Perpetual Trustee Company Limited v Department of Natural Resources and Water
[2007] QLAC 25
•16 April 2007
LAND APPEAL COURT OF QUEENSLAND
CITATION: Perpetual Trustee Company Limited v Department of Natural Resources and Water [2007] QLAC 25 PARTIES: Perpetual Trustee Company Limited
(appellant)v. Department of Natural Resources and Water
(respondent)FILE NOS: LAC2006/0107 and LAC 2006/0111 DIVISION: Land Appeal Court of Queensland PROCEEDINGS: Appeals from determinations by the Land Court of the unimproved value of land under the Valuation of Land Act 1944 ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 16 April 2007 DELIVERED AT: Brisbane HEARD AT: Brisbane JUDGE
MEMBERSWhite J
Mr RP Scott
Mrs CAC MacDonaldORDERS: 1. The appeals are dismissed.
2. The unimproved value of Lot 10 on SP 151098 County of Stanley, Parish of North Brisbane as at 1 October 2001 and 1 October 2002 is affirmed at Eight Million, Seven Hundred Thousand Dollars ($8,700,000).
CATCHWORDS: Valuation – unimproved capital value of riverfront commercial site – comparison with non-waterfront high-rise residential sites – premium for river frontage – perceived benefits – evidence to support – rental evidence – sales.
Valuation – unimproved capital value of riverfront commercial site – impediments to use of part site – appropriate discount – whether duplication in valuing balance site.
Valuation – unimproved capital value – volumetric Lot superimposed – whether value of component parts (subterranean, volumetric lot, airspace above) should equal single site value.APPEARANCES: Mr R Traves SC for the appellant
Mr D Fraser QC and Mr T Quinn for the respondentSOLICITORS: Gadens Lawyers for the appellant
Crown Solicitor, Crown Law for the respondent
The Appeals
[1]Perpetual Trustee Company Limited has appealed against two determinations of the unimproved value of land made by the Land Court under the provisions of the Valuation of Land Act 1944. The land is situated at 175 Eagle Street, Brisbane. The Land Court determined the unimproved value of the land at $8,700,000 as at 1 October 2001 and 1 October 2002.
[2]The respondent had assessed the value of the land at $8,700,000 as at 1 October 2001 and $9,500,000 as at 1 October 2002. At the hearing before the Land Court the appellant contended for a value of $3,500,000 as at both dates.
[3]The Land Court approached the matter by – (i) valuing the northern portion of the subject land by comparison with appropriate sales to reach a site improved value for that area; (ii) adding the value of the southern portion. That was calculated by discounting the value of the northern section by 45% because of certain impediments to the development of the southern area; and (iii) deducting the value of the site works to reach the unimproved values. There was no challenge to the valuation methodology adopted by the Land Court. Nor was there any challenge to the valuation of the site works so that the appeals relate to the value of the land in its site improved condition.
[4] The appellant has challenged -
(i)the valuation of the northern area. The subject land has a frontage to and extensive views over the Brisbane River. Its highest and best use, the learned Member found, was for commercial development. The Member relied on sales of non-waterfront land purchased for high-rise residential development to reach a base value of $3,500/m² for the northern area. He then added a premium of 20% to allow for certain advantages enjoyed by the subject as compared with the sales. The appellant submitted that the learned Member's reasons did not justify the premium of 20%;
(ii)the quantum of the discount of 45% applied to the southern area. The appellant contended that a larger discount should be applied saying that the learned Member attributed a higher value to the southern area because that area provided for superior access to the site and because an easement over that area effectively secured unrestricted river views. The appellant says that those factors were allowed for in the valuation of the northern portion and, accordingly, there was duplication.
