister had to seek the leave of the Heritage Council to support the previous concerns of appellants in respect of the demolition of a former heritage house in Thynne Road, Morningside (Wandiligong). Because of that virtual unfettered power of the Heritage Council, any prudent potential purchaser of the subject land would be very circumspect about what could be changed on "Home" to bring it to a more acceptable sized living area.
Both parties agree that the subject property is unique in Brisbane. For that reason Mrs Lamb argues that some of the features of the old dwelling were unlikely to be attractive to a well funded potential purchaser, without further additions to the living area. Mrs Lamb advises that the main dwelling comprises only four rooms downstairs, and six bedrooms, two of which were small maids' rooms, and a bathroom on the second level. She argues that any potential owner with the financial means to be able to refurbish the building, was most likely to seek additions for say major rumpus or home theatre rooms. The lack of facilities would be seen as a major disincentive to a potential buyer, because of the heritage restrictions upon how any alterations could be achieved. She notes that a major part of the heritage listing relates to the verandahs on three sides of the building.
In respect of how the advisory Burra Charter for heritage properties is being implemented by the current Heritage Council, Mrs Lamb disagrees completely with the Heritage Council's majority interpretation of the Burra Charter intentions. She understands that interpretation is not completely supported by some members of the Heritage Council. Mrs Lamb notes that presently alterations can be achieved as long as they are not seen to mimic the original style. Mrs Lamb argues that local interpretation is in contrast to other heritage architectural views about the Burra Charter. She provides a general Statutory Declaration about the Burra Charter from Carolyn Anne Wigg of South Australia (Exhibit 17). That report generally supports Mrs Lamb's understanding of the Burra Charter, noting that under article 7, 8, 22 and 15, the changes to a building should respect the cultural significance and the fabric of the original building. It is noted that Miss Wigg was formerly a Chief Project Officer of the South Australian Building Codes Board Housing Advisory Committee, has wide overseas experience, and has a good working knowledge of the Burra Charter, and its influence upon conservation policy in Australia.
Mrs Lamb argues that part of its heritage significance was because the "Home" property had been in the one family ownership for over 100 years, and had been retained in the original fabric of construction since 1902, so that any changes should not seek to remove that original fabric. Accordingly, disproportionate additions to satisfy modern aspirations of living styles in her opinion, should not be acceptable to Heritage Council. On that basis she argues that the subject property would lack some attractiveness in the market place because of the heritage restrictions. Mr Rabaa rejects the restriction interpretation, as he notes that the appellants have never applied to the Heritage Council for modification approval.
Another factor which Mrs Lamb argues is a direct result of the unique design and construction of "Home" is the very unusual tiled roof structure. She advises that the existing deteriorated condition of the building is such that it now needs a new roof and major replacement of the lime mortar between the bricks. She advises that most buildings of that era were constructed with concrete mortar, which does not deteriorate as much as lime mortar. She also advises that she is aware that only the tiled roofs of St John's Cathedral and St Andrew's Uniting Church in Creek Street have similar roofs to "Home", but their pitches are more acceptable to that type of roofing.
Mrs Lamb advises that cost for the replacement of the roofing alone for "Home" has been estimated at about $250,000. She argues that those are not minimal costs by any standard. She draws difference between those costs and the normal roof refurbishment cost on the average "timber and tin" roofs of other heritage buildings. She argues that the required terracotta tile roofing over the verandah needs totally replacement, and she agrees that those verandahs are important features of the home. On that basis she argues that any allowance for heritage listing should be significant. However she agrees that minor replacement of plants and removal of pests, such as Cats Claw is allowable on the subject land.
Mr Rabaa questions that understanding, as he notes that in the heritage matters of Nimmo and Roberts, there had been evidence of the extent of maintenance work that could be undertaken without formal application to the Heritage Council. He also argues that any detriment of owning a heritage house or a non-heritage house of similar age and condition would be similar. He provides examples of two properties in Hamilton and Clayfield which are discussed later in paragraph [59].
