POLARIS METALS PTY LTD and VALUER GENERAL - [2023] WASAT 105

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: VALUATION OF LAND ACT 1978 (WA)
CITATION:   POLARIS METALS PTY LTD and VALUER GENERAL [2023] WASAT 105
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
DR S WILLEY, SENIOR MEMBER
MISS K BINGHAM, SESSIONAL MEMBER

HEARD:   17, 18 OCTOBER AND 29 NOVEMBER 2022; AND 13 JUNE 2023
DELIVERED          :   10 NOVEMBER 2023
FILE NO/S:   DR 217 of 2021
BETWEEN:   POLARIS METALS PTY LTD
Applicant
AND
VALUER GENERAL
Respondent

Catchwords:

Valuation of land - Crown leases - Remote land - Mining use - Highest and best use - 'Strategic' land - Luton principle - Valuation methodology - Income capatilisation methodology - No directly comparable rents - Comparison of rents - Role of Tribunal

Legislation:

Environmental Protection Act 1986 (WA)
Land Administration Act 1997 (WA)
Mining Act 1978 (WA)
Mining Regulations 1981 (WA), Sch 2
State Administrative Tribunal Act 2004 (WA), s 27(2)
State Administrative Tribunal's Rules 2004 (WA), r 39B(6)
Valuation of Land Act 1978 (WA), s 4(1)(b)(vii)(I), s 18, s 24, s 32, s 32(1), s 32(3), s 33, s 33(1)

Result:

The unimproved value of the subject land as at 1 August 2019 was $2,081,250

Category: B

Representation:

Counsel:

Applicant	:	M Mckenna & Ms R Kenny
Respondent	:	C Ide

Solicitors:

Applicant	:	Gilbert + Tobin
Respondent	:	State Solicitor's Office

Case(s) referred to in decision:

101 Collins Street Pty Ltd v City of Melbourne (Unreported, Supreme Court of Victoria, Batty J, 2 April, 1996)
AMP Life Ltd and Valuer-General [2011] WASAT 8
Ardoch Pty Ltd v Valuer- General (No 2) (2006) 148 LGERA 408
Avila and Main Roads Western Australia [2023] WASAT 79
Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541
Brisbane City Counsel v Valuer-General (Qld) (1978) 140 CLR 41
Bronzel v State Planning Authority (1979) 21 SASR 541; (1973) 32 LGRA 170
Capaldo v Capaldo [2011] SASCFC 115
Chevron Australia Pty Ltd and Valuer-General [2019] WASAT 7
Commissioner of State Revenue v OZ Minerals Ltd [2013] WASCA 239; (2013) 46 WAR 156
Duffy v The Minister for Planning [2003] WASCA 294
Fenton Nominees Pty Ltd v Valuer General (1981) 27 SASR 258
Hill v Commissioner of Highways (1966) 13 LGRA 369
ISPT Pty Ltd v Melbourne City Council (2008) 20 VR 447; [2008] VSCA 180
J B Investments Pty Ltd and Valuer General [2006] WASAT 55
Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409
Lenz Nominees Pty Ltd v The Commissioner of Main Roads [2012] WASC 6; (2012) LGERA 58
Luton v Valuer-General (1971) 23 LGRA 180
McKay v Commissioner of Main Roads [2013] WASCA 135
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223
Perpetual Trustee Company Limited v Valuer General's Department [1994] NSWLEC 98
Pyman v Valuer-General [2016] SACAT 1
Sheath v Valuer-General (1963) 10 LGRA 20; (1963) 64 SR (NSW) 415
Tetzner v Colonial Sugar Refining Co Ltd [1958] AC 50
Trandos & Ors v Western Australia Planning Commission [2007] WASCA 346
Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295
Western Mining Corporation Ltd v Valuer General [1988] WASC 249
Western Mining Corporation Ltd v Valuer General [1989] WASC 124; (unreported, Supreme Court, 15 August 1988)

REASONS FOR DECISION OF THE TRIBUNAL

Introduction

This is an application for review of the respondent's determination of an objection to the determination of the subject land's unimproved value (UV) as at 1 August 2019 (being the date of valuation – the DOV).
The applicant is the lessee of the subject land which is contained in two lots which together occupy nearly 490ha of land in the Shire of Coolgardie (Shire).
The owner of the subject land is the State of Western Australia (State) which has granted the leases, pursuant to the Land Administration Act 1997 (WA) (LAA), to the applicant, which uses them for purposes related to the mining of iron ore.
Such arrangements are unusual, and the parties agree that there were no directly comparable rents at the DOV.
Each party relies on a valuation prepared by an expert valuer which refers to other rents. The resulting valuations are vastly different; the expert called by the respondent, Mr Fern, is of the opinion that the UV of the subject land as at the DOV is nearly $6m, while Mr Chapman, upon whom the applicant relies, is of the view that it is approximately $1m.
For the reasons that follow, we are of the view that the UV of the subject land is $2,081,250.
Accordingly, the decision of the respondent the subject of review should be set aside and substituted with a decision that the subject land's UV as at the DOV was $2,081,250.
We will hear the parties as to what other, if any, orders should be made to give effect to our reasons and for any ancillary purposes.

'Protected' Material

Much of the evidence relied upon by the parties concerns the rent paid by other entities not party to these proceedings.
Such information is confidential and commercially sensitive. The manner in which written evidence and submissions was prepared and filed reflected that fact in that it identified certain material as 'protected'.
Indeed previous orders have been made that reflected the confidentiality and commercially sensitive, such that limits were placed on the persons who may access at least some of that material.
However, no orders appear to have been made under s 62 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
In what follows, we have referred to relevant properties in a way that anonymises them. An Annexure has been prepared which cross‑references the anonymised names with those names used in the evidence. An order will be made under s 62 of the SAT Act prohibiting publication of the Annexure.

The Facts

What follows is taken, with some minor changes and some re‑arranging of paragraphs, from the respondent's Statement of Issues, Facts and Contentions of 25 March 2022 (Respondent's SIFC)[1], with which the applicant agreed, (albeit with some reservations as to relevance).[2]

The Subject Land

[1] Exhibit 1, pages 372 - 381.

[2] Exhibit 1, pages 382 - 389.

The Subject Land consists of two lots; Lot 500 on Deposited Plan 68972 and described in Crown Land Title Volume LR3160 Folio 83 (Lot 500), and Lot 501 on Deposited Plan 409173 and described in Crown Land Title Volume LR3026 Folio 170 (Lot 501).
Lots 500 and 501 are contiguous land parcels located within the Shire, in the southwest of the Goldfields-Esperance region, about 83 kms west of Coolgardie and 75km east of Koolyanobbing.
The Subject Land is proximate to iron ore deposits and abuts the northern side of the Trans-Australian railway line.
The Subject Land has a combined area of 4,899,000m² (489.9 ha); Lot 500 is 427.1ha and Lot 501 is 62.8ha.
Both lots are zoned 'Rural' under the Shire's local planning scheme.
The Subject Land is owned by the State and the responsible agency (i.e. that which administers the leases) is the Department of Planning, Lands and Heritage (DPLH).
At DOV, each lot was leased to the applicant. Lot 500 is leased by the applicant for the permitted use of "Rail Siding, Iron Ore Processing and Storage". Lot 501 is leased by the applicant for the permitted use of "Rail Siding/Tie-in-Point".

The Carina Iron Ore Project

The Subject Land is part of the Carina Iron Ore Project (Carina Project), which includes the mining of iron ore from an open cut pit located approximated 50 kilometres north-northwest of the Subject Land, and the haulage of ore by road from the pit to the Subject Land.
As at DOV, the following was constructed on the Subject Land:
•Crushing and screening plant
•Product stockpile area
•Power generation site
•Water storage dam
•Loading area
•Portable office
•Lunch room and ablutions buildings
•Rail loop line
In addition, as at DOV:
(a)other Carina Project infrastructure was constructed in the vicinity of the Subject Land, including the haul road between the pit and the Subject Land, a workers' accommodation camp located 3 kilometres north of the Subject Land, and associated access roads; and
(b)a sealed airstrip was also constructed, approximately 800 metres northeast of the workers' accommodation camp as well as a road connecting the airstrip to the camp.

Approvals under the Environment Protection Act 1986 (WA) (EPA Act)

Although the applicant denies the relevance of this, which is a matter to which we will return below, it is a fact that in October 2010 the Environmental Protection Authority (EPA) published Report 1368 Carina Iron Ore Project, which recommended approval of a proposal for the development of the Carina iron ore mine. The proposal as assessed by the EPA was described by it as follows:
The [Carina Iron Ore Project] proposal is to develop an iron ore mine on the Yendilberin Hills located approximately 60km north-east of Koolyanobbing…
The … proposal components … include:
•open cut mining of a single pit and associated mine infrastructure …;
•development of an approximate 50 km haul road for ore haulage to the rail siding and for access to the minesite;
•development of train loading facilities to access the existing Trans Australian Railway;
•crushing and screening plant, stockpile areas and associated facilities (i.e. workshop, hard stand areas) located at the rail siding; and
•accommodation village and associated facilities (i.e. water treatment plants, power generation units) located near the rail siding.[3]
[3] Exhibit 1, page 51.
On 28 January 2011, the Minister for the Environment published Ministerial Statement 852, by which he approved the proposal the subject of Report 1368.[4]
[4] Exhibit 1, pages 250 - 300.

The Leases

The lease of Lot 500 commenced on 1 April 2011 with a term of 10 years and a further option of another five (Lot 500 LAA Lease).[5] The initial rent was $1500pa payable six monthly and in advance. Six Rent Review Dates are given, being 1 April on each of 2014, 2017, 2020, 2023, 2026 and 2029. Clause 3.2 provides:
(a)The Rent will be varied on each Rent Review Date in accordance with subclause (b) below.
(b)On each Rent Review Date, the Rent will be varied to reflect the market rent as determined by the Minister in consultation with the Valuer General as referred to in the Valuation of Land Act 1978.
(c)For the purpose of that determination, the market rent shall be taken to be the rent obtainable at the time of the Rent Review Date in a free and open market as if, all the relevant factors, matters or variables used in proper land valuation practice having been taken into account, the Leased Premises were unoccupied and let on similar terms to those contained in this Lease.
(d)…
[5] Exhibit 1, pages 302 - 333.
As noted above, the Permitted Use under the Lot 500 LAA Lease is 'Rail Siding, Iron Ore Processing and Storage'.[6] Clause 5.1 both requires that Lot 500 must be put to the Permitted Use and that it be put only to the Permitted Use.
[6] Clause 5.1(a) and Item 4 of the Schedule.
The lease of Lot 501 commenced on 1 January 2018 with a term of 10 years (Lot 501 LAA Lease).[7] The initial rent was $500pa payable six monthly and in advance. Three Rent Review Dates are given, being 1 April on each of 2020, 2023, 2026. Clause 3.2 is in the same terms as that clause in the Lot 500 LAA Lease.
[7] Exhibit 1, pages 335 - 364.
As noted above, the Permitted Use under the Lot 501 LAA Lease is 'Rail Siding/Tie-in-point'.[8] Clause 5.1 both requires that Lot 501 must be put to the Permitted Use and that it only be put to the Permitted Use.
[8] Clause 5.1(a) and Item 4 of the Schedule.