The Land Court's decision
[5]The subject land (Lot 10 on SP 151098, County of Stanley, Parish of North Brisbane) has an area of 3,377 m². The land is L-shaped and has an 88.2 m frontage to the Brisbane River. The northern area of the site, approximately 2,236 m², has been developed with a high rise commercial building. The southern area (1,141 m²), is burdened by two impediments which, the learned Member found, effectively prevented any significant development on that portion -
(i) A volumetric lot (Lot 11 on SP 151098) has been subdivided from the original holding. Lot 11 is generally cuboid in shape, has a footprint of 1,141 m², a river frontage of 54.5 m and ranges in elevation from RL1.14 to RL18.1.
(ii)An easement (NN on RP 909669) is superimposed above and overlapping Lot 11, extending from RL14.2 to RL250. The easement secures light and air benefits to the adjoining lot at 167 Eagle Street.
The result is that the southern area of the subject land is separated into two levels – the land below Lot 11 and the airspace above Lot 11. The land below Lot 11 is subterranean and is used principally for car parking purposes. The airspace is burdened by Easement NN.
[6]The Court's determination of the unimproved values of the land at $8,700,000 was calculated as follows:
Site improved value of northern area - 2,236 m² x $4,200/m² = $9,391,200 Site improved value of southern area - 1,141 m² x $2,310/m² = $2,635,710 Total site improved value = $12,026,910 Less value of site improvements = $3,500,000 $8,526,910
Since the figure of $8,526,910 represented a variation of less than 5% from the valuation as at 1 October 2001, the Court considered that it would be artificial to disturb that value. The Court also found that there was no evidence to justify any increase in the unimproved value of the land as between 1 October 2001 and 1 October 2002. Accordingly, the unimproved value was determined at both dates at $8,700,000 or $2,576/m².
Value of the Northern Area
Sales Evidence
[7]The learned Member valued the northern area using the comparable sales method. He rejected the evidence of sales of heavily improved land as unreliable. Five sales remained - Aurora, Felix, Emerald Tower, 120 Edward Street and Riparian. The learned Member found that the Aurora, Felix and Emerald Tower sales offered the best evidence of value of the northern area of the subject land (Reasons for Judgment (RJ) [148]). He considered that 120 Edward Street was less reliable than Aurora and Felix and should be used with some caution. The role of the Riparian sale in the Land Court's decision requires more detailed consideration.
[8]Riparian is situated at 71 Eagle Street, Brisbane. The property was sold in December 1998 with settlement in November 1999. The Court adopted a value of $4,000/m² for the sale. Although the sale took place some years before the valuation dates, the Court accepted the evidence of Mr Jackson (the appellant's valuer) that the market between late 1998 and 2002 was such that no major adjustment to land values was warranted.
[9]Both the subject and the sale are riverfront blocks but, the Court found, Riparian was superior in location and access, and its shape was superior to the whole of the subject land, allowing construction of a high rise building of some 53 floors. The learned Member considered that site difficulties at Riparian probably involved additional building costs as compared with the subject, although he did not consider those to be of such significance as to make it unreasonable to compare the sale directly with the subject. He concluded that, in an overall sense, the Riparian site was superior to the subject.
[10]We consider that when the learned Member concluded that the Riparian site was superior to the subject he was referring to the subject site as a whole, not the northern portion. This is evident in RJ[153] where the learned Member said:
"I accept the evidence of both valuers to the effect that the Riparian site is superior in location and access when compared with the subject. I also accept Mr Jackson's evidence that its shape is superior to that of the whole of the subject land and that the light and air easements over this site are far less restrictive to development when compared with those over the subject. I also consider that the Riparian site probably involved some additional building costs due to site difficulties. However, on balance I do not consider them to be of such significance as to make it unreasonable to compare this site directly with the subject."
The references in that paragraph to the whole of the subject land and the easements over the subject land can only be read as indicating that the Member was comparing Riparian with the subject land as a whole. We consider that the reference to the subject in RJ [128] should be read similarly.