Mr Rabaa also notes examples where old heritage properties have been able to be redeveloped satisfactorily at St Brigid's Convent in Red Hill, and St Joseph's Convent opposite the subject land in Leopard Street. Mrs Lamb is very familiar with those properties, which she argues demonstrate the current "flexible" attitude to heritage preservation by the Heritage Council. She notes that St Joseph's Convent was the subject of an unsuccessful appeal by local residents in the Planning and Environment Court, and St Brigid's Convent is currently under appeal by local residents. She notes also that a current application for redevelopment of the close by Cliffside Apartments (circa 1936 – Exhibit 11) is currently on hold, perhaps reflecting upon current matters raised by the resident group.
Mrs Lamb comments that an opinion expressed by heritage owners is that certain heritage type professionals can arrange suitable approvals under some circumstances. However she argues that a press statement by the former Chair of the Heritage Council in 2002 indicated that such flexibility was unlikely to be extended to the subject property (Exhibit 9). That press statement also foreshadowed future restrictions by legislative changes to guard against owners who allow a heritage property to fall into disrepair by neglect. However there was no evidence that prediction had eventuated to the present time.
As a further example of the level of uncertainty associated with heritage properties, Mrs Lamb notes the proposals for the Police Barracks site at Petrie Terrace (Exhibit 12). She notes that whole property was originally listed as a heritage property by the Heritage Council. Subsequently approval was given for a developer to refurbish the old Police Barracks building, and to construct a new 14 storey new office block to the rear of that site. A later application amended that application from an office building to residential units. Copies of correspondence to the Heritage Council, which were supplied to Mrs Lamb for her information, disclosed a high level of uncertainty for the developer after 4½ years of a lack of approval by the Brisbane City Council, subject to a development application.
While there was clearly certain hidden agendas in that documentation, the message was clear that the development of an aged and dilapidated old building was not a direct and simple procedure. Mrs Lamb also noted suggestions in that correspondence of potential conflict of interest on the Heritage Council. She argues that heritage applications to the Heritage Council can be very unpredictable, and a "moving target" for any prudent purchaser of the subject land. However Mr Rabaa notes that such uncertainty of outcome could also work to the appellants' favour, if an application was made to the Heritage Council.
Mrs Lamb also draws support between her late mother's heritage listed home at 81 Dornoch Terrace, Highgate Hill and the "Home" property at Kangaroo Point. She advises that with some reluctance on her part to settle a family estate, she had agreed to seek the removal of the Council heritage listing on that property. The resulting unfair criticisms of that decision, in view of her stated beliefs on heritage matters, have caused Mrs Lamb considerable anguish, and the listing of the heritage site was finally rejected, after political interference. While those circumstances are completely separate to the current listing on the "Home" property, in her opinion they demonstrate the total unpredictability of heritage matters.
Mrs Lamb argues that similar heritage properties across Brisbane have not been increased in value to the same level as the "Home" property, principally because of the impact of those heritage listings which have been seen as a greater disability than that applied to the subject land. Those matters are discussed much later in paragraph [85]. Mrs Lamb also notes that while there is some guidance on the type of minor maintenance covered by the Heritage Council (Exhibit 8), that document also specifies that work requiring approval by the Heritage Council includes excavations to or disturbance to the natural features of the landscape. She notes therefore that approval would be definitely required before the existing poisoned dead Camphor Laurel tree stumps could be removed and replaced. However, while she was critical of the Heritage Council, Mrs Lamb advises that the Environment Protection Authority people have been very helpful.
In responding to Mrs Lamb's argument in respect of any allowance made for problems associated with heritage listing of the "Home" property, Mr Van Hees advises that he had made some allowance for that purpose. However he notes that, in his analysis of some sales of similar heritage and non-heritage properties, there had been little difference in their sale prices. He had supplied that evidence at 14 Sutherland Avenue, Ascot and 64 Enderley Road, Clayfield, also in a more recent appeal on the Nimmo property. Mrs Lamb argues that such a comparison in Ascot is not reasonable, as that locality contains very old "heritage" style ambience type timber and tin dwellings. She argues those properties do not have the same disabilities evident in "Home".