Valuation and Procedural History

In previous years, the UV of the Subject Land is recorded as follows on the Shire's Rates Notices: $15,000 (Lot 500 only) in 2014,[9] $11,500 (Lot 500 only) for 2015 to 2018 inclusive;[10] and $48,000 in 2019 for Lots 500 & 501.[11]
[9] Exhibit 1, page 687.
[10] Exhibit 1, pages 689, 692, 696 and 699.
[11] Exhibit 1, page 703.
In early 2017, and presumably for the purpose of that year's rent review of Lot 500, that lot was valued by Mr Dominic Audino of Landgate, who noted that the last previous review was in February 2014, noted 'limited comparable evidence available' and concluded that Lot 500's UV was $45,000. He then applied three alternative capitalisation rates of 4%, 5% and 6% before adopting a rental of $2000pa.[12] For reasons that are not apparent, that valuation is not recorded on or otherwise reflected in the Shire's Rates notice for 2017 or 2018.
[12] Exhibit 2, page 933.
Mr Audino also valued Lot 501 in 2017 and refers to the applicant as the 'proposed lessee' of that lot. He made similar comment as to the limited comparable evidence, concluded that Lot 501's UV was $10,000 and then applied three alternative capitalisation rates of 4%, 5% and 6% before adopting a rental of $500pa.[13]
[13] Exhibit 2, page 939.
The respondent's original valuation of the Subject Land (i.e. Lots 500 and 501) at DOV was $6,466,000 (including GST) (Original Valuation).[14]
[14] Respondent's SIFC para 6; Exhibit 1, page 373.
That valuation was noted in the Shire's rates notice, which provided that the annual rates for the Subject Land was $714,577.08,[15] a considerable increase from the previous year's rates of $5,304.62.[16]
[15] Exhibit 1, page 708.
[16] Exhibit 1, page 703.
On 8 September 2020, the applicant served a written objection to the original valuation, pursuant to s 32 of the Valuation of Land Act1978 (WA) (VLA) asserting that the valuation is 'not fair and is unjust, alternatively that it is inequitable or incorrect'.[17]
[17] Respondent's SIFC, para 7; Exhibit 1, page 373.
On 8 September 2021, the Respondent advised the applicant that the objection had been allowed in part and the original valuation had been revised to $5,988,000 (including GST) (Revised Valuation), which is the valuation currently on the Valuation Roll for the DOV.[18]
[18] Exhibit 1, pages 8 - 14.
On 6 October 2021, the applicant advised that it sought review by the Tribunal of the revised valuation, pursuant to s 33 of the VLA[19] and, on 8 October 2021, the matter was referred to the Tribunal pursuant to s 33(2) of the VLA.[20]
[19] Exhibit 1, page 28.
[20] Exhibit 1, page 29.

The Legislative Framework

Section 18 of the VLA provides as follows:
For the purposes of a general valuation, the Valuer-General shall determine, or cause to be determined, with respect to rateable land, the gross rental value or the unimproved value, as the case requires, so far as that value is required by a rating or taxing authority for the purposes of assessing any rate or tax or is, in the opinion of the Valuer-General, reasonably likely to be so required before the next general valuation of the land is made.
The two expert valuers have each proceeded on the basis that it is the UV of the Subject Land, rather than the gross rental value, which is to be determined.
That appears to be due to the nature of the original request from DPLH, which sought the provision of 'unimproved market rental values' for various properties including the Subject Land.[21]
[21] Exhibit 1, page 36.
The term 'unimproved value' is relevantly defined in s 4(b)(vii)(I) of the VLA as:
the capital amount that an estate in fee simple in the land not including improvements might reasonably be expected to realize upon sale.
Section 32(1) of the VLA provides that '[a]ny person liable to pay any rate or tax assessed in respect of land who is dissatisfied with a valuation of such land made under Part III [of that Act]' may lodge an objection to the valuation.
Section 32(3) of the VLA provides that such an objection 'may be made on the ground that the valuation is not fair or is unjust, inequitable or incorrect, whether by itself or in comparison with other valuations in force under' the VLA.
Section 33(1) of the VLA confers a right of review by the Tribunal upon any party who made the objection and is dissatisfied with the resulting decision.

Onus/Burden of Proof

The question of an onus/burden of proof was not addressed by the parties in their submissions. Both appear to have proceeded on the unstated understanding that neither of them bears an onus as such but, rather, each must seek to persuade us that their position is the correct and preferable one.[22]
[22] SAT Act, s 27(2).
In our view that is the correct position to have taken but, given the lack of an easily accessible authority on the position, we have determined to address the issue explicitly.
The learned author of The Law Affecting Valuation of Land in Australia expresses the view that, generally speaking, 'the onus of proof rests on the party who asserts that the valuation is incorrect'.[23] In some jurisdictions that appears to have turned on relevant statutory provisions[24] but in others that appears less obvious.[25] In each case cited, however, the proceedings appear to have concerned an 'appeal' to a court, albeit that in some cases such an appeal was described as a hearing de novo.
[23] Alan Hyam, The Law Affecting the Valuation of Land in Australia, Federation Press 6^th ed, 689.
[24] See, for example, Brisbane City Counsel v Valuer-General (Qld) (1978) 140 CLR 41
[25] Fenton Nominees Pty Ltd v Valuer General (1981) 27 SASR 258 (Fenton) at 263 - 264; Ardoch Pty Ltd v Valuer- General(No 2) (2006) 148 LGERA 408 at [29].
In Fenton, Wells J held that in South Australia at the time, the appellant 'faces the practical necessity of showing that the Valuer‑General's value is too high'.[26]
[26] Fenton at 263 - 264.
That decision was expressly not followed in this State in relation to appeals to the Land Valuation Tribunal, the relevant predecessor to this Tribunal.
In Western Mining Corp[27] Nicholson J held that the provisions of the VLA, which granted a right of review to the Land Valuation Tribunal, provided an appeal by way of a hearing de novo. His Honour held that, therefore, 'the question of the status and the weight to be given to the valuation of the Valuer-General does not arise …' [28]
[27] Western Mining Corporation Ltd v Valuer General [1989] WASC 124; (unreported, Supreme Court, 15 August 1988) (Western Mining).
[28] Western Mining at 7 - 8. See also PT Ltd v Valuer-General (2002) 29 SR (WA) 330 at [100].
The same result has more recently accrued in South Australia. In Pyman[29], the South Australian Civil and Administrative Tribunal (SCAT) rejected the Valuer-General's submission that that Tribunal's jurisdiction, recently created at the time, replicated that of the previous jurisdiction of the Supreme Court which had been the subject of decisions such as Fenton.
[29] Pyman v Valuer-General [2016] SACAT 1 (Pyman).
In doing so, the SCAT referred to several statutory provisions comparable to those of the SAT Act to which we are subject. It held, amongst other things, that there is no presumption in favour of the Valuer-General and that neither party bears any onus of proof.[30]
[30] Pyman at [6] - [13].
In our view the decision in Western Mining is consistent with the statutory regime created by the SAT Act and there is, therefore, no onus or burden of proof on either party and, equally, the Revised Valuation carries no particular status or weight. Rather, it is our task to determine the UV of the Subject Land as at the DOV, based on the material (the evidence and submissions) put before us.

The Issues

In the Respondent's SIFC, the respondent identified the sole issue in question as the identification of the UV for the Subject Land as at the DOV having regard to its highest and best use (HABU) and 'comparable rents, using the income capitalisation method of valuation'.[31]
[31] Respondent's SIFC, para 27; Exhibit 1, page 375.
By contrast, in its Statement of Issues, Facts and Contentions (Applicant's SIFC), the applicant identified three issues[32] being:
1.Whether the Revised Valuation is correct;
2.If the answer to Q1 is 'no', what the valuation for the Subject Land should be; and
3.If the answer to Q1 is 'yes', whether the Revised Valuation is fair, just or equitable for the purpose of section 32(3) of the VLA.
[32] Applicant's SIFC, para 2; Exhibit 1, page 383.

The applicant also proposed the following as matters requiring determination by the Tribunal:
1.What are the comparable properties for the purposes of assessing the Revised Valuation;
2.What should the valuation be in light of those comparable properties;
3.Whether the value ascribed to the uses of the Subject Land in the Revised Valuation are correct having regard to comparable properties and types of tenure and alternate tenure options, such as a mining lease for crushing; and
4.Whether the Subject Land's location is in any way 'strategic'.[33]
[33] Applicant's SFIC, para 3; Exhibit 1, page 384.
Having had regard to the above and to the evidence called and the submissions made, we are of the view that the following issues arise for determination.
1.What is the HABU for the Subject Land?
2.Is the income capitalisation methodology appropriate?
3.What is the appropriate capitalisation rate?
4.Which, if any, of the rents identified by the two expert valuers are sufficiently 'comparable' to be used in valuing the Subject Land. In determining that issue:
(a)is the Subject Land 'strategic' and does it matter either way; and
(b)what effect, if any, does the application of the Luton principle have?
5.What methodology did each expert apply and, which, if either, is to be preferred? If neither, what is the role of the Tribunal?
6.Applying the preferred methodology to the comparable properties so identified, what is the UV of the Subject Land as at DOV?
7.If the UV of the Subject Land at DOV is (substantially) in excess of the Revised Valuation, does that make it unfair, unjust or inequitable pursuant to s 32(3) of the VLA and, if so, what discretion do we have to determine some other UV?

The Evidence of Ms Pullin

The witness statement of Jemimah May Pullin dated 19 August 2022[34] was accepted into evidence without challenge. Relevantly she says:
(a)Each of the Lot 500 LAA Lease and the Lot 501 LAA Lease were 'obtained to provide [the applicant] with tenure to build supporting infrastructure for the Carina Iron Ore Project' and now support the broader operations of Mineral Resources Limited (MinRes), of which the applicant is a wholly owned subsidiary;[35]
(b)That is, ore from other mines operated in the broader region by MinRes is transported to the Subject Land upon which is located the rail siding, crushing plant and stacker reclaimer;[36]
(c)The MinRes operations are the only mining operations in the region;
(d)General Purpose Lease 15/21, issued under the Mining Act 1978 (WA) (Mining Act) (GP/21) completely underlies Lot 500, although the two are not co-extensive; i.e. GP 15/21 occupies less than the entirety of Lot 500;[37] and
(e)The applicant obtained the Lot 500 LAA Lease and the Lot 501 LAA Lease because it was unable to build a railway siding on tenure obtained under the Mining Act.[38]
[34] Witness Statement of Jemimah May Pullin dated 19 August 2022 (Pullin Witness Statement); Exhibit 1, pages 738 - 743.
[35] Pullin Witness Statement, para 4 and 6 - 7; Exhibit 1, page 739.
[36] Pullin Witmess Statement, paras 14 - 15; Exhibit 1, page 739.
[37] Pullin Witness Statement, para 8; Exhibit 1, page 739. Pullin Witness Statement, JMP-1; Exhibit 1, page 742. Para 8(b) says that GP 15/21 underlies both Lots 500 and 501 but the associated map shows it underlying only Lot 500.
[38] Pullin Witness Statement, paras 4 and 6 - 7; Exhibit 1, page 739.

The Expert Evidence

Each party relied upon the expert evidence of a valuer; the applicant relied upon the evidence of Mr Chapman, and the respondent relied upon the evidence of Mr Fern.
Each of them produced (at least) an expert witness statement as well as contributed to a joint conferral statement. They gave evidence contemporaneously.