[11]The Riparian site is burdened by a number of easements including two light and air easements, G and I, which encumber the site for the benefit of adjoining land. Easement I is restricted to between RL17 and RL20. Easement G is registered above the plane RL20. The learned Member accepted "Mr Jackson's opinion that while Easement NN prevents development over the entire southern area of the subject land, Easements G and I were not so prohibitive as evidenced by the substantial high rise development carried out on the site."(RJ[132]). Although Easements G and I were not registered at the date of contract of sale they were registered before settlement and, the Court said, it seemed almost inevitable that their effect would have been known and factored into the purchase price paid.
[12]The impact of Easements G and I was in issue between the parties. Senior Counsel for the appellant, Mr Traves SC, said that there was no evidence that they reduced the value of the site, nor any finding that they did so, and that no one had said that the existence of the easements inhibited the development of the site. Further, it was not part of the respondent's case that the easements reduced the value of the Riparian site.
[13]Clause 2 of the Grant of Easement G provides in part that "The Grantor must not construct any improvements in the airspace shown on the plan …". Since the easement was operative above the plane RL20, no development was permitted above that plane over an area of 1,746 m². Mr Kirby's evidence confirmed this [R330]. Easement I also was in place over part of the same area between RL17 and RL20. Although, as the learned Member found, Easement NN prevents development over the whole of the southern area of the subject, Easement G and I appear to have a greater impact on the Riparian site than Easement NN on the subject as a whole. Easement NN prohibits development above RL14.2 over 34% of the whole of the subject. Easement G prohibits development above RL20 over 47% of Riparian and Easement I is in place between RL17 and RL20 over some of that area We consider therefore that Easement G in particular would have affected the development options available on the Riparian site. Although none of the witnesses said that Easements G and I reduced the value of Riparian, there was evidence that Easement NN on the subject had reduced the value of the southern portion of the subject. Easement NN was similar in nature to Easements G and I although more extensive in its impact on the southern area of the subject. In view of the fact that Easements G and I affected 47% of the site area of Riparian we consider that it was legitimate for the Member to infer that the value of the Riparian site was adversely affected because of the restrictions on development options.
[14]The Court said that the sales of Aurora, Felix and Emerald Towers provided the best evidence of the value of the northern area. Applying those sales, the Court found that, excluding any premium for river frontage, the site improved value of the northern section, as part of the subject, was $3,500/m². There has been no challenge to that finding. The Member then determined the site improved value of the northern area to be $4,200/m² which reflected a premium of 20%.
The 20% premium
[15]The learned Member said that the premium of 20% was sufficient to take into account any advantages associated with river frontage and the distinction, if any, between residential and commercial sales. He also said that that rate was sufficient to bring into account Easements G and I over the Riparian site.
[16]Mr Traves SC submitted that the bases stated by the Court did not justify the premium. Moreover, the allowance of the premium was inconsistent with the evidence relating to the Riparian sale.
Advantages of riverfront land
[17]As to 'any advantage associated with river front land', Mr Traves SC submitted that –
·the rental evidence did not reveal any premium for river front land;
·the valuers' evidence as to the analysed sales per square metre of Riparian as compared with Aurora and Felix and the Court's assessment of the value of those sales did not support a premium of 20%;
·the evidence suggested that construction on the subject was potentially more difficult than Aurora and Felix;
·there was no evidence which pointed to a premium of 20%.
[18]The subject land has an 88.2 metre frontage to the Brisbane River, although as explained above, no significant development is possible on the southern portion, which has a river frontage of about 50 metres. As well as the river frontage, the northern section of the subject has the benefit of unrestricted river views directly across the river and to the north and south.
[19]Mr Kirby was the valuer who gave evidence in the Land Court on behalf of the respondent. He identified the sales of Felix and Aurora as being closest in quality to the subject saying that both had been chosen for their proximity to the Brisbane River and the views afforded to the sites although neither was as well located as the subject. Felix and Aurora are non-riverfront sites now developed with high rise residential apartments.