Mr Van Hees also argues that with the changing social economic fabric of new residences in the South Brisbane area, in his opinion the "Home" property will become more valuable. Mr Van Hees advises that, allowing for the much larger area of the subject property, and its disabilities, and the heritage listing, he had applied a discount of 20% to his assessed unimproved values of a vacant site in that location. He rejects Mrs Lamb's suggestion of a discount based upon the footprint of the dwelling, as he notes that the land has been valued on a site basis under s.17 of the Act as a single residence site only.
Mr Van Hees has been influenced in his decision to apply a discount of 20% in this matter by previous decisions of this Court. He notes that allowances have been applied in Nimmo and Roberts, where 10% have been made. However he agrees that some higher allowances have been made in other matters, such as Conias (17.5%) and Cooke (25%).
Mr Van Hees offers comment that the subject land would be worth about $4,600,000 on the current market if it had not been listed as a heritage property. On that basis alone, he argues that an allowance of about 50% might have been more appropriate. However Mrs Lamb questions that estimate, as she notes that if sold as separate small lots, she believes that the planning restrictions upon Lots 6 to 9 fronting Leopard Street would preclude such a high market value.
Mrs Lamb also questions the respondent department's approach to the valuation process, which she argues appears to make no allowance for the heavy impact of rating increases which subsequently occur as a result of the very large increases in the value of land. She argues that with heritage properties there should be some special allowance made because of those large additional costs to owners of the heritage properties. Mrs Lamb also questions the method of comparing unimproved values of adjoining lands, which she argues on a per square metre basis has now been distorted by the recent valuations of the subject land. Mr Van Hees rejects comparisons on a per square metre basis, as he notes that residential lands are valued on a site basis. However he agrees that in very select areas where there is a limited supply of parcels, such as river front lands, then a per square metre basis made be appropriate. Mrs Lamb also questions the appropriateness of the current mass appraisal system, which she argues may overlook important features of specific parcels.
Wider relativity comparisons –
In seeking to understand the impact of heritage listings upon other similar sized properties across the inner older suburbs of Brisbane, Mrs Lamb provides a range of properties. She argues that collectively those other heritage listed properties reflect unimproved values considerably less than the subject land, and generally reflect much lower unimproved values compared with similar non-heritage listed properties. She argues that those differences must reflect the allowances made by the respondent department elsewhere, which is not reflected in the subject land. Mrs Lamb seeks some direct relativities with certain parcels, but generally she argues that greater allowances have been made for the heritage listings of those other parcels as follows.
· 195 Clarence Road, Indooroopilly – (Lot 195 on SP 113021 – Tighnabrurich)
Mrs Lamb argues that riverfront 1.19 hectare heritage listed property was formerly the residence of the Commanding Army General in Queensland, and was originally the home of the Queensland Railway Commissioner (Stanley) in the 19th Century. It is now in private ownership (Molloy) and was valued at $1,450,000 in 2002. She compares that to the adjoining land at 213 Clarence Road (2,181 square metres - $660,000) and nearby parcels at 210 Clarence Road (3,516 square metres - $1,250,000), 21 Neulans Road (2,023 square metres - $760,000), 23 Neulans Road (2,453 square metres - $1,400,000), 29 Neulans Road (2,929 square metres - $1,500,000), 37 Neulans Roads (3,038 square metres - $1,550,000), 8 Glasnevin Street (3,922 square metres – $1,500,000), 9 Glasnevin Street (2,593 square metres - $1,250,000), 11 Glasnevin Street (2,200 square metres - $1,150,000) and 29 Ivy Street (3,591 square metres - $1,450,000).