Mr Fern

Mr Fern relied on three witness statements[39] and contributed to the joint statement.[40]
[39] Witness Statement of Stephen Fern dated 10 June 2022; Exhibit 1, pages 1471 - 1531 (Fern Witness Statement); Responsive Witness Statement of Stephen Fern dated 1 July 2022 Exhibit 1, pages 1540 - 1580 (Fern Responsive Statement); Further Witness Statement of Stephen Fern dated 23 September 2022 Exhibit 1, pages 1581 - 1584 (Fern Further Witness Statement).
[40] Joint Statement of Expert Witnesses of 11 July 2022 (Joint Statement); Exhibit 1, pages 735 - 737.
In addition, we had before us a redacted version of the valuation of the Subject Land, prepared by Mr Fern dated 12 June 2020 (i.e. the Original Valuation)[41] and a copy of the Revised Valuation, also prepared by Mr Fern, which was provided to the applicant's solicitors under cover of an explanatory email.[42]
[41] Exhibit 1, pages 35 - 39.
[42] Exhibit 1, pages 8 - 14.
In his primary witness statement, Mr Fern describes himself as a licensed valuer of 30 years' experience who, since 2007, has undertaken valuations of 'specialised properties, including strategic industrial sites with processing plants'.[43] It will be necessary to return to the issue of 'strategic industrial sites'.
[43] Fern Witness Statement, para 3; Exhibit 1, page 1473.
In his report he sets out the necessary factual and other background and context, explains his valuation methodology, and summarises the rental evidence he has relied upon.
As part of the context and background, he describes the Carina Project in terms which are much as are set out at paragraphs [22] to [26] above.[44]
[44] Fern Witness Statement, paras 13 - 16; Exhibit 1, pages 1474 - 1475.
He also divides the Subject Land into three areas by reference to the approval granted under the EP Act:[45]
(a)The Disturbance Footprint (111ha) is that area which Mr Fern says is described within the Ministerial Statement as the area identified for 'Rail Siding and infrastructure' and 'rail siding borrow pits', being 83ha and 28ha respectively;
(b)The Development Envelope is an area located within the Subject Land (i.e. that is less than the Subject Land as a whole) within which the Disturbance Footprint is located. The Balance of the Development Envelope (212ha) is, therefore, the area of the Development Envelope minus the Disturbance Footprint;
(c)The area outside the Development Envelope (166.9ha).
[45] Fern Witness Statement, paras 19 - 23; Exhibit 1, page 1475.
We will discuss this approach in more detail below. For present purposes it is sufficient to note that the Development Envelope is no more than a line drawn around the Carina Project as a whole for the purposes of identifying the fullest extent of the approval of the Carina Project under the EP Act.
Within that Development Envelope, the Disturbance Footprint is, again, an area delineated for the purposes of the EP Act approval which identifies areas of land that may be 'disturbed' pursuant to that approval. A total of 814ha has been approved for disturbance, of which 111ha is within Lot 500.
To be clear, no part of the Development Envelope (including the Disturbance Footprint) is located on Lot 501. Indeed, the chronology shows that approval under the EP Act was first granted in 2011 and the most recent amendment (Attachment 4) to that approval was made in September 2016, 15 months before the lease of Lot 501.
Mr Fern states that there 'are no sites in Western Australia which are directly comparable to the subject with comparable attributes which are privately owned… [a]s such, there is no evidence of sales of fee simple land that may be used for comparison purposes.'[46]
[46] Fern Witness Statement, para 33; Exhibit 1, page 1478.
Accordingly, he concludes that the 'income approach' is the appropriate method of valuation.[47] However, he also states that '[g]iven the specialised nature of the Subject Land, comparable market-based rental evidence is limited.'[48]
[47] Fern Witness Statement, para 37; Exhibit 1, page 1478.
[48] Fern Witness Statement, para 38; Exhibit 1, page 1478.
Mr Fern refers to Mr Audino's 2017 valuations and determines that none of the properties he referred to could, in Mr Fern's view, be relied upon for comparative purposes.[49]
[49] Fern Witness Statement, paras 39 - 52; Exhibit 1, pages 1479 - 1481.
He then summarises the 'rental evidence' relied upon by Mr Chapman under two headings – railway leases[50] and iron ore processing rents.[51]
[50] Fern Witness Statement, paras 54 - 88; Exhibit 1, pages 1481 - 1485.
[51] Fern Witness Statement, paras 89 - 90; Exhibit 1, page 1486.
Mr Fern concludes that none of the railway lease rents relied upon by Mr Chapman reflect market rent and, in his view, therefore cannot be relied upon. [52] He is also critical of the suggestion of the applicant that the tenement fees and charges applied under the Mining Act are an appropriate guide to the market rent of the Subject Land.[53]
[52] Fern Witness Statement, para 88; Exhibit 1, page 1485.
[53] Fern Witness Statement, para 90; Exhibit 1, page 1486.
He then repeats the view that he is not aware of any comparable market‑based rental evidence within the Subject Land's general locality and says that, accordingly, he has relied upon leases in the Pilbara, each of which, he says, is 'land leased for a comparable utility, being strategic industry uses'.[54]
[54] Fern Witness Statement, para 92; Exhibit 1, page 1486.
He then refers to an appendix which summarises 10 rental properties and says that, in his view, two rents are 'considered most comparable' to the Subject Land, both of which are domestic gas plants: Fern #4 and Fern #5.[55]
[55] Fern Witness Statement, para 93; Exhibit 1, page 1486.
That finding was reached despite him noting a considerable difference in the size of the Fern #4 and Fern #5 leases compared to the Subject Land: 489.9ha compared to 109.3ha (Fern #5) and 93.7ha (Fern #4).
In an attempt to make allowances for that size difference, Mr Fern divided the Subject Land into the three areas described above and applied different rates for each of them:
(a)For the Disturbance Footprint (111ha), which he noted was an area comparable to the (total) size of the Fern #5 lease, he applied a rate per ($0.57/m²/pa), which is almost identical to the Fern #4 rate.
(b)For the Balance of the Development Envelope he applied a rate of $0.01/m²/pa, which he considered a 'minimal rate'; and
(c)For the area outside the Development Envelope (166.9ha) he applied a 'nominal rate' of $0.0005 m²/pa.
The result was a rent calculated as follows:[56]
Disturbance Footprint area:            $631,200pa (111ha @ $0.57m²/pa)
Balance of Development Envelope:    $ 21,200pa (212ha @ $0.01m²/pa)
Area outside Development Envelope: $     830pa (166.9ha @ $0.0005m²/pa)
Total net rent:       $653,230pa
[56] Fern Witness Statement, Appendix 4; Exhibit 1, page 1531.
He then applied a capitalisation rate of 12%. That rate was achieved by starting with the 11% rate which the Tribunal determined applicable in Chevron.[57] Mr Fern considered the Chevron project to have a lower risk profile than the Carina Project and he therefore applied the 'more conservative rate of 12.090%'.[58] The result follows:[59]
Total net rent  = $ 653,230pa;
the net rent, capitalised @ 12.0%        = $5,443,583pa;
+10% GST  = $5,987,942pa;
rounded to $5,988,000pa.
[57] Chevron Australia Pty Ltd and Valuer-General [2019] WASAT 7 (Chevron).
[58] Fern Witness Statement, paras 108 - 109; Exhibit 1, page 1488.
[59] Fern Witness Statement, para 110; Exhibit 1, pages 1488 - 1489.
Mr Fern's Responsive Statement is, as its name suggests, responsive to Mr Chapman's witness statement which is summarised below. In addition to responding in turn to each of the pieces of rental evidence relied upon by Mr Chapman, Mr Fern also responds to Mr Chapman's critique of the rental evidence relied upon by Mr Fern in his witness statement. That evidence was relied upon by Mr Fern in arriving at the Revised Valuation and was obtained by FOI by the applicant's solicitors and provided to Mr Chapman.
In his Responsive Statement, Mr Fern also addresses the issue of HABU and his use of the term 'strategic industrial utility'.
As to the HABU, Mr Fern disagrees with Mr Chapman's view that, because the processing of ore could be undertaken on land the subject of a Mining Act tenement, which would be subject to prescribed fees and rents, such processing ought not to be considered as a 'beneficial use' (by which we understand him to mean, part of the HABU).
Mr Fern noted that the applicant had chosen Lot 500 as the location upon which to process ore and had sought permission to do so pursuant to a lease which explicitly provides for that purpose. On that basis, he considered that the HABU of Lot 500 is for the processing of ore, as well as for a rail siding, and that Mr Chapman's decision to value Lot 500 on the basis that its HABU is solely that of a rail siding 'is contrary to fundamental valuation principles'.[60]
[60] Fern Responsive Statement, paras 41- 52; Exhibit 1, pages 1548 - 1550.
As to the term 'strategic industrial utility', Mr Fern sought to explain his use of that term by saying that he had not 'intended to apportion a special value' to any land he describes as such; rather he uses that term to categorise the land based on particular characteristics.[61]
[61] Fern Responsive Statement, para 54; Exhibit 1, page 1550.
As noted above, Mr Fern also provided a further witness statement on 23 September 2022. That followed, by some two months, the joint witness statement, filed on 11 July 2022. In his further witness statement, Mr Fern states that he had been asked to 'clarify [his] position as to what evidence [he had] relied on in forming his view' as to the UV of the Subject Land.[62]
[62] Fern Further Statement, para 2; Exhibit 1, page 1581.
In doing so, he states that due to the lack of 'directly comparable rental evidence, [he] considered alternative rental evidence of comparable utility' which was evidence of 'strategic industrial utility'.[63] That term, he repeats, was not intended to apportion a special value to any relevant land but, rather was to 'categorise the land based on particular characteristics, specifically land … located in proximity to a State-owned resource … or within a major transport infrastructure precinct.'[64]
[63] Fern Further Statement, paras 3 - 4; Exhibit 1, page 1582.
[64] Fern Further Statement, para 4; Exhibit 1, page 1582.
He goes on to say that the need to consider alternative rental evidence led him to provide 'a relatively large "basket" of comparable utility ground rents' with a corresponding range of $0.28/m²/pa to $2.57/m²/pa which, having narrowed it further to exclude seabed leases and Port leases, left the Fern #4 and Fern #5 leases which he said had 'the most points of commonality' with the Subject Land.[65]
[65] Fern Further Statement, paras 6 - 10; Exhibit 1, pages 1582 - 1583.
He states that he considered the Fern #4 rent to be most comparable but that 'other rents referred to … are not excluded from consideration, particularly the Fern #5 rent.'[66] He then notes that, in his view, the two seabed leases are of 'almost identical utility' despite being concerned with different industries (iron ore and gas), which he says 'supports' his approach 'to rely on rental evidence of comparable utility from a different industry (gas) to value the Subject Land'.[67]
[66] Fern Further Statement, paras 6 - 12; Exhibit 1, page 1583.
[67] Fern Further Statement, para 13; Exhibit 1, page 1583.
Finally, he says that while he noted the Subject Land was located proximate to external infrastructure, he 'did not ascribe an associated premium to the rent [he] assessed.'[68]
[68] Fern Further Statement, para 14; Exhibit 1, pages 1583 - 1584.
He also notes that he and Mr Chapman agreed in the joint statement that a capitalisation rate of 11% is appropriate and, applying that rate gives the following calculation:[69]
Total net rent  = $ 653,230pa;
the net rent, capitalised @ 11.0%  = $5,938,455pa;
+10% GST  = $6,532,300pa;
rounded to $6,532,000pa;
[69] Fern Further Statement, para 15; Exhibit 1, page 1584.

Mr Chapman

Mr Chapman prepared and relied upon an expert report[70], a responsive expert witness statement,[71] a further witness statement[72] and contributed to the joint statement.[73]
[70] Expert Report of Gavin Edward Chapman dated 10 June 2022 Exhibit 1, pages 1449 - 1470. (Chapman Report).
[71] Responsive Expert Witness Statement of Gavin Edward Chapman dated 1 July 2022, Exhibit 1, pages 1532 - 1539 (Chapman Responsive Statement).
[72] Witness Statement of Gavin Edward Chapman dated 12 August 2022 (Chapman Witness Statement); Exhibit 1, pages 744 - 745.
[73] Joint Statement, Exhibit 1, pages 735 - 737.
Mr Chapman's expert report states that it constitutes an addendum to his previous advice of 26 August 2021. That document is also before us,[74] and it is therefore appropriate to start there.
[74] Exhibit 1, pages 17 - 27.
Under the heading Definitions and Background, Mr Chapman notes that the nature of the Subject Land means there is a 'dearth of relevant sales evidence'[75] which is a matter also noted by Mr Fern (above).
[75] Exhibit 1, page 20.
In that section he also carries out a review of the assessment prepared by Mr Fern to that point, which includes a comparison with that done by Mr Audino in 2017.[76]
[76] Exhibit 1, pages 20 - 21.
As part of that critique, Mr Chapman uses a graph to plot the $/m² rate against the size of the land in question for each of the properties which Mr Fern used to calculate the Revised Valuation.[77] On that basis (i.e. the graph plotted by him of the $/m² rate and size of the land), Mr Chapman notes that there is a 'vast disparity' between the value arrived at for the Subject Land and the value of the various rents referred to.[78]
[77] At that stage, those details were the only ones available in relation to each property.
[78] Exhibit 1, page 22.
Mr Chapman then, under the heading Methodology and Approach to Unimproved Value, says that:
(a)the capitalisation approach is 'acceptable' but only if the rental information used is 'free of ALL improvements, both merged and physical';[79]
(b)he had been advised that it was likely that Mr Fern had used port facilities,[80] and that, if that was so, they were not comparable to the Subject Land.[81]
[79] Exhibit 1, page 22. Emphasis in original.
[80] Noting that at this stage, no proceedings were on foot and all information provided to the applicant by the respondent was via FOI and redacted to avoid identifying the relevant land.
[81] Exhibit 1, page 23.
Mr Chapman then includes a table, which identifies the 'sales evidence' for nine further properties, described by Mr Chapman as 'pastoral land holdings similar in location or type' to the Subject Land.
Under that table are two graphs, each of which (again) plot a $/m² rate against the size of each of those nine properties as well as the Subject Land, using the Revised Valuation. The first graph is plotted using a logarithmic scale, while the second is not.
On that basis, he concludes that there is a 'vast differential between the evidence and the [Original Valuation]'.[82] He then says that 'based on the analysis of this evidence', the UV of the Subject Land would be 'in a range of $300 to $350 per hectare … or $146,970 to $171,465'. He then applies a yield of 10% to derive a rent of $14,697 to $17,147 per annum.[83]
[82] Exhibit 1, pages 24 - 25.
[83] Exhibit 1, page 25.
Precisely what is meant by Mr Chapman's reference to 'the analysis of this evidence'[84] is somewhat unclear.
[84] Our emphasis.
The only analysis that is either referred to or is otherwise apparent on the face of the document is that contained in the graphs, which are limited to the comparison of land on a rate ($/m²) vs size basis.
Graphs plotting the same elements were also included in Mr Chapman's expert report, again without any other apparent analysis. Under cross‑examination Mr Chapman suggested that he had, in fact, engaged in other analysis.