[20]In valuing the subject, Mr Kirby added a premium of 40% to the analysed figures in Felix and Aurora to allow for the subject's unobstructed arc of river views which could not be built out, and the attendant advantages of river frontage. It appears that he calculated that premium by relying on –
(i) an earlier Land Court decision, Lamb v Chief Executive, Department of Natural Resources, Mines and Water [2005] QLC 0038 where a valuation was discounted by 20% because of the potential obstruction of views; and
(ii) his analysis of sales of building unit lots which, he said, indicated that apartments with a view of the Story Bridge and environs attracted a premium of up to 20% compared with those with more distant views of the river, or city views.
[21]The learned Member rejected Mr Kirby's reliance on the Lamb decision. He also said that Mr Kirby had put forward no reliable evidence supporting a premium of 40% particularly where such a significant part of the subject's river frontage could not be commercially developed.
The rental evidence
[22]The Member said that he would have expected evidence showing a material increase in rents or probative evidence of some kind to justify such a significant premium. An examination of the evidence suggested that the only difference in rents achieved for river front and non-river front land was about 5% for buildings at the highest end of the scale. The learned Member considered that that difference might be explained by reference to views, as opposed to river frontage per se, and the prestige associated with particular buildings.
[23]We accept that the rental evidence is equivocal in respect of a 5% premium and does not support a premium of 20% for riverfront land.
The sales
[24]The learned Member said that the analysed rate per square metre arrived at by both valuers when addressing the Riparian sale suggested the existence of a premium for river frontage when compared with the analysed rates per square metre derived from the later sales of the Aurora and Felix sites. He had previously decided that 120 Edward Street was a sale which was to be used with some caution. The Court analysed the site improved values of the Aurora sale to $3,800/m², Felix to $3,850/m² and Riparian to $4,000/m².
[25]Mr Traves SC submitted that neither the valuers' evidence nor the Court's assessment of the value of those sales supported a premium of 20%. Senior Counsel said that the Court’s analysed figures show riverfront advantages of only 5.2% (Riparian over Aurora) and 3.9% (Riparian over Felix).
[26]We consider that that direct mathematical comparison between the analysed rates of Aurora and Felix on the one hand and Riparian on the other does not take into account the disadvantages of the Riparian site as compared with the other two properties. We concluded above that it could be inferred that Riparian's value was adversely affected by Easements G and I. Aurora and Felix were not encumbered by air and light easements of the same nature as Easements G and I. In addition, there were more construction difficulties in developing Riparian as compared with Aurora and Felix. The direct mathematical comparison shows that despite those disadvantages, Riparian showed a premium of 5.2% over Aurora and 3.9% over Felix. It follows that, absent those disadvantages, the Riparian sale would have shown a greater premium over Aurora and Felix which demonstrates that a significant premium was paid for a site with riverfront location.
Conclusions as to the advantages of riverfront land
[27]In our opinion, the premium allowed by the Land Court for riverfront advantages was intended to take into account the unrestricted river views enjoyed by the northern area and any other advantages associated with river front land.
[28]As to the views, although the learned Member rejected the use of the decision in Lamb as justification for a 20% premium, there remained Mr Kirby's evidence that sales of apartments with bridge/river views attracted a premium of 20%. While the learned Member accepted that the buildings on Felix and Aurora offered significant city and river views from the upper levels, it appears that such views were not available or were restricted from the lower floors. Those sites were, therefore, inferior to the subject in this respect.
[29]In addition to its expansive and unrestricted river views, the learned Member took into account the river front location of the subject land. In support of this, he noted that the river views available from the subject could not be built out which, he said, was a characteristic directly related to river frontage. Again, Felix and Aurora did not have this advantage. Although the advantages of river frontage are offset to some extent by the difficulties of construction, we consider that the availability of river views which could not be obstructed is a significant advantage which should be factored into the calculation of a premium.
[30]We consider therefore that the evidence, including the Riparian sale, supported the allowance of a substantial premium for the riverfront location of the subject land, as compared with Aurora, Felix and Emerald Towers.