Mrs Lamb argues that all of those properties are direct riverfront lands with views of the river, and opposite expensive residential riverfront lands at Rosebery Terrace, Chelmer. She notes that the very large difference in size in 195 Clarence Road, suggests that a major allowance has been made for the heritage listing of that parcel. She argues that those improved properties are all valued in similar price ranges in the market place, they experience little traffic noise, and all are well sought after. She argues that the 195 Clarence Road property is one of the most superior heritage properties in Brisbane.
Mr Van Hees has no personal knowledge of the reasons for the apparent lower application of 195 Clarence Road, but he argues that some relativity comparisons can be misleading. He also notes that from his experience in South Brisbane, West End, Highgate Hill and Kangaroo Point, he has found several previous relativities that were wrong, and he has sought to adjust those errors. He also notes that Mrs Lamb has made no allowance for the excellent City views of the subject lands in seeking comparisons at Indooroopilly which do not enjoy City views. Mr Van Hees argues that comparisons with unimproved values at Indooroopilly provide no useful check on unimproved values at Kangaroo Point, which is much nearer the CBD, and has City views.
· 23 and 55 Boyd Street, Bowen Hills
These are two hill top old residences which have areas of 3,050 square metres (Cintra House) and 2,112 square metres (formerly Cintra Nursing Home). 23 Boyd Street is a heritage listed property with excellent wide river and City views. Mr Van Hees agrees that 23 Boyd Street possibly has a wider arc of view than the subject land (about 270 degrees), and it sold in April 2001 for $2,100,000 and in 2002 had an unimproved value of $1,550,000. 55 Boyd Street is not heritage listed and sold in September 2001 for $1,550,000, and had an unimproved value of $1,250,000. It also has commanding views of the river, and there is less traffic impacts at both of those properties.
Mr Van Hees is familiar with both of the above properties, as he advises that he had been directed to revalue that area for the 2004 valuation. He argues that he found many of those unimproved values were in error, and he has increased 23 Boyd Street from $1,550,000 to $4,000,000, an increase of 250%. He advises that because of the rapid rise in the market in recent years, some applied value changes have not been properly adjusted. Mr Van Hees argues that demonstrates the problems with seeking direct relativities on such a "scattergun" approach. Mrs Lamb notes that 23 Boyd Street increased in unimproved value from $750,000 (1999), to $830,000 (2001), and $1,550,000 (2002). She argues that would seem consistent with the sale price at $2,100,000 in April 2001 (Exhibit 30).
[70
· McIlwraith Avenue, Norman Park –
This is a larger parcel of 8,591 square metres, which is the heritage listed residence of the former Justice Real of the Supreme Court of Queensland, and later was restored by the late Stanley Hancock of Hancock and Gore, and used as his family home for 60 years. There are views of the CBD from the property, although more distant views than from the subject land. There are no views of the river available. That property had an unimproved value in 2002 of $1,150,000, and sold in June 2001 for $1,750,000. Mr Van Hees was not familiar with that property.
· 598 Vulture Street, East Brisbane –
This is the former residence of Dr Aaron, which is heritage listed and has been excellently restored. The property has an area of 3,642 square metres, and has an unimproved value in 2002 at $820,000. However it is agreed that there are no outstanding views on that property. The residence is a "timber and tin" dwelling, and is therefore easier to repair and maintain. It is agreed that Vulture Street is a busy traffic route, although not as busy as the South-East Freeway near the subject land.
· 34 to 40 Mullins Street, Hamilton "Cremorne" –
This is a 2,435 square metre heritage listed property with outstanding distant views of the CBD and closer views of the river, and had an unimproved value in 2002 of $1,250,000. The views are on the side of Hamilton Hill and extend for about 180 degrees of arc. Mrs Lamb notes that property is close by to one of the respondent's sales at 19 Lawes Street (see paragraph [114], which had an applied value of $1,450,000 for that 807 square metre sale parcel in 2002. Mrs Lamb argues that suggests that the large "Cremorne" site, with virtually similar views at 19 Lawes Street suggests that there was a significant allowance made for that heritage listing on "Cremorne".