This is a matter to which we will return below, but for present circumstances it is sufficient to note that, regardless of whether he did or did not perform such other analysis, there is no evidence of it contained in his written reports. Such absence would, in curial proceedings render them inadmissible. In proceedings such as these, it renders them of little weight.
Returning to Mr Chapman's advice of 26 April 2021, he concludes by, amongst other things, repeating several of the matters noted above and notes that a UV for the Subject Land of $6,466,000 for 489.9ha equates to $15,139/ha which is 'around 3 to 4 times' the value of broad acre farming in areas around Mingenew and is 'similar to the values attributable to small farming and horticultural holdings near Manjimup', which appears 'incongruous'.[85]
[85] Exhibit 1, page 26.
Mr Chapman's expert report starts, in a material sense, with a description of each of the properties relied upon by Mr Fern in his Revised Valuation and four leases over land used for 'Rail Infrastructure'.[86] In each case, Mr Chapman describes the size of the land, its rent on a $/ha basis, its use/purpose, its location and its HABU. He also provides 3-5 lines of text on 'comparability' of the land with the Subject Land. Each property referred to by Mr Fern is described by Mr Chapman as of 'low comparability' while two of Mr Chapman's four rail infrastructure properties are described as 'comparable' and two are described as 'not comparable'.
[86] Chapman Report, para 7; Exhibit 1, pages 1452 - 1455. By this time the applicant had obtained unredacted material from the respondent.
Mr Chapman then plots the $/m² rate vs size for each piece of land on a graph and says that the Subject Land is not comparable to Mr Fern's properties 'for reasons of size, location, use and quality' and says that the land used for Rail Infrastructure is 'more comparable' to the Subject Land 'having regard to use/ purpose, location and size'.[87]
[87] Chapman Report, para 10; Exhibit 1, page 1456.
Mr Chapman then carries out the same approach in relation to a further six properties, which he describes as Additional or Secondary Rental Evidence all of which are either port related leases or concern 'service corridor leases'.[88]
[88] Chapman Report, para 12; Exhibit 1, pages 1456 - 1458.
In Mr Chapman's view, all of the 'secondary' properties are of low comparability to the Subject Land except for Chapman #1, which he describes as of 'high comparability'.
Having plotted the Secondary Rental Evidence on a $/ha vs size graph, Mr Chapman 'concludes' that a 'more appropriate rental rate' for Lot 500 would be in the order of $200/ha/pa but that a lower rate would apply to Lot 501 'having regard to purpose and configuration'. He then blends those two figures to arrive at a combined figure of $175/ha/pa for the Subject Land as a whole.[89] We note that that rate is half that of the upper estimate contained in his expert report of 26 April 2021.
[89] Exhibit 1, page 1458.
Mr Chapman's responsive expert witness statement consists of a paragraph-by-paragraph critique of Mr Fern's witness statement. Stated broadly, Mr Chapman:
(a)disagrees with the HABU ascribed by Mr Fern for both Lots 500 and 501. In particular, Mr Chapman insists that the Subject Land as a whole is 'used primarily as a rail facility and not as an ore processing facility, the latter being an incidental use which can be undertaken at the lessee's mine site'.[90] On that basis he disagrees that Fern #4 and Fern #5 are comparable properties.[91]
(b)says that there is no 'strategic' significance to the Subject Land's location, which he describes as merely 'convenient'.[92]
(c)says that Mr Fern has applied a premium to the value of the Subject Land based on its proximity to infrastructure external to the Subject Land itself, which was paid for by the applicant. He says that Mr Fern's approach is inconsistent with the principle in Luton.[93]
(d)comments on Mr Fern's assessment of the various properties relied upon by both Mr Chapman and Mr Fern to date.[94]
(e)'concurs' with Mr Fern that 'the disturbance footprint is the most appropriate measure for the assessment of rent', that no value should be ascribed to land outside that footprint and that the rent for the land covered by the disturbance footprint is 'more properly aligned with the "peppercorn" market'. [95]
[90] Chapman Responsive Statement, paras 4 - 5 and 15; Exhibit 1, pages 1534 and 1537. Emphasis in original.
[91] Chapman Responsive Statement, para 18; Exhibit 1, page 1538.
[92] Chapman Responsive Statement, paras 3, 6 and 16.
[93] Luton v Valuer-General (1971) 23 LGRA 180; [1971] 1 NSWLR 280 (Luton). Chapman Responsive Statement, paras 7 and 20; Exhibit 1, pages 1534 and 1538.
[94] Chapman Responsive Statement, paras 8 - 14; Exhibit 1, pages 1534 - 1537.
[95] Chapman Responsive Statement, paras 21 - 22; Exhibit 1, pages 1538 - 1539. Emphasis in original.
Given the above, it is unsurprising that in their joint statement, Mr Fern and Mr Chapman disagreed about the HABU and the comparable rental evidence. Their respective views in respect of both matters are set out above and will be returned to in more detail below.
However, we note that Mr Chapman expressed in the joint statement the view that 'it is necessary to consider evidence of rentals both lower and higher than the subject land to allow a scaling of the rental applicable to the subject land based on its attributes including but not limited to location, size, use, depth of market and surrounding amenity'.[96] We repeat our view that, if he has, indeed, carried out such a task he has not described such a process in his written reports.
[96] Exhibit 1, page 736.
The matters on which the experts agreed include the following:
(a)That the permitted use for each lot is that described on the respective lease;
(b)That the capitalisation approach is the appropriate method to calculate the UV and that a capitalisation rate of 11% is appropriate;
(c)That the 111ha Disturbance Footprint is the appropriate measure of area for the assessment of rent;
(d)That Mr Fern's valuation did not ascribe a premium associated with the Subject Land being 'strategic' or being proximate to external infrastructure.[97]
[97] Exhibit 1, pages 735 - 736.

Issue No. 1 - HABU

The permitted use of Lot 500 under the Lot 500 LAA Lease is 'Rail Siding, Iron Ore Processing and Storage'.[98] The permitted use of Lot 501 under the Lot 501 LAA Lease is 'Rail Siding/Tie-in-point'.[99]
[98] Exhibit 1, page 329.
[99] Exhibit 1, page 361.
Mr Fern's evidence is that the HABU of the Subject Land corresponds with the permitted use of each of the lots.[100] The respondent's submissions reflect Mr Fern's evidence. [101]
[100] Fern Witness Statement, paras 30 - 31; Exhibit 1, page 1477.
[101] Respondent's Opening Submissions dated 7 October 2022 (Respondent's Submissions); paras 28 and 40.
The applicant's case was either that the HABU for Lot 500 is limited to that of rail siding and it does not include the processing and storage of iron ore, or that, if the HABU does include such a purpose, it effectively has no material effect on the value of the Subject Land. Either way, the applicant's case is based on the proposition that it is possible to process iron ore on land the subject of a lease under the Mining Act. It is therefore said by the applicant that that renders it unnecessary to process and store iron ore on the Subject Land.
There is some tension in the applicant's case in this regard.
In its SIFC, the applicant proceeded on the basis that the 'purposes' of the Subject Land were those described in the relevant LAA Lease, but, for the purposes of the SIFC, it separated them into two - 'rail siding' and 'iron ore processing and storage'.[102]
[102] Applicant's SIFC, para 14; Exhibit 1, page 387.
The applicant's SIFC then went on to contend that the latter purpose – iron ore processing and storage – ought to be valued by reference to 'the rents and rates prescribed for a general purpose lease or mining lease under the Mining Act.'[103]
[103] Applicant's SIFC, para 21; Exhibit 1, page 388.
However, the evidence of Mr Chapman, as described above, was that the HABU of the Subject Land was limited to 'rail siding', and did not include processing and storage at all. He did acknowledge the other permitted use under Lot 500 LAA Lease, but said that because processing and storage can be carried out on other land under Mining Act tenements, the fees and charges under that regime (which are very modest by comparison) ought to inform the rent payable in this case.[104]
[104] See, for example, Exhibit 1, page 736.
The applicant's written submissions, filed 7 October 2022 were consistent with the position it took in its SIFC; that is, that the HABU of the Subject Land is a 'tie in point and rail siding'[105] effectively because the ore processing could occur 'under alternate mining tenure of (fixed) lower value', being a reference to the rents prescribed under the Mining Regulations1981 (WA) (Mining Regulations).[106]
[105] The quote in the submission is that the HABU of the Subject Land is a 'tie in point and not a rail siding', but that misstates both Mr Chapman's evidence (at para [43] of his Expert Report) and the applicant's case more generally.
[106] Applicant's Submission, dated 4 October 2022, filed 7 October 2022 (Applicant's Submissions), paras 39 - 42.
The starting point for the applicant's case in this regard is that it is possible for iron ore to be processed and stored under a General Purpose Lease issued under the Mining Act (GP Lease)
It further says that the 'cost' of a GP Lease is nominal. In that regard we note that:
(a)Item 3 of Schedule 2 of the Mining Regulations provides that the annual rent of a GP lease is $24/ha or part thereof.
(b)Only 280.8547ha of Lot 500 is subject to a GP Lease, being General Purpose Lease 15/21. [107] At $24/ha the rent should be $6744, although the copy of the GP Lease before us gives the rent for the year ended 30/9/2024 as $6,182.[108]
(c)Para 41 of the Applicant's Submissions states that if the rent prescribed under the Mining Regulations were applied to the Subject Land, the 'appropriate annual rents would be under $10,000'.
[107] Exhibit 1, pages 828 - 838.
[108] Exhibit 1, page 828.
In any event, we are satisfied that in the scheme of a mining operation, the rent for a GP Lease, which includes as one of its purposes 'Crushing & Stockpiling of Ore for Transportation',[109] is 'nominal', and certainly so when compared to the rent that would apply to the Lot 500 LAA Lease should Mr Fern's values be accepted.
[109] Exhibit 1, page 828.
As we understand it, then, the applicant's case was either:
(a)that the UV of Lot 500 should not be calculated on the basis that that lot will be used for processing and storage of iron ore because such processing and storage need not take place under the Lot 500 LAA Lease but, rather, could take place under GP 15/21 or, alternatively, on some other land (if that land had the benefit of a GP Lease); or
(b)that if the HABU of Lot 500 includes ore processing and storage, any additional value arising out of that purpose (i.e. in addition to that of rail siding/tie-in-point) should be no more than the nominal rent imposed under the Mining Regulations.
As noted above, the VLA defines UV as the capital amount which an estate in fee simple in the land, not including improvements, might reasonably be expected to realise upon sale.
Implicit in that definition is the Spencer[110] principle, which provides that the value is to be determined by assuming a market, a hypothetical buyer and vendor, and that both parties are prudent, well‑informed and willing, but not anxious to buy and sell.[111]
[110] Spencer v The Commonwealth (1907) 5 CLR 418 (Spencer).
[111] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 (McKay) at [145].
As Beech J (as his Honour then was) noted in McKay, the notional sale postulated by Spencer involves the hypothetical purchaser buying the land 'for the most advantageous purpose for which it was adapted.'[112] His Honour went on, at paragraphs [156] - [159]:
[112] McKay at [155].
156In a passage adopted by the Court of Appeal of Victoria in ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447, [40], Biscoe J explained the concept of highest and best use in Commonwealth Custodial Services Ltd v Valuer-General (NSW) [2006] NSWLEC 400; (2006) 148 LGERA 38 [15]:
There is no statutory definition of 'highest and best use'. It has been described in the High Court as 'the most advantageous purpose for which [the land] was adapted': Spencer v The Commonwealth (1907) 5 CLR 418 at 441 per Isaacs J. It 'is the present value alone of such advantages that falls to be determined': Cedar Rapids Manufacturing and Power Co v Lacoste [1914] AC 569 at 576 per Lord Dunedin. In Park v Allied Mortgage Corporation Ltd (FCA, 5 July 1995, unreported) Hill J said at [70]: 'As Spencer's case itself makes clear the valuation must proceed by reference to the best use of the property. For this purpose the valuer will take into account not only the present use to which the land is applied, but any more beneficial use to which it may reasonably be applied. This is the process which a purchaser negotiating to purchase the property would undertake. Thus, it is not inappropriate in valuing property to take into account a potential development of the property, for among the range of hypothetical purchasers can be assumed to be a person who would undertake such a development as would maximise the usage of the land'. In Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1988) 65 LGRA 410 at 415 (SC/SA) Jacobs J said:
'Common experience shows that land ideally suited for commercial development will fetch a higher price per unit of area than residential land, but it does not follow that the highest and best use of all land is a commercial use, for the highest and best use means exactly what it says - the most advantageous use of the subject land having regard to planning and all other relevant factors affecting its present and future potential. The first task of the valuer is to determine what that use is and then to value the land on that basis. It is not appropriate to determine the highest and best use by reference only to value.'
See also Trandos v Western Australian Planning Commission [2001] WASCA 346, [72].
157In Mount Lawley (2004), the Full Court said as follows:
The skill of the valuer lies in assessing (in this case) the market value of the reserved Mount Lawley land, had it been offered for sale on 7 May 1996. That value would reflect the highest and best use to which the land could be put, consistent with its zoning: Boland v Yates at [271].
As we have noted, in carrying out the valuation the valuer will take into account any potential the land may have for a higher and better use than permitted by the current zoning. In so doing the valuer should exercise an independent judgment about the likely perception of such matters in the relevant market [184] ‑ [185].
158Thus if the most profitable use of the land is one not permitted by its current zoning, the concept of highest and best use requires the potential of the land to be used for that more profitable use, after necessary planning approval, to be taken into account. It does not require or permit an assumption that the necessary planning approval will be forthcoming. The prospects of such approval as determined on the evidence, viewed from the perspective of the hypothetical parties, will bear on the assessment of the value of that potential use.
159In a particular case, the highest and best use of land may be a single use or a package of alternative uses, depending on the evidence: ISPT v Melbourne City Council [57].
In Trandos,[113] to which Beech J referred in the quoted passage above, the Full Court said, at [72]:
To this may be added The Minister v Matford Nominees Pty Ltd [1973] 2 NSWLR 58 per Else-Mitchell J at 59-60:
A long line of decisions of this Court and the High Court of Australia, of which Turner v Minister of Public Instruction (1956) 95 CLR 264 is an outstanding example, establishes that the value of land at any point of time will reflect its potentiality for the best and highest or most profitable use to which it can be put. This potentiality will arise before actual development or redevelopment is undertaken and, in the case of en globo lands or broad acres, must not be regarded as non-existent until approval for development or redevelopment has in fact been granted.
[113] Trandos & Ors v Western Australia Planning Commission [2001] WASCA 346 (Trandos).
There is nothing in any of the above passages that supports the proposition that the HABU of a particular piece of land might be affected by the fact that one of the uses to which it can be put can also be carried out, at lesser cost, on other land.
In our view the applicant's position confuses the question of the HABU of the Subject Land and the question of whether the applicant (subjectively) actually needs or wants to lease the Subject Land in order to carry out the desired activities.
The fact that a prospective tenant might be able to rent Land B as a 10‑storey office block for $X doesn't mean that the HABU for Land A cannot also be for a 10-storey office block, even if the rent is $X+1.
In any event, we have considerable doubt that the applicant could, if need be, carry out the processing of iron ore obtained from the Carina mine on some other piece of land.
That is because the applicant has sought and obtained approval under the EP Act for a proposal which expressly provides for the crushing and storage of iron ore 'on the railway siding'; that is, on Lot 500.
It may be possible for the applicant to seek amendment of the Ministerial Statement to allow processing on some other (nearby) land, although given the evident environmental sensitivity of the area that ought not to be assumed,[114] but no evidence was put before us in that regard and such a possibility is, therefore, purely speculative.
[114] See, for example, the commentary of the EPA in EPA Report 1368 at page 31; Exhibit 1, page 78 that '[i]n the absence of a coordinated and strategic approach to infrastructure provision there is an increased likelihood of significant environmental values being unnecessarily impacted'.
Accordingly, we are satisfied, and we find, that the only place that the crushing and storage of iron ore from the Carina mine can occur is on Lot 500.
There is also, plainly, a convenience associated with crushing ore and storing it on the same land and particularly where that land is proximate to a rail-line. It is all very well to say that the processing of ore could occur elsewhere but unless that 'elsewhere' contains access to a rail line, the suggestion appears to be without merit.
In that regard, we accept the unchallenged evidence of Ms Pullin that the applicant obtained tenure under the LAA 'because [the applicant] could not build a railway siding on tenure obtained under the Mining Act 1978 (WA)'.[115] That is, a rail line is not a permitted purpose for a GP Lease, which means that the processing of ore under a GP Lease could not occur on land that contains a railway siding. Plainly, the joint permitted uses of Lot 500 provide a significant convenience.
[115] Pullin Witness Statement, para 7; Exhibit 1, page 739.
We also find significant that MinRes, the applicant's parent company, transports ore taken from other mines in the general vicinity for crushing and storage on Lot 500 and then transported by rail for export.[116] That evidences that the convenience described above as accruing to the Carina Project extends to other mining operations in the region and tends to suggest against the easy availability of other land for the purpose.
[116] Pullin Witness Statement, para 6 and 11 - 18; Exhibit 1, pages 739 - 741.