The distinction between residential and commercial sales
[31]Senior Counsel for the appellant submitted, in relation to "the distinction if any between residential and commercial sales" that -
·the use of the words "if any" suggested that any premium for the component was minimal;
·the court's finding at RJ[155] was, in effect, that the highest and best use of the subject might equally have been residential as commercial. This suggested that any premium for the distinction between the two should, similarly, be minimal;
·the court appeared to have found that a premium still seemed to exist for commercial sites but "the difference was only a small one" (RJ[113]).
[32]The learned Member decided, at RJ[41], that the highest and best use of the subject was for commercial development and we do not consider that he retreated from that conclusion in RJ[155]. In coming to that conclusion, the Court relied on the evidence of both Mr Kirby and Mr Jackson that sales of land to be developed for office space yielded a slightly higher dollar rate per square metre but noted that residential and commercial buyers do not necessarily pay the same price for the same sites. Since the primary sales relied on by the Court for the valuation of the northern area were of properties developed for residential purposes, it was not unreasonable to factor an amount into the premium to allow for that admittedly small difference.
The relevance of Easements G and I over Riparian
[33]As explained above, the learned Member relied on the Riparian sale for the purpose of establishing that a premium should be applied for the riverfront location of the subject. As the existence of Easements G and I affected the development potential of the Riparian site, as compared with Aurora and Felix, the effect of the easements was a matter to be taken into account in assessing the quantum of that premium.
Whether the finding of a 20% premium was inconsistent with the Riparian sale
[34]Mr Traves SC also submitted that the Land Court’s determination of the site improved value of the subject's northern area at $4,200/m² was excessive because it exceeded the Court’s adopted rate of $4,000/m² for the site improved value of Riparian whereas the Court had found that Riparian was, in an overall sense, superior to the subject.
[35]We do not accept that the adoption of a rate of $4,200/m² for the northern area of the subject was inconsistent with the Court's findings as to the rate achieved at Riparian. The Court’s determination of the site improved value of the whole of the subject site at $12,026,910 equals a rate of $3,561/m² which is considerably lower than Riparian’s rate of $4,000/m² and is consistent with the Court’s finding that, overall, the Riparian site is superior to the subject. Although the figure of $4,200/m² for the northern area is higher than the overall rate for Riparian, the existence of Easements G and I over Riparian as well as the additional building costs associated with Riparian appear to justify a higher rate per square metre for the subject’s northern area as compared with the rate achieved for Riparian as a whole.
Conclusions as to value of the northern area
[36]The evidence before the Land Court did not establish precisely the quantum of the premium to be applied for the riverfront location of the subject, including views, as compared with the sales although there was sufficient evidence to show that the premium should be substantial.
[37]In addition, an allowance should be made, in calculating the premium, for the distinction between residential and commercial sales.
[38]In the absence of clear evidence as to the amount of the premium, the learned Member did the best that he could with all of the evidence and formed the opinion that the rate of $4,200/m² should be applied to the northern area. We do not consider that the Member was in error in his assessment of the evidence or in his reasoning.
Value of the Southern Area
[39]The Land Court assessed the value of the southern area of the subject at $2,310/m² by applying a discount of 45% to the assessed value of the northern portion. Mr Jackson had valued the southern component by reference to its use, independently of the northern area. Since no ground or above ground development was achievable on the southern area, that 'independent' use was limited to, principally, a subterranean car park. On that basis Mr Jackson adopted a rate of $500/m² for the southern area which represented approximately 17% of his assessment of the northern component of Lot 10 ($3,000/m²). The respondent had contended for a rate of 70% of the northern area.
[40]The Land Court adopted a different approach. The learned Member said that, but for the impediments affecting the southern area, that area would have a site improved value of $4,200/m². The impediments to development warranted a significant discount. He considered that a discount of 83% was too high because the southern area provided the balance area with light, air and car parking benefits, superior vehicular and pedestrian ingress and egress to the site and unrestricted river views which were effectively secured by Easement NN. While the learned Member acknowledged that there was no reliable evidence justifying an exact assessment of the value of the encumbered area, he considered that a discount of 45% was appropriate.