· 242 Kingsford Smith Drive, Hamilton –
This is a 2,049 square metre heritage listed property fronting busy Kingsford Smith Drive, and with excellent direct river views of several reaches of the river as well as City views, and also across the river to the area of Bulimba and New Farm. It has similar traffic problems as River Terrace, and Leopard Street at the subject land, yet was only valued at $860,000 in 2002.
· 17 Upper Clifton Terrace, Red Hill –
This is a 4,880 square metre heritage listed ex-convent building, which is currently subject to an application to be refurbished, and part of the heritage listed site developed as small lot developments at the rear fronting Lower Clifton Terrace. The original heritage listed area of 4,880 square metres was reduced by the Heritage Council to about 3,375 square metres. (See Site Plan 0419DA EO1 – Exhibit 10). That will also then allow for a new small lot dwelling to the west of the old convent building, fronting Upper Clifton Terrace. That application is currently under active appeal by local residents (see Exhibit 10). That property sold in June 2001 for $2,700,000, and had an applied unimproved value in 2002 of $3,000,000. Clearly the ability to extract part of the former heritage site has resulted in an increased expectation in the market place of its value, suggesting that the original heritage listing provided a restriction on the value of that parcel.
Mrs Lamb argues that could not be achieved on the subject property. Mr Van Hees rejects any comparisons with St Brigid's Convent, as he notes that was valued on a multi-unit basis, while the subject land was valued under s.17 of the Act as a single residence site. Mrs Lamb rejects that, as she notes that the proposal for the old convent building is for "single residence purposes", as noted in the newspaper by the purchaser of 15 October 2004 (Exhibits 7 and 10). However the architectural proposal would indicate otherwise.
· 9 Queens Road, Hamilton – "Palma Rosa" –
This is the heritage listed 1,181 square metre property acquired by the English Speaking Union of Australia in the 1970s, which has been significantly restored with assistance of Commonwealth Heritage funds. Mrs Lamb sees this site as the most relevant comparison to the subject land. This old restored building is large, and of similar construction with a similar tower as the subject land. The dwelling is an old three storey masonry building. There are views to the City from the rear, and little traffic problems. The unimproved value of "Palma Rosa" in 2002 was $295,000.
· 38 Annie Street, Hamilton – "Toorak House" –
This is the 8,906 square metre heritage listed property formerly the home of a former Justice in Queensland, later owned by the Allen Family, and more recently by new owners. Mrs Lamb notes that subsequent to that more recent sale, several heritage listed Bunya trees were apparently illegally removed from that site, with no follow-up action by the Heritage Council, which she argues further demonstrates the unpredictability of heritage listings in Queensland, and therefore its potential impact upon the value of such lands. Mrs Lamb notes that "Toorak House" has virtually no traffic problems, is about three times the size of "Home", and it was only valued in 2002 at $3,800,000. She argues that "Toorak House" is an old rare stone house with a tower and parapets, and its 360 degrees of the City and river are far superior to the subject land.
· 39 Enderlie Terrace, Hamilton – "Eldernell" –
This is the current heritage listed residence of the Anglican Archbishop and was formerly "Farsley", which occupied 5,597 square metres of hilltop land on Hamilton Hill. The property has excellent City and river views, and has much less traffic problems, as Kingsford Smith Drive is well below it in elevation. Its unimproved value in 2002 was $2,500,000, and Mrs Lamb argues that it is far superior in location and views to the subject land.
· 63 Alexander Road, Ascot – "Carfin" –
This is a 3,490 square metre heritage listed property in a select area of Ascot, that had an unimproved value of $1,500,000 in 2002. While that property is agreed to have restricted views to the rear, Mrs Lamb argues that it demonstrates the level of value of the subject land as it should be if it loses its CBD and river views, as discussed previously. It is noted that property was the subject of a decision of this Court on 8 October 1998.