Accordingly, we find that the HABU for Lot 500 is 'rail siding, iron ore processing and storage'. That is what is permitted under the Lot 500 LAA Lease. The fact that processing and storage may, with suitable approvals, be able to be carried out on other land for lesser cost does not affect that conclusion.
For the same reasons,[117] we also find that the valuation of Lot 500 (with an HABU that includes iron ore processing and storage) should proceed without regard to the rent payable for a GP Lease upon which iron ore processing and storage might otherwise be able to be undertaken. There is, in our view, no reason, whether of principle or otherwise, on which such an approach might be properly sustained.
[117] That is, the lack of any evidence as to access to alternative land on which such processing and storage might occur, the apparent difficulty of obtaining alternative land access given the environmental values of the area and the obvious convenience and synergies associated with Lot 500 which allows ore to be processed and stored adjacent to a rail line.
The applicant's focus in this regard was Lot 500. To avoid doubt, we are also of the view that the HABU of Lot 501 reflects its permitted use under the Lot 501 LAA Lease; i.e. 'rail siding/tie-in-point'.
However, while that HABU is, on its face, a lower value proposition than the HABU of Lot 500, the reality is that the two lots forming the Subject Land will be (or are at least capable of being) used together and thereby complement each other.
That has consequences for value, as is described in more detail in Issue #7 below.

Issue No. 2 - is the income capitalisation methodology appropriate?

Both of the expert valuers called on behalf of the parties[118] and each of the parties themselves[119] were agreed that the income capitalisation methodology is appropriate,[120] principally due to the lack of comparable market sales.[121]
[118] Exhibit 1, page 735.
[119] Respondent's Submissions, para 14; Applicant's Outline of Closing Submissions dated 4 October 2022, para 5.
[120] Although, as is apparent from the terms of Issue No. 5, there was disagreement as to whether each the 'other' valuer had, in fact, applied the market capitalisation methodology.
[121] Fern Witness Statement, paras 33 - 35; Exhibit 1, page 1478. Chapman Report, para 4; Exhibit 1, page 1450.
Income capitalisation is a well-accepted methodology used to value rental land whereby value is calculated by 'capitalising' comparable rents.
Its application therefore requires both comparable rents, as well as a capitalisation figure.
Such an approach has been accepted as appropriate by Australian courts[122] and we are satisfied that such an approach is appropriate in this case subject to being satisfied there are, indeed, sufficiently comparable rents.
[122] Hill v Commissioner of Highways (1966) 13 LGRA 369 at 375; Sheath v Valuer-General (1963) 10 LGRA 20; (1963) 64 SR (NSW) 415 at 26.
It was agreed by the expert valuers that there is, in fact, no directly comparable rents.[123]
[123] Joint Statement, paras 4 - 5; Exhibit 1, page 735.
There is no need for rents to be directly comparable. The South Australian Full Court in Capaldo,[124] which concerned the application of the capitalisation of rent methodology, put it plainly:
Comparable transactions have been described as falling into three categories – where a comparator is identical to or equivalent with the subject property; where there are differences between the comparator and the subject property which are susceptible to adjustment; and, where the differences are so great and so numerous that adjustment is unsafe.[125]
[124] Capaldo v Capaldo [2011] SASCFC 115 (Capaldo).
[125] Capaldo at [22].
The case of both parties was to the effect that the rents relied upon by their 'own' expert were sufficiently comparable but that the rents relied upon by the expert called by the other party fell into the third category.
As we will discuss in more detail below, we have some sympathy for the latter position taken by each party.
There are some very obvious difficulties associated with comparing the Subject Land to other land for this purpose. Some of the more obvious are:
(a)The Subject Land is very large and very remote;
(b)The Subject Land is leased from the State, rather than a private owner;
(c)The use of Crown Leases for mining related activities is highly unusual, if not unique;
(d)The infrastructure on the Subject Land, and otherwise in the region, is very large and expensive and has been constructed by the tenant, rather than the landlord;
(e)The Subject Land is immediately proximate to the trans‑Australian railway.
However, notwithstanding the difficulties of comparability, we remain obliged to 'come to a conclusion on the question of value'.[126]
[126] McKay at [173]. That finding was not challenged on appeal: McKay v Commissioner of Main Roads [2013] WASCA 135 at [137].
For present purposes, then, it suffices to say that we are satisfied that the market capitalisation approach is appropriate, subject to the need for satisfaction as to the sufficient comparability of rents.

Issue No. 3 - what is the appropriate capitalisation rate?

The capitalisation rate represents a rate of return on investment.[127]
[127] A Hyam, The Law Affecting Valuation of Land in Australia, (6^th ed, Federation Press), 209.
The rate of capitalisation applied to market rent is dependent on the market and the nature of the property being valued. It alters with different types of property, in different localities and economic circumstances.[128]
[128] Ibid.
As such, it requires the application of an expert valuer's skill to identify the appropriate profit/risk profile that ought to be applied in all of the circumstances.
Even small differences in the capitalisation rate can make a significant difference; in the present case, a difference of 1% in the capitalisation rate creates a difference of approximately half a million dollars to the UV if a rental value comparable to that of Mr Fern is adopted.
There is therefore a need for a proper theoretical basis and a degree of intellectual rigour in attempting to identify a suitable capitalisation rate. But the facts and circumstances of this case, including those identified above at paragraph 155, make that very difficult.
Despite those difficulties, the issue must be addressed.
As noted above, in the present case Mr Chapman initially used a capitalisation rate of 10%, while Mr Fern used a more conservative rate of 12%.
Mr Fern explained that the lack of comparable rents meant that there is also a lack of data from which to derive an appropriate capitalisation rate.[129] He noted that this issue was addressed in Chevron[130] where the Tribunal found that the appropriate capitalisation rate was 11%.
[129] Fern Witness Statement, para 107; Exhibit 1, page 1488.
[130] Chevron at [106] - [110].
That case concerned land located ~30kms south of Onslow and used for the construction and operation of the Wheatstone Gas Treatment Plant as part of Chevron's Wheatstone project. In that case, two sales (one in Collie and one in Kununurra) were analysed to obtain capitalisation rates, which were largely agreed in the case of one (Kununurra) but where the parties disagreed in the case of the other (Collie). The Tribunal preferred one over the other and determined the rate to be 11%.
In the present case Mr Fern used the Chevron rate of 11% as a 'benchmark', and noted that the Wheatstone project was a JV of five international companies and, therefore, in his view, had a lower risk profile and he therefore applied a more conservative rate of 12% to the present case.[131]
[131] Fern Witness Statement, para 109; Exhibit 1, page 1488.
Mr Chapman, however, used a capitalisation rate of 10%. The basis for that rate is unclear. It is not expressly explained. As best we can discern, it appears to have been reverse engineered from Mr Fern's Original Valuation.[132]
[132] Exhibit 1, page 20. Chapman Report, para 24; Exhibit 1, page 1461.
At the conferral, the valuers agreed that the 'appropriate' capitalisation rate is 11%, which agreement was recorded in their joint statement. At the hearing it was confirmed that, in doing so, they had agreed to 'split the difference'.[133]
[133] ts 45 - 46, 18 October 2022.
However, in cross-examination by Mr McKenna, who appeared for the applicant, Mr Fern agreed that 12% was preferable, including on the basis that it was favourable to the 'ratepayer' (i.e. the applicant).[134]
[134] ts 51, 18 October 2022.
Because that evidence is inconsistent with what was agreed in the joint statement, and because leave was neither sought nor granted, it is inadmissible pursuant to rule 39B(6) of the State Administrative Tribunal Rules 2004 (WA). That rule appears designed to encourage frank and open conferral of experts by preventing experts from reneging on compromises agreed in conferral.
However, in circumstances where the agreed position was arrived at by 'splitting the difference', Mr Fern's answer comes as no surprise and little is to be gained by insisting that the experts stick to their agreed position.
We have real concerns with Mr Fern's approach, which was to adjust the capitalisation rate accepted in Chevron to account for relative risk.
In particular, the underlying lease in Chevron was not one that either Mr Fern or Mr Chapman relied upon as being comparable to the Subject Land and the relevant date of valuation in that case was 1 August 2015,[135] four years prior to the DOV in this case; we have nothing before us either way on the relative rates of return in those years.
[135] Chevron at [3].
But at least Mr Fern's rate has a rational basis to it and is the result of an intellectual process. By contrast, for reasons set out in paragraph 168 above, we are not satisfied that Mr Chapman's initial rate is the result of applying his own mind to the issue at all.
Accordingly, but with some considerable reservation, we are satisfied, and we find, that the appropriate capitalisation rate is 12%.