[41]Senior Counsel for the appellant submitted that the Land Court's assessment of the value of the southern area was excessive because –
·the Court had misconceived Mr Jackson's evidence;
·the Court's reasoning involved duplication by taking into account matters that had been allowed for in the valuation of the northern area;
·the Court's reference to views secured by Easement NN was apt to lead to error;
·the percentage value of the southern section was assessed on the inflated northern portion figure;
·the figure for the northern area included a premium for river frontage. Lot 10 could not take advantage of its riverfront location. Moreover, proximity to the river caused additional expense;
·the sale of the volumetric lot (Lot 11) in 2003 indicated that the assessed value of Lot 10 was excessive.
[42]We do not consider that the Land Court misconceived Mr Jackson's evidence in relation to this issue. The Court has taken a different approach from Mr Jackson but we can find no error in the Court's approach. Mr Jackson notionally treated the southern area as a separate parcel of land and valued it according to its perceived use. While that might be appropriate in some segmentation exercises, we can see no reason to adopt that methodology in a case such as this where the learned Member was able to make a finding that, but for its development impediments, the southern area would have the same value as the northern area. We therefore consider that it was appropriate to discount that figure to allow for the impediments rather than to attempt to value the southern portion on a stand alone basis.
[43]The valuation is made on the basis that the southern and northern areas constitute one property the site improved value of which has been determined at $4,200/m², leaving aside the impediments on the southern area. The attributes of the whole of the property e.g. river frontage, access, shape etc have been taken into account in that determination. While Easement NN and Lot 11 substantially impede the development of the southern area, there is little evidence indicating that the development of the site as a whole has been significantly affected by those impediments. Easement NN, considered separately, appears to limit the development options for the site by restricting the choices as to the location of any building, in the same way as Easements G and I affect the Riparian site. The existence of Lot 11 adds a further level of complication. The combined effect of the two impediments is that any above ground development must be located on the northern section. However, there being no evidence or submissions to the contrary, we understand that, overall, the development capabilities of the subject site remain. Retention of the southern area in a largely undeveloped state enables the northern portion to be developed with a building with river views to the south, which cannot be obstructed, and which has light and air benefits flowing from the south. The southern area also provides the underground car park and superior access to the site.
[44]Thus the southern area with the impediments in place plays a substantial role in the maintenance of the value of the property as a whole. That conclusion does not involve a double counting but rather a recognition of the benefits which remained after the excision of Lot 11 and the grant of Easement NN. Since those benefits survived they were factors to be taken into account in determining the residual value of the southern area. On that basis, the Court found that the discount to be applied to that area should be 45%. That figure takes into account the substantial impediments to the development of the southern area of Lot 10. It also takes into account the substantial contribution that the southern area makes to the value of the site as a whole. There is no duplication in that process and, given the development capability retained by the site as a whole, we do not consider that the learned Member has erred in applying a discount of 45% to the southern area.
[45]At the hearing of the appeal Mr Traves SC referred us to Mr Jackson's evidence that if, as required by the Valuation of Land Act, it were assumed that the improvements on the subject land did not exist, the area below the southern part of Lot 10 would be very difficult to develop in the presence of Lot 11 and its improvements. Mr Jackson said that difficulty would be a matter which would have to be taken into account in valuing Lot 10 because it may mean that the area was not worth developing.
[46]The evidence is incomplete in that it does not discuss the effect of the easements which benefit Lot 10, nor the effect on the car park area if the northern part of the subject were, similarly, assumed to be unimproved. We are not persuaded that this evidence indicates that there has been an error in the Land Court's reasoning or conclusion.
[47]The appellant also submitted that the valuation of the southern area failed to take into account the fact that that area could not be developed to take advantage of its riverfront location, whereas the figure for the northern area included a premium for river frontage. Moreover, it was submitted, proximity to the river caused additional development expense.