· Yeronga comparisons –
These cover several properties as follows for 2002:
Address Area Unimproved Value Comment 10 Heritage Close
(Lot 18)1,367 square metres $900,000 River front/not heritage
20 Heritage Close
(Lot 101)
810 square metres $650,000 River front/parkland 29 River View Place
(Lot 20)1,640 square metres $1,150,000 River front/not heritage 7 Heritage Place
(Lot 11)824 square metres $310,000 Not river front/heritage 23 River View Place
(Lot 119)4,128 square metres $1,550,000 River front/heritage
Mrs Lamb argues that while those properties clearly do not have CBD views, the relativity between the heritage and non-heritage properties demonstrates the significant allowances made for the restrictions imposed by heritage listing. She notes that 23 River View Place ("Rhyandarra") has direct river frontage, comparable say to the adjoining 29 River View Place, which also has direct river frontage. However it has a much larger area, yet both are valued at $1,150,000. Clearly she argues the difference must be the heritage listing.
Likewise Mrs Lamb argues that the two inside parcels of 10 Heritage Place (1,367 square metres) and 7 Heritage Place (824 square metres) are directly opposite each other, and with similar views. Yet 10 Heritage Place is valued three times that of 7 Heritage Place, which is the heritage listed former stable site. That has subsequently been redeveloped with a more separate extension to the old stables. That also, in her opinion, demonstrates a large allowance for that old heritage listing of 7 Heritage Place (Exhibit 18). However while those two comparisons do indicate some level of allowance for heritage listing, they provide no definitive measure of those allowances.
Impact of direct river frontage -
Mrs Lamb also seeks further support with other lands at 88 and 96 Kadumba Street, Yeronga. She notes that heritage listed property at 96 Kadumba Street, which is a corner site with part river views down Astolat Street, at an unimproved value in 2002 $710,000 for an area of 3,187 square metres. The heritage listed property adjoining at 88 Kadumba Street ("Como"), has an area of 4,247 square metres, and was valued at $900,000. She notes that another unlisted river front parcel at 24 Astolat Street had an area of 2,137 square metres, and because it had direct river frontage and river views, it was valued at $1,400,000. She argues that demonstrates the significance of direct river frontage, with views that cannot be obstructed, a feature not guaranteed for the subject land.
In a similar manner Mrs Lamb notes the impact of direct river frontage and anchorage, and unobstructed views, of two adjoining parcels at 114 and 116 Wynnum Road, Norman Park. She notes that the direct river front parcel at 114 Wynnum Road has an area of 2,307 square metres and had an unimproved value in 2002 of $1,250,000; while the parcel behind from the river at 116 Wynnum Road had an area of 2,352 square metres, and a value of $980,000. She argues that the views from 116 Wynnum Road are to the distance, but do not include views of the river. She notes that supports her conclusion that direct river front sales by Mr Van Hees have not been adequately assessed for the presence of deep anchorage and lack of any impediment to the river views, unlike the potential loss of views on the subject land.
· Dornoch Terrace, Highgate Hill –
A major concern of Mrs Lamb is also the apparent inconsistency of heritage listing of her mother's property at 81 Dornoch Terrace. She notes that it is an old dwelling built in the 1940s, which was listed mainly because of the common architectural designer who also designed other major city buildings. While Mrs Lamb would wish to preserve that three-storey old building for personal reasons, she argues that ground subsidence and other factors, makes such a restoration virtually prohibitive. Mrs Lamb has an estimate of about $1,000,000 to acquire her sister's half share of the property and also to stabilise the corners of the building which is subsiding (transcript 325). Other substantial costs of restoration would then be required, for a fully restored property worth much less than the total restoration costs.