Issue No. 4 - what, if any, of the properties identified by the two valuers are sufficiently 'comparable'?

Both valuers have referred to several 'rents' within their reports which comprise a broad range of properties that vary in size, location, permitted uses and other attributes.
As we have said, the experts agree that there are, in fact, no directly comparable rents.[136] And as we have also already said, each party was highly critical of the opposing expert's choice of rents.
[136] Fern Witness Statement, para 107; Exhibit 1, page 1488.
Before we address each property in turn, it is useful to say something about comparability in addition to the passage from Capaldo quoted above at paragraph 152. In Lenz[137] Edelman J summarised the principles as follows:
112.… This valuation methodology [being by reference to comparative sales] is the 'traditional, and usually unexceptionable' method: see Maurici v Chief Commissioner of State Revenue [2003] HCA 8; (2003) 212 CLR 111, 120 [16] (the Court).
113.…
114.In applying the comparable sales technique, sales will not always fall neatly into a category of comparable or non‑comparable. The process involves selecting potentially useful transactions and carefully analysing them to determine if they are comparable: Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122; (2003) 27 WAR 403, 408 [21] (Pullin J).
115.In performing the exercise of assessing comparative sales, none of the valuers adopted an approach which explained for every sale the particular rate that each comparative sale would have suggested as a price for the Subject Land. I do not consider this to be a flaw in any of the valuers' analyses. Provided that sufficient reasoning and information exists to show how a meaningful comparison can be drawn, the very nature of a comparative sales approach usually requires a number of comparative sales sufficient in volume to justify a deduction or inference as to the value of the Subject Land: Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [51] (McLure J).
116.…
117.The comparable sales considered by the valuers differed significantly. Some differed significantly in size from the Subject Land. Some differed significantly from the location of the Subject Land. And some differed significantly from the relevant date …
118.The line between sales which are comparable and those which are incomparable is a matter of degree. If too much adjustment is necessary to make a sale comparable then it might be unsafe to use. Although a court will adjudicate on this issue, the question of where this line is to be drawn is a matter for an expert valuer to determine: Duffy v The Minister for Planning [2003] WASCA 294 [25] (McLure J).[138]
[137] Lenz Nominees Pty Ltd v The Commissioner of Main Roads [2012] WASC 6; (2012) LGERA 58 (Lenz).
[138] Lenz at [112] - [118].
The final paragraph quoted above seeks to summarise what was said by McLure J (as her Honour then was, and with whom the rest of the Court agreed) in Duffy.[139] More completely her Honour held:
A helpful description of what the comparable sales method involves was given by Wells J in Brewarrana Pty Ltd v Commissioner of Highways (1973) 32 LGRA 170. He said (at 179-180):
"It is general valuation practice for sales characterized as comparable sales to be used as bases for the valuation of lands said to be similar. But allowances must always be made before such sales can be so used. No two parcels of land are identical in all respects: the sale price of any given piece of land is not necessarily the price at which it ought to have been sold, or the same thing as its true value. Before using any allegedly comparable sale, therefore, the valuer must consider whether, having regard to the circumstances ... appertaining to the parcel of land in question, and to the transaction of sale, there are sufficient similarities to the circumstances appertaining to the subject land and to the notional sale presupposed by the test formulated in Spencer v The Commonwealth of Australia ... to warrant a court's reasoning from the sale price paid under the allegedly comparable sale, with or without other evidence, to a value for the subject land. Adjustments must, of course, be made every time reasoning of that kind is undertaken. For example, in relation to the land itself and the circumstances appertaining to it, it may be necessary to consider such matters as topography, location, size, shape ... land use (actual and potential), scope for, and difficulties of, development, ...; and in relation to the transaction of sale, the valuer must weigh such things as the character, business and relationships of the parties, their motives, the terms and conditions in their contract of sale, and any other special considerations that induced or may have induced them to conclude the contract at the selling price agreed, as well as the dates when the contract of sale and the transfer were concluded or effected."
There is no hard and fast rule by which a valuer can draw the line that clearly separates sales that are comparable from those that are not. It is a matter of degree. Some adjustment is always necessary but too much adjustment may render it unsafe to use a sale. Where the line is to be drawn is a matter for the expert valuer to determine. Further, just because a sale is excluded from use in the comparable sales reasoning process does not necessarily mean that it is irrelevant: Brewarrana(supra)per Wells J at 180.[140]
[139] Duffy v The Minister for Planning [2003] WASCA 294 (Duffy).
[140] Duffy at [24] - [25].
Also relevant to this section is what was said by McLure J immediately following those paragraphs, under the heading of 'The Evidence of an Expert Valuer'.
26.…
27.Further, the process of inference that leads to the opinions of the valuer must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about their reliability. If not, the opinion can carry no weight: Pollock v Wellington (supra) at 4 per Anderson J; Makita (Australia) Pty Ltd v Sprowles (supra) at 741.
28.The expert must fully expose the reasoning relied on in reaching his or her opinion and the opinion must be rationally based: Maurici v Chief Commissioner of State Revenue (supra).
29.However, those principles have to be applied in the context of the valuers "art". The established principles were stated in Spencer v Commonwealth (supra) where Isaacs J quoted with approval the following passage in Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co[1901] AC 373 at 391:
It is quite true that in all valuations, judicial or other, there must be room for inferences and inclinations of opinion which, being more or less conjectural, are difficult to reduce to exact reasoning or to explain to others. Everyone who has gone through the process is aware of this lack of demonstrative proof in his own mind, and knows that every expert witness called before him has had his own set of conjectures, of more or less weight according to his experience and personal sagacity. In such an inquiry as the present, relating to subjects abounding with uncertainties and on which there is little experience, there is more than ordinary room for such guesswork; and it would be very unfair to require an exact exposition of reasons for the conclusions arrived at.
30.An illustration of the practical application of the principles is seen in Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409. In that case the subject land to be valued was a container terminal site. It was common ground that that was the best and highest use for the land. Notwithstanding that there was no sales evidence of container terminals, one expert used the comparable sales method and the basic sale he relied on was of industrial land with no water frontage. The valuer added between $100,000 - $120,000 per hectare as an adjustment for the subject land's water frontage. It was common cause that the expert did not have any sales evidence on which to rely for his quantification of the water frontage adjustment and he said it was fixed as a matter of judgment. The appellant in that case submitted that while judgment based on experience is a permissible method of making adjustments in the course of valuing, the selection of a figure based on nothing could not alter its character as in essence a guess or an arbitrary figure. The Court held that the need to make adjustments to values to arrive at the true valuation of subject land does not preclude the valuer or the Court who has the task of valuing the land from making adjustments which may be nothing more than the best guess that can be made in the circumstances. The Court also rejected an argument that a judgment of that nature was not valid unless there was evidence to establish the upper and lower limits within which the judgment must operate.
31.An opinion that is not based on sales or other empirical evidence is often referred to as a judgment, usually said to be based on skill and experience. Sometimes it may be difficult to draw the line between judgment and mere speculation. A rule of thumb is that a judgment formed without some disclosed rational basis will be speculation to which little, if any, weight should be given. However, generalised statements of principle are best avoided because whether and if so what weight should be accorded to a valuer's opinion will depend on the facts and circumstances of each case.
32.As to what is required disclosure, the appellant relies on a statement by Pullin J in Arcus (supra) (at [78]) that:
"It is not satisfactory, in my opinion, for a valuer who values land using the comparable sales method, to list a number of comparable sales, each one suggesting a different value for the subject land and each of which requires some adjustment, and then simply to state an opinion about the value of the subject land. Such an opinion will only have any value if the valuer explains which is the most important of the comparable sales, why that is so, and what adjustments have been made to reach a conclusion about the value of the subject land."
33.The first sentence is uncontentious. The second sentence is not. Insofar as it is contended that the second sentence states an absolute requirement with automatic consequences as to weight, that cannot be so. The formation of an opinion on value has been likened, correctly in my view, to the exercise of judicial discretion. Rules affecting weight must be sufficiently generalised to allow for different methodologies and circumstances.