[48]Although the southern area cannot be developed to take advantage of its riverfront location we do not consider that there should be any further discount to allow for that factor. The learned Member took into account the impediments to the development of the southern area in his assessment of the appropriate discount to be applied and there is nothing to indicate that he failed to include the inability to take advantage of the riverfront location of that area. He was certainly aware of that inability as evidenced by his observation in RJ[119] that a significant part of the river frontage was unable to be commercially developed. As stated previously, although the southern area cannot be developed above Lot 11, it does provide benefits to the northern area which include allowing that area to be developed to its full capacity. We also consider that the Member was mindful of the difficulties in developing riverfront land and can see no error in that respect.
[49]The appellant also submitted that, in determining the value of the southern component, the Land Court had failed to properly take into account two sales of Lot 11 (the volumetric lot) and the prices paid. Lot 11 was sold in May 2002 for $3,380,000 and November 2003 for $3,900,000. Allowing for the value of the car parks included in the sales, Mr Kirby analysed the May 2002 sale to $2,191/m² ($2,499,931) and the November 2003 sale to $2,647/m² ($3,020,227). Mr Traves SC submitted that –
·at the Court determined rate of $4,200/m² the southern area of 1,141 m² was worth $4,792,200 (before allowing for the impediments). If the sale prices of Lot 11 are deducted the balances are
- for the May 2002 sale, $2,292,269 or $2,009/m²
- for the November 2003 sale, $1,771,973 or $1,553/m²;
The Court's valuation of the southern area, with Easement NN in place, at $2,310/m² exceeded both those figures;[1]
[1]In fact, the Courts assessment of the southern area at $2,310/m², was made on the basis that both Easement NN and Lot 11 were in place.
·alternatively, if the sales prices of Lot 11 are added to the value of the southern area as assessed by the Court ($2,635,710) the results are -
- for the May 2002 sale, $2,635,710 + $2,499,931 = $5,135,641 or $4,501/m²,
- for the November 2003 sale, $2,635,710 + $3,020,227 = $5,655,937 or $4,957/m²;
These rates include the discount allowed by the Court for the effect of Easement NN yet they exceed the Court's pre-discount figure of $4,200/m² by 7% to 18%;
·the appropriate approach was to assess the value of the southern portion on the basis of its own worth not on the basis of the value it provides the northern area.
[50]Although Mr Kirby did have regard to the sale of Lot 11, the learned Member said that he (Mr Kirby) did not place much weight on it. There is no evidence to support the proposition that the value of the southern area of the subject can be ascertained by subtracting the sale price of Lot 11 from the Court determined rate for that area, absent impediments, of $4,792,000 ($4,200/m²). Similarly, there is no evidence that the value of the southern area can be established by adding the sale price of Lot 11 to the value of the southern area as determined by the Court. Lot 11 is a separate lot which, because of its limited height, appears to have a completely different use from Lot 10 and sites such as Riparian. In those circumstances, it cannot be assumed, in the absence of evidence, that the value of the separate parts of this area (ie Lot 11, and the subterranean area and airspace (subject to Easement NN) on Lot 10,) would equal the value of the whole. Moreover, we have noted that the date of the second sale of Lot 11 was November 2003, some twelve months after the last date of valuation. There is no evidence before us to establish the state of the market during that twelve month period and therefore we do not consider that an after-date sale can be used in the valuation.
Conclusion
For the reasons set out above, we consider that there has been no error by the Land Court in the determination of the unimproved values of the land.
ORDERS
1.The appeals are dismissed.
2.The unimproved value of Lot 10 on SP 151098 County of Stanley, Parish of North Brisbane as at 1 October 2001 and 1 October 2002 is affirmed at Eight Million, Seven Hundred Thousand Dollars ($8,700,000).
WHITE J
JUSTICE OF THE SUPREME COURT
RP SCOTT
MEMBER OF THE LAND COURT
CAC MacDONALD
MEMBER OF THE LAND COURT
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