Mrs Lamb notes that the former old dwelling adjoining that property at 85 Dornoch Terrace was, in her opinion, contentiously demolished, and is now proposed for a five level multi-unit building. She argues that while planning staff of the Brisbane City Council had seen 85 Dornoch Terrace as a potential heritage property, it had only been classified as a "character" dwelling. The adjoining property at 91 Dornoch Terrace is an existing 13-storey building, and other than for her mother's residence, which is heritage listed, all other properties on both sides of Dornoch Terrace in that location are proposed for redevelopment as units. She notes that those properties with views to the south and north were not listed as "Character Housing" in the recent Local Area Plan which has now facilitated their development as units. Mrs Lamb argues that the heritage listing of 81 Dornoch Terrace again demonstrates the unpredictability of the heritage process, and its capacity for manipulation (see Exhibit 19 – Ortho photos).
Mr Van Hees agrees that those properties are generally being considered for unit development, but notes that Dornoch Terrace demonstrates his opinion of the high value placed upon views of the CBD. He notes that parcels on the southern side of Dornoch Terrace similar to 81 Dornoch Terrace, generally have views back over the river to the University of Queensland. The parcels on the northern side of Dornoch Terrace look over the CBD. He argues that the northern parcels sold for higher prices than lands on the southern side with the lesser views to the University. Mr Van Hees repeats that as one moves closer to the CBD the properties increase in market value substantially.
· Other comparisons –
Mrs Lamb provides various other comparisons to demonstrate her opinion that the unimproved value applied to the subject land is inconsistent with broad patterns elsewhere in the City. She notes for example large elevated parcels at 24 Phillip Street, Hawthorne of area 5,778 square metres, which is currently being developed for 19 units, has excellent City and river streets, yet it is only valued at $2,300,000. She notes also adjoining direct river front parcels with excellent CBD and river views at 88 Virginia Avenue, Hawthorne, (1,163 square metres - $1,400,000), and 90 Virginia Avenue (1,619 square metres - $1,450,000), and 114 Virginia Avenue (1,654 square metres - $1,450,000). She argues those demonstrate the importance in the market place of direct river frontage.
If I turn again to the Nimmo decision, I note that the learned Member had considered those two sales at Clayfield and Ascot, and concluded at paragraph [108]:
"[108] This evidence is too uncertain to carry any weight in my view. First, there is a question mark over whether or not at the date of sale prudent inquiries might have revealed that the Clayfield property was also to be heritage listed. Second, the evidence is far from certain as to the relative standard of the improvements, particularly internal improvements, to each of these properties at the respective dates of sale."
I reject those comparisons in the current matter for similar reasons, as a similar comparison had also been rejected in an earlier decision of Nimmo (AV2001/0206), 14 August 2003, unreported, at paragraph [226], and also as noted in paragraph [211].
In looking for guidance as to what allowance, if any, might be appropriate to apply to a heritage listed property, I turn to previous decisions of this and other courts. I note that the provisions of the Queensland Heritage Act 1992 were examined in some detail in Nimmo (AV2001/0206) at paragraph [207] onwards, and I will not repeat those comments. However I note particular that "the restrictions caused by the heritage listing must be considered when determining the site value", (McEwin v Valuer-General (1993) 80 LGERA 12, per Mulligan J at 18).
In addressing the general matter of heritage preservation, and its likely impact upon the value of a heritage listed property, I look for guidance in the Queensland Heritage Act 1992, and note that the maximum penalty for undertaking any development of a registered heritage place, without the specific permission of the Heritage Council, is a serious deterrent of a maximum fine of 17,000 penalty points (s.33(1)). However guidelines for heritage listed properties clearly allows certain specified maintenance options (Exhibit 8). Depending upon the conditions of the heritage property, the level of maintenance work is likely to vary from property to property. In respect of any major work upon "Home", I would agree with Mrs Lamb that a formal approval from the Heritage Council would be necessary. However the appellants have not yet made such formal application, and it is not clear about the actual extent of total replacement works, including the major roofing costs, what would be required. However it would be fair to accept that the costs would be very significant.
Noting the heritage report of Mr Jones for the former St Joseph's Convent, and also Miss Witts' comment (Exhibit 17) in respect of the Burra Charter, I accept that any redevelopment or significant maintenance to "Home" was likely to be complex, and probably requiring the professional services of a heritage architect. That is not a straightforward building procedure, and in view of the possible consequences of inappropriate developments, would be taken very seriously by any heritage owner. Because of the different fabric of "Home", I believe that it was likely to reflect development costs at the dearer end of construction costs. That is a matter that would be considered by a prudent purchaser.