As part of that concern, we repeat our findings above that Mr Fern has not explained why the rate for the Fern #4 site as a whole (of which only 50% is utilised), was applied to only the Disturbance Area of the Subject Land.
We understand and appreciate the division of the Subject Land into different zones as a legitimate approach, particularly where the site is so very large; indeed Mr Chapman also agreed with that approach.
But the application of the rate for the whole of the Fern #4 site to only part of the Subject Land appears to us to lack a logical foundation. At the very least, any logical foundation that might exist has not been explained and justified by Mr Fern.
As a whole, then, we are satisfied that Mr Fern has stated his reasoning process subject to those two, not insignificant, criticisms noted above.
In contrast, we are of the view that Mr Chapman failed to explain his reasoning at all, at least by reference to his viva voce evidence at the hearing.
That is, in our view, his written evidence clearly explains the basis on which he reached his opinion, being a simplistic size vs rate ($/m²) comparison. However, in cross-examination he denied that his analysis was limited to that approach. Instead, he said he had applied a 'bracketing approach'. But his written evidence is entirely silent in this regard.
What follows explains the basis for that conclusion.
In his initial advice to the applicant's solicitors, Mr Chapman had before him only a redacted version of Mr Fern's valuation, such that he was unable to comment on the 'type, location, quality, use and so forth'.[239] He did, however, have access to the size of the land and the total rent for each lease relied on by Mr Fern and he plotted the rate ($/m²) against the size each piece of land.[240]
[239] Exhibit 1, page 21.
[240] Exhibit 1, page 22.
Whether due to that background or otherwise, the analysis of size and rate ($/m² or ha) appears to be the only analysis which Mr Chapman has reduced to writing.
That is not to say that he does not make comment about each of the various leases/rents referred to by way of comparison to the Subject Land.
As noted above, in his witness statement he tabulates each of Mr Fern's 10 rents and his own four railway rents and his 'Additional' six rents. In each case he gives the area, the rent ($/ha), the use/ purpose, location, a comparability (Low/ High) together with 2‑5 lines of text by way of explanation as to why he has reached that view, and some further 'comments'.[241]
[241] Chapman Statement, paras 7 and 12; Exhibit 1, pages 1452 - 1455 and 1457 - 1458.
Having done so, he then plots the various rents on a graph ($/ha vs size) and notes, by reference to the graph, that Mr Fern's assessed rent appears to correlate to Mr Fern's basket of rents.
But, he says, the rents relied upon by Mr Fern are 'not comparable to the subject land for reasons of size, location, use and quality' while his own railway rents are 'more comparable to the subject land having regard to use/purpose, location and size'. On that basis, he concludes that the market rent should 'more properly be weighted toward' the railway rents.[242]
[242] Chapman Statement, para 10; Exhibit 1, page 1456. See, also, page 1459, which is the Conclusion which is in very similar terms.
However, having said so, he then goes on to describe, against the same parameters as the other rents, his six 'Secondary Rental Evidence' rents.
These he also plots on a graph showing the rent ($/ha) vs size and applies a line of best fit. On the basis of that graph, he says that Mr Fern's assessed rent 'appears to be poorly coordinated' against his (Mr Chapman's) rents and, using the line of best fit, concludes that 'a more appropriate rental rate' for Lot 500 is 'in the order of $200 per hectare' and that Lot 501 should have a lower rate (which he does not disclose), 'having regard to purpose and configuration'. He then blends the two rates to give a total rate of $175/ha.[243]
[243] Chapman Report, para 14; Exhibit 1, page 1458.
He does the same thing a couple of pages later following a graphical representation of all of the rental data. He states that the 'analysis indicates that a rental rate in the order of $230 per hectare is applicable to Lot 500 and that a rental rate in the order of $185 per hectare is applicable to the combined holding…'[244]
[244] Chapman Report, para 20; Exhibit 1, page 1460.
That is, while Mr Chapman discusses various characteristics of the Subject Land as well as each of the other rents relied upon by both he and Mr Fern, he does not describe in any way how he uses those characteristics to arrive at the relevant rate for the Subject Land. Rather, on the face of his written evidence the rate chosen by him appears to have been arrived at by identifying Lot 500's place on a 'line-of-best-fit' by reference to its size and then reading off the accompanying rate ($/ha).
Despite the above being apparent on the face of the document, Mr Chapman stated more than once in cross-examination that his rate/size graphs did not provide the sole basis for his assessment of a rental rate for the Subject Land.
As noted above, in cross-examination, Mr Chapman was taken to his error in assessing the Chapman #1 Gas Pipeline rent at $17.50/ha when, in fact, the rent is $175/ha. Ms Ide put it to Mr Chapman that he would find it difficult to identify, in the hearing box, where the correct rent (i.e. $175/ha) would be located on the plotted graph because of the logarithmic scale used. He agreed with that proposition but then said '[b]ut that assumes that that's my primary analysis of the evidence. As I say, it's more of a guide to the evidence.'[245]
[245] ts 101, 17 October 2022.
When taken to the two graphs, and the paragraphs that follow them,[246] he acknowledged that the amounts he identified –$200/ha (pararaph 14) and $230/ha (paragraph 20) - were taken from the graphs but he claimed that his analysis was more than simply applying the line of best fit.[247]
[246] Being paras 14 and 20 of his Witness Statement.
[247] ts, 108 - 110, 17 October 2022.
We do not accept that evidence. While Mr Chapman has, plainly, turned his mind to questions of comparability for each of the various rents, there is nothing in his written material to suggest how he has applied those matters to the question of a rate of $/ha.
By contrast, paragraphs 14 and 20 of his expert report clearly state, and the graphical evidence clearly shows, that his rates of $200/ha and $230/ha for Lot 500 were identified by the application of the size of Lot 500 to the line of best fit (being a line automatically created by Microsoft Excel).[248]
[248] ts 107 - 108, 17 October 2022.
In our view, whether or not Mr Chapman, in his own mind, did or did not apply other forms of analysis to achieve the rates he has nominated, he has not set out that analysis in the manner required by the principles set out in the authorities, quoted above.
Rather, the only explanation for his conclusions is that related to the graphs upon which he has plotted rates ($/ha) and size. In our view that very simplistic approach is fundamentally inadequate for the task.
For the above reasons, we don't accept that Mr Chapman has explained, at all, any reasoning process employed (if, indeed, he did employ it) beyond plotting a line-of-best-fit for size vs rate ($/ha).
Further, given the various other factors (which Mr Chapman identifies) that may impact on value, we find that his size vs ($/ha) analysis is fundamentally inadequate for the task.
In addition, while we are comfortable, in a broad sense, with the manner and extent of Mr Fern's explanation of his reasoning, we find that he has failed to explain two critical aspects: the lack of adjustment of the Fern #4's rate to the Subject Land, in circumstances where Fern #4 is described as 'the most comparable' rather than being particularly, comparable; and secondly, the application of the Fern #4 rate (where only about 50% of the site is used) to the Disturbance Footprint of the Subject Land.
That then requires us to reflect on our own role. Such reflection requires consideration of two apparently competing principles: that we must not act as a 'third valuer' [249] but, at the same time, we are obliged to 'come to a conclusion on value'.[250]
[249] Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 (Brewarrana).
[250] McKay at [173].
We raised those two principles with the parties after the completion of the hearing in circumstances where, we said, we were concerned that:
(a)the parties were agreed that there were no directly comparable rents;
(b)each party was highly critical of the rents referred to and relied upon by the other; and
(c)we were, on a preliminary basis, concerned that we may agree with both parties in that regard.
Both parties advised that they did not wish to put on any further evidence. In addition, they both put on submissions that, in this regard were largely to the same effect, which is set out below.
The starting point is the proposition that the Tribunal must not act as a third valuer. In Brewarrana[251] Wells J said as follows:
But the judge cannot arrogate to himself the role of an expert who is, in any respect, primus inter pares. In the Land and Valuation Court I seek to be informed and, as best I can, to evaluate; I do not sit to use such acquired knowledge of valuation principles as I have acquired in order to confirm or to condemn. I must act on the evidence, and if any of it is, in any wise, defective, incomplete or irreconcilable then I must make such use as I can of whatever other evidentiary material is available to correct, complete or reconcile.
[251] Brewarrana at 544 - 545. Also Bronzel v State Planning Authority (1979) 21 SASR 541; (1973) 32 LGRA 170 at 523; Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 at [76].
In McKay, Beech said, having referred to the above principle:
On the other hand, it is clear that the court is not obliged simply to adopt one of the valuers' opinions. The court can make such adjustments to value as are required by the evidence: Mount Lawley Pty Ltd v Western Australian Planning Commission [2007] WASCA 226; (2007) 34 WAR 499 (Mount Lawley (2007)) [391]; Arcus Shopfitters (2002) [76]; Corporation of the City of Adelaide v City of Port Adelaide Enfield [2000] SASC 271; (2000) 110 LGERA 153 [88] - [89]. If the court finds any valuation evidence to be defective, incomplete or irreconcilable in some respect then it should use other evidentiary material to correct, complete or reconcile that evidence: Brewarrana (545).
This invites attention to what precisely is impermissible.
There was no issue between the parties in this respect. The parties agreed that the court cannot adopt a valuation methodology that was not supported in any of the valuers' evidence. Further, the parties agreed that the court cannot simply take an average of competing valuations in order to resolve their differences. I am content to accept those propositions. However, I note that there is room for doubt about the first proposition: see Downie v Sorell Council [2005] TASSC 74; (2005) 141 LGERA 304 [33]. The parties did not identify anything else that is impermissible.
At the risk of stating the obvious, I would add that, in valuation as in all spheres of the judicial function, the court must act only on the basis of evidence.[252]
[252] McKay at [168] - [171].
On appeal, neither party challenged that analysis. Murphy JA, with whom Martin CJ and Buss A agreed, said as follows:
The judge may reach the point where it is necessary to assign a particular figure to a certain factor or complexion of factors for which there is not only no satisfactory direct evidence from a valuer, but where the other evidence provides no clear or firm guide to the selection required to be made. In that event, the court, subject to the provision of procedural fairness, may be left with no alternative but to assign a figure to the factor in question which, in a broad sense, the court considers reasonable to impute to a hypothetical vendor and purchaser in all the circumstances and having regard to the evidence as a whole. For example, in Brewarrana v Commissioner of Highways (No 2), the comparable sales method suggested a value of $200,000 and the hypothetical subdivision method suggested a value of $270,000. Wells J quantified certain influences on value to adjust the figure of $200,000, albeit that in doing so his Honour entered into what he described as a 'largely speculative realm' and noted that the ingredients of one of the factors were 'all, to a greater or less extent, imponderables' (578 - 579).[253]
[253] McKay v Commissioner of Main Roads [2013] WASCA 135 at [144] (McKay Appeal).
Based on these authorities, the applicant submitted that we 'can (and in light of the requirement that it make a decision, occasionally, must) however, when necessary and subject to procedural fairness, make adjustments to value as are required by the evidence'. Indeed, the applicant submitted the Tribunal may 'assign a figure to the factor in question' which it considers reasonable in all the circumstances and having regard to the evidence as a whole.[254]
[254] Applicant's Outline of Submissions dated 5 May 2023 (Applicant's Outline), para 21.
In doing so, the applicant submitted that, if we 'cannot' accept the evidence of the valuers 'it may still use the valuers' evidence and make appropriate modifications and adjustments to the value as required by the evidence'.[255]
[255] Applicant's Submissions, para 26.
The respondent's submissions in this regard effectively adopted the foregoing and focussed on:
(1)the extent to which the Tribunal, as an expert body, may not be bound by the 'no third valuer' principle.[256] We do not need to address this issue; and
(2)the obligations of procedural fairness.
[256] See ISPT Pty Ltd v Melbourne City Council (2008) 20 VR 447; [2008] VSCA 180 (ISPT Pty Ltd) at [18] - [21].
As to the latter point, the respondent agreed with the applicant that, given the extensive manner in which each party had addressed the evidence, it is 'relatively unlikely that an adverse conclusion drawn by [us] on material supplied by or known by the parties would not be obvious or flow from a natural evaluation of that material'.[257]
[257] Respondent's Supplementary Submissions filed 2 July 2023, para 18 referring to McKay Appeal at [157].
However, the respondent averted to the possibility that we might prefer the methodology of one valuer and the sales evidence of the other. In such a case, it said that 'considerable care would need to be taken in applying adjustments' and it pointed to the comments of Batt J in 101 Collins St. where he said:
I am entitled, by reference to evidence of one valuer, to adjust on a number of aspects the valuation of another valuer, provided that I make allowance for the fact that one variable in a component consistent of several variables may in fact have been balanced in the latter valuer's valuation by one or more of the others variables.[258]
[258] 101 Collins Street Pty Ltd v City of Melbourne (Unreported, Supreme Court of Victoria, Batt J, 2 April, 1996) at 83, quoted in ISPT Pty Ltd at [20].
Finally, in this regard we note what was said by McLure JA in Duffy at paragraph [30] which is set out above in paragraph 181. In that paragraph, her Honour endorsed the decision in Seatainer Terminals[259] where the Court held, in her Honour's words:
that the need to make adjustments to values to arrive at the true valuation of subject land does not preclude the valuer or the Court who has the task of valuing the land from making adjustments which may be nothing more than the best guess that can be made in the circumstances.[260]

Issue No. 6 - applying the preferred methodology to the comparable properties so identified, what is the UV of the Subject Land?

[259] Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409.

[260] Duffy at [30]. Emphasis added.

We have previously found that the most comparable rents are those concerned with the processing and/or storage and/or transport of iron ore: Chapman #5 and Fern #9 and Fern #10.
That is due to the comparability of use to the Subject Land. In our view, the most difficult characteristic to adjust for appears to be use/purpose.
We don't accept Mr Fern's suggestion that the comparability of the two seabed rents allows a conclusion that there is an easy comparison between terrestrial gas and iron ore leases. Rather, in our view the similarity between the two seabed leases simply reflects the high level of comparability between the use of the seabed in each case.
But in our view the difference between the way in which land is used to produce gas in a GTP, and the gas industry more generally, doesn't allow an easy comparison between the Subject Land and the GTP rents. Mr Fern acknowledged as much when he conceded in cross‑examination that he didn't 'know how' to adjust for the differences.[261]
[261] See, paragraph 274 above.
Each of the three iron ore rents have quite similar rates: $21,000/ha (Chapman #5), $20,600/ha (combined rate for Fern #9) and $25,000/ha (Fern #10).
In our view, and we find, it is appropriate to start at the bottom end of that range - $20,000/ha and, consistently with the evidence of both valuers, that rate must be discounted very considerably to account for the Subject Land's vastly inferior location which includes that the three rents are, and the Subject Land is not, 'Strategic'. Accordingly, in our view, a discount of 75% - 85% is appropriate, giving a range of $3,000‑$5,000/ha.
In our view a further discount ought to apply due to the depth of market/extent of competition associated with the three comparison rents, together with the fact that those three sites are, in effect, the final stage in resource extraction (i.e. they are adjacent to or part of the final port of export) whereas the Subject Land represents an intermediate stage of such extraction.
We are conscious of two factors which make such a further discount somewhat problematic.
First, there is a degree of overlap between the location factor and the depth of market factor, in that one might reasonably expect that there will be greater competition for better located land. There is, however, some evidence for the proposition that the two factors are, in fact different, in that Mr Chapman identified depth of market as a factor upon which the Subject Land differed for Fern #9 and Fern #10 but not for Chapman #5.
Secondly, the 'final' vs 'intermediate' stage factor was not a matter raised explicitly by either party. But both the experts noted, as is self‑evident, that several sites were concerned with the transport of resources. In our view, our extrapolation in this regard 'flows from a natural evaluation of the material' such that notice need not be given to the parties.
In our view, and we find, the additional discount relevant to these two additional factors is in the order of 20-30% with that range reflecting, primarily, the degree of overlap with the adjustment for the locational factor.
That results in a range of $2,100 ($3000 x 0.7) to $4,000 ($5,000 x 0.8).
The final factor that needs to be addressed is size.
Our previous criticism of Mr Fern's approach was that a rate calculated using the whole of the Fern #4 site was applied to only part of the Subject Land.
That issue does not arise in the present case because the iron ore sites used for comparison are, on the evidence, used in their entirety.
On that basis, it appears open to us to apply a rate of discount to account for size. Alternatively, we can apply the rate calculated previously to the Disturbance Area.
We have chosen to take the second alternative, simply because there was agreement between the experts in that regard.
But before we do so, by way of cross-check we note that the four GTP rents were $4,500/ha, $5,817/ha, $7,821/ha and $8,500/ha.

In our view, and we find, the Subject Land should be valued at considerably less than the GTP leases. Accordingly, we are of the view that a value at the lower end of the range of $2,100/ha to $4000/ha should be adopted for the Subject Land.
In our view, and doing the best we can in difficult circumstances, we find that the appropriate rate is $2,250/ha which, applied to the Disturbance Area, creates a rent of $249,750.
In doing so, we note that our final rental value applies the 'rate' to Lot 501 equally as to Lot 500.
That is because, as we averted to in our reasons in relation to HABU (Issue #1), the two lots can be, and are plainly intended to be, used in conjunction, and in that way complement each other.
Mr Chapman's evidence, in his expert report, was that Lot 501 only attracted a nominal rent of $1000 for the entire lot which was in contrast to a rate of $200/ha to $230/ha. But that was in circumstances where he was of the view that the HABU for Lot 500 didn't include iron-ore processing/storage and was, therefore, limited to its use as a rail-siding and tie-in-point, which was, therefore, the same as Lot 501.[262]
[262] Chapman Report, page 16; Exhibit 1, page 1465.
Mr Fern's evidence, as has been noted above divided the Subject Land into three portions without regard to lot boundaries.
Our approach is, therefore, closer in principle to that taken by Mr Fern, whose evidence we have generally preferred for reasons previously given.
Applying a capitalisation rate of 12% (for reasons set out above in Issue #3) the UV of the Subject Land (as a whole) is, we find, $2,081,250.

Issue No. 7 - if the UV of the Subject Land is (substantially) in excess of the previous UV, does that make it 'not fair or … unjust, inequitable or incorrect' pursuant to s 32(3) of the VLA and, if so, may the Tribunal revert to some other UV as a matter of discretion?

The Applicant's SIFC identifies three issues, the first of which is whether 'the [Revised] Valuation is correct'[263] and the third of which is whether, if the Revised Valuation is correct, it is 'fair, just or equitable for the purpose of s 32(3)…'[264]
[263] Applicant's SIFC, para 2(a); Exhibit 1, page 383.
[264] Applicant's SIFC, para 2(c); Exhibit 1, page 383.
Despite identifying that as the third issue, the Applicant's SIFC did not include any contentions in that regard.
The applicant did address, albeit very briefly, the issue in its written submissions, filed ahead of the hearing.[265] In its Summary, the applicant's submitted as follows:
… on any view, an increase of in the order of 13,000% in a single year, with no change in highest and best use, or any other factor is neither just not equitable even if it were correct (which is not accepted).[266]
[265] Applicant's Submissions; Exhibit 1, pages 1585 - 1597.
[266] Applicant's Submissions, para 2(e); Exhibit 1, pages 1586. Underlining added.
Similarly, it was submitted that, 'regardless of how one interprets the terms "unfair", "unjust" and "inequitable", it is plain that an increase in the order of 13,000% for a single year, with no change in the [HABU] is neither just nor equitable even if it were correct'.[267]
[267] Applicant's Submissions, para 17; Exhibit 1, pages 1590. Underlining added.
So stated, the applicant's case appears to be that we can set aside the Revised Valuation, even if we reach the view that it is correct.
Put another way, the applicant appears to suggest that under s 32(3) of the VLA there is a discretion to be applied, by both the respondent and the Tribunal on review, to impose a valuation that is fair, just and equitable, even if to do so results in a valuation that is not correct.
For the reasons that follow, we do not accept those submissions.
Before we go any further, though, we note that Mr McKenna did not address the issue in his oral opening. Neither did he address the matter in his oral closing submissions on behalf of the applicant.
And while paragraph 2 of the applicant's Outline of Closing Submissions states that the Revised Valuation 'ought to be set aside because it is not fair, alternatively is unjust, inequitable or incorrect, pursuant to s 32(3) of the VLA', that submission is not explained or developed beyond, in effect, arguing that Mr Chapman's evidence should be preferred over Mr Fern's.
The respondent did not address the issue in its SIFC or in its written opening submissions. In oral opening submissions, however, Ms Ide did address the issue, albeit briefly. In effect, the applicant's submissions are summarised by the following rhetorical question:
If [the Revised Valuation is] correct, one asks the question, how could it be unjust or inequitable if it's – if it's the right figure – if it's market rate.[268]
[268] ts 34, 17 October 2022.
We agree. In our view, and we find, a valuation cannot be unfair, unjust or inequitable if it is correct.
So much, in our view, follows from both the statutory regime and the authorities, limited though they are.
The starting point must be the terms of the statute.
Section 32(3) of the VLA provides a right of objection to a valuation on the basis that it is 'not fair or is unjust, inequitable or incorrect, whether by itself or in comparison with other valuations in force under this Act.'
Section 33 then provides '[a]ny person who is dissatisfied with the decision of the Valuer-General on any objection by that person' with a right to serve on the Valuer-General a notice requiring the valuation to be referred to the Tribunal 'for a review'.
On one view, the subsection distinguishes between what is correct and what is fair, just and/or equitable. At the very least, it provides for an objection on grounds that include unfairness, injustice and inequity as well as incorrectness.
However, in our view, that does not give rise to a discretion in the Valuer-General (or the Tribunal on review) to determine a value other than that which is correct on the basis that, despite being correct, it would be unfair, unjust and/ or inequitable.
To find otherwise would be utterly at odds with the very concept of 'value', as it is defined in the VLA and as it is understood in the Spencer sense. The concept, as applied countless times since, provides for a figure to be determined in accordance with well-known and recognised rules; it does not incorporate some overarching discretion.
The issue was addressed more than 90 years ago by the English Court of Appeal in Ladies Hosiery.[269] In that case the uncontradicted evidence was that the gross value of the premises was £325. The appellant, however, sought to call evidence of other properties, which it said were comparable and which were on the rate‑roll as valued at the (significantly lower) sum of £225. It was on that basis that the appellant objected in terms which included both incorrectness and unfairness.
[269] Ladies Hosiery and Underwear Ltd v West Middlesex Assessment Committee [1932] 2 KB 679 (Ladies Hosiery).
Scrutton LJ described the appellant's case as follows:
… the essence of rating is fairness and uniformity, and I prefer my assessment to be inaccurate but uniform rather than it should be accurate but out of harmony with my neighbours.[270]
[270] Ladies Hosiery at 686.
His Lordship held that the lower court was:
not justified in disregarding the uncontradicted evidence that the assessment was a correct statement of the gross value according to the statutory definition, and altering it to an incorrect statement in order to secure uniformity in error.[271]
[271] Ladies Hosiery at 689 - 690.
Slessor LJ held, in similar terms, that it was 'quite impossible to hold that the mandatory requirements of the … Act as to the assessment of gross value in a particular case can be avoided or modified by a consideration of unfairness.'[272]
[272] Ladies Hosiery at 694. See, also, Eve LJ at 696 - 697.
In each case their Lordships found that fairness was an essential element of the legislative regime but that fairness requires that properties which are undervalued must be revalued to bring them into correctness, not the other way around.[273]
[273] Ladies Hosiery at 689 (Scrutton LJ) 693 (Slessor LJ) and 696 (Eve LJ). See, also, Barsden v Valuer General (2001) 26 SR (WA) 245 at [7]-[10].
It may be the case that, in some circumstances, there is more than one way to assess the relevant value, which may result in more than one 'correct' value for the land. If that is so, the section might be said to anticipate that an objection may be lodged where land is valued in a manner that differs to that applied to neighbouring properties with resulting differences to the values.
In J B Investments Pty Ltd[274] the applicant sought a review by the Tribunal of the respondent's decision to aggregate – to group or add parts of land together – for land valuation taxation purposes. The practical effect of the aggregation was that the rates payable by the landowner tripled.
[274] J B Investments Pty Ltd and Valuer General [2006] WASAT 55 (J B Investments Pty Ltd).
Section 24 of the VLA empowers the Valuer-General to take such approach and provides that the power may be exercised at his discretion. Before the Tribunal the applicant did not suggest that the power was not available but, rather, called an expert whose opinion it was that the aggregation approach was flawed and created an 'unfair result'.
The Tribunal rejected the applicant's position, finding that, amongst other things, the policies applied by the Valuer-General, which resulted in the aggregation of relevant parts, promoted 'consistent and rational decision-making'.
Without saying so expressly, the Tribunal's finding in J B Investments is entirely consistent with our view that a 'correct' valuation, even one which results in a tripling of the rates payable, cannot be unfair.
The only other case of which we are aware that addresses the section in any meaningful way is Western Mining, which we have previously referred to.
Before the former Land Valuation Tribunal (LVT) the parties agreed that the mining lease which covered the land in question was issued under both a State Agreement Act and the Mining Act.
The LVT approached the valuation of the land on the basis that it was possible to value the land under both paragraphs. It held, therefore, that there was a discretion which needed to be exercised as to which paragraph to choose and apply. It held that the Valuer-General had exercised its discretion in that regard fairly and that it ought not to disturb that decision.
On appeal to Nicholson J, the parties took a different approach. The respondent submitted that the mining lease was held under the relevant Agreement Act while the appellant, on the other hand, submitted that it was issued under the Mining Act.
But in the alternative, the appellant argued that if the land was capable of being assessed under both of the two paragraphs, the requirement that the valuation be fair, just and equitable required it to be assessed under the paragraph dealing with Mining Act leases.
Nicholson J held that, on a proper construction of the Agreement Act in question, the land was the subject of a lease issued under the Mining Act and that, therefore, there was no choice as to which paragraph applied and, therefore only one valuation approach applied to the land. There was not, therefore, any discretion to be exercised.[275]
[275] Western Mining Corporation Ltd v Valuer General [1988] WASC 249 at [18] - [19].
However, in the event that he was incorrect in that regard, he addressed the merits as to the exercise of discretion which would need to be performed. That is, while he took the view that there was no discretion to be exercised in the particular circumstances of the case, he proceeded on the basis that in some circumstances, such a discretion might arise.
In dismissing a further appeal to the Full Court, Brinsden J held that it was an absurdity to construe the LVA so as to allow the same piece of land 'to be valued by either of two alternative methods and yielding such proportionately different values' without providing as to which is to be selected when that occurs.[276]
[276] Valuer-General v Western Mining Corporation Ltd [1989] WASC 124 at [8] and [12]. Kennedy J and Walsh J agreed with Brinsden J's reasons.
It is not necessary for us to determine the metes and bounds of each of the terms used in s 32(3) of the VLA. It is sufficient for present purposes to find, and on the basis of Ladies Hosiery as well as J B Investments we do so find, that the right to object that a valuation is unfair, unjust and/or inequitable does not create a discretion in either the respondent or the Tribunal on review to depart from what it concludes is the correct valuation.
Put another way, our finding that the UV of the Subject Land as at DOV is $2,081,250 is the end of the matter. No discretion then arises simply because that sum is much greater than the UV previously determined.
In our view that proposition needs only be stated to be accepted. If it were otherwise, a question would exist as to when the discretion might arise; surely it would not arise upon any change in value, so how much of a change would give rise to the discretion – 10%, 100%, 1000%? - and what matters might be relevant to the exercise of the discretion.
That last point puts the matter beyond doubt in the present case because no evidence was put before us that either party submitted should be relied upon in the exercise of the discretion, should it exist.

Conclusion

For the above reasons, we find that the UV of the Subject Land as at DOV is $2,081,250. An order will be made to that effect. We will hear from the parties as to the need for any ancillary orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
10 NOVEMBER 2023