If I look then at the range of heritage matters that have been considered by the courts in similar appeals, I find a wide divergence depending upon the individual properties. That is likely to be expected with the relatively unique and special nature of selected heritage listings. If I look at the range of disability allowances made by the courts, I find that in all matters against the respondent department, they range from Shara Pty Ltd ((1996-1997 16 QLCR (nil)); Roberts ((1998) 19 QLCR 186 (10%)); Nimmo ((supra) at paragraph [105] (15%)); and S and J Conias (AV97-336 – 8 October 1998 (17.5%)); and Cooke ((1998) 19 QLCR 258 (25%)).
However, if I look at the specific evidence in Cooke and Conias, I find that the appellants had supplied very complex and detailed costs associated with the restoration and maintenance works on those properties. That is a factor not generally available in the current matters, except for an estimate by Mrs Lamb of the like cost of the roof restoration ($250,000). Now while both Cooke and Conias considerably exceeded the findings of the Land Appeal Court in Roberts, the Member in both of those cases had ample substantive evidence for finding a higher factor of disability because of heritage impacts. In the Roberts matter, that was not provided, and the Land Appeal Court did the best it could and provided a nominal 10% discount (page 193).
Now the matter of fluctuating impacts by heritage listings was noted in Shara (supra) where the Member noted at 349:
"It seems to me that what the Court was saying was that one must look at the property in question and the impact of the legal consequences of the heritage listing on that property. A generalised approach is not appropriate. This is further demonstrated in the matter The Proprietors Gataker Place Building Units v. Chief Executive, Department of Lands (unreported) 19 August 1994 where the learned President found that the existing use of the site which was subject to heritage listing was the highest and best use. In the circumstances there was no decrease in value on account of the heritage listing."
I would agree with that conclusion that a generalised approach to heritage listing implications is not appropriate in the current matter. The uniqueness of the tile roofing, and the special lime mortar of the old bricks, sets the building apart from other more consistent "timber and tin" heritage dwellings. In contrast to the findings in Nimmo, I would tend to think a disability allowance more removed from the lower levels would be more appropriate, and in the absence of actual detailed costs or estimates of costs, I will adopt a factor of 20% for the heritage impacts in the mind of a prudent purchaser of "Home".
Summary:
If I then summarise my conclusions, I find that an appropriate site value for "Home", with unobstructed views and no heritage listing, at 1 October 1996 would be $1,200,000, and a site value at 1 October 1999 and 1 October 2002 would be $2,600,000. From those values there needs to be a reduction of 20% for the "risk" of loss of some views, plus a further 20% for the impact of the heritage listing of that specific property. That would result in unimproved values of:
· 1 October 1996 - $720,000
· 1 October 1999 - $1,560,000
· 1 October 2002 - $1,560,000
I note that in respect of the 1 October 1996 valuation, if a general heritage allowance of 10% in line with the Roberts decision had been applied to the unobstructed site value of $1,200,000 for the subject land, then an unimproved value of $1,080,000 would have been appropriate. That is close to the original determination of the Chief Executive at $1,050,000. The subsequent reduction to $970,000 possibly reflected some attempt to seek to settle the problem without further action. That the unimproved value then returned to $1,050,000 in 1997, in a stable market situation, lends weight to that conclusion.
Conclusion:
Having considered the whole of the evidence, I am persuaded that the appellants have partly proved their cases. The appeals are upheld, the unimproved values of the Chief Executive are set aside, and the unimproved values of Lots 1 to 4 and 6 to 9 on RP 11332 are determined as follows:
· 1 October 1996 - $720,000
· 1 October 1999 - $1,560,000
· 1 October 2002 - $1,560,000
NG DIVETT
MEMBER OF THE LAND COURT
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