Richtech Pty Ltd v Valuer General

[2006] NSWLEC 802

Land and Environment Court

of New South Wales

CITATION:

Richtech Pty Ltd v Valuer General [2006] NSWLEC 802
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Richtech Pty Limited

RESPONDENT
Valuer General

FILE NUMBER(S):

30841, 30842, 30843, 30845, 30847, 30849, 30851, 30853, 30855, 30857, 30859, 30861, 30863, 30865, 30867, 30869, 30871, 30873, 30875, 30877, 30879, 30881, 30883, 30884, 30885, 30887, 30844, 30846, 30848, 30850, 30852, 30854, 30856, 30858, 30860, 30862, 30864, 30866, 30868, 30870, 30872, 30874, 30876, 30878, 30880, 30882, 30886 and 30888 of 2005

CORAM:

Murrell C

KEY ISSUES:

Valuation of Land :- Base date 2003 and 2004

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Spencer v The Commonwealth (1907) CLR 418;
Multari v Roads and Traffic Authority of NSW [2004] NSWLEC 649;
Daandine Pastoral Co Pty Ltd v Commissioner of Land Tax (1943) 7 The Valuer 299;
Sandhurst Trustees Limited v Roads and Traffic Authority of NSW [2006] NSWLEC 243;
Royal Sydney Gold Club v FCT (1957) 97CLR379;
Readeam Pty Limited v South Australian Land Commission (1927) 17 SASR 508;
Gwynville Properties Pty Ltd v Commissioner for Main Roads (1983) 50 LGRA 322;
Gollan v Randwick MC [1961] AC 82;
Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd [No. 2] [2006] NSWCA 386;
Richtec Pty Ltd v Valuer General [2003] NSWLEC;
Richtec Pty Ltd v Valuer General [2004] NSWLEC 291

DATES OF HEARING:

19/07/2006, 20/07/2006, 21/07/2006, 15/08/2006 and 8/11/2006

 
DATE OF JUDGMENT: 

12/29/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr D. O'Donnell, solicitor
Instructed by Mr M. Causer
of Mallesons

RESPONDENT
Mr J. Maston, barrister
Instructed by Mr B. Row, solicitor
of Crown Solicitors Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Murrell

Date 29 December 2006

Richtech Pty Ltd v Valuer General

Appeals for Base Date in 2003			Appeals for Base Date in 2004
Appeal No.	Property Ref.	Land Description	Appeal No.	Property Ref.	Land Description
05/30841	3001327	14, 15/1/14895
05/30842	3001328	4,5,6/1/14896
05/30843	3001329	10-18/2/14895	05/30844	3001329	10-18/2/14895
05/30845	3001330	19-27/2/14895	05/30846	3001330	19-27/2/14895
05/30847	3001331	28-36/2/14895	05/30848	3001331	28-36/2/14895
05/30849	3001332	1-9/3/14895	05/30850	3001332	1-9/3/14895
05/30851	3001333	10-18/3/14895	05/30852	3001333	10-18/3/14895
05/30853	3001334	19-27/3/14895	05/30854	3001334	19-27/3/14895
05/30855	3001335	28-36/3/14895	05/30856	3001335	28-36/3/14895
05/30857	3001336	1-9/4/14895, 1971//133919	05/30858	3001336	1-9/4/14895, 1971//133919
05/30859	3001337	10-18/4/14895	05/30860	3001337	10-18/4/14895
05/30861	3001338	1-8/5/14895
05/30863	3001341	9-12/5/14895
05/30865	3001342	1-4/6/14895	05/30862	3001342	1-4/6/14895
05/30867	3001343	9-13/6/14895	05/30864	3001343	9-13/6/14895
05/30869	3001344	16/6/14895	05/30866	3001344	16/6/14895
05/30871	3001345	17-24/6/14895	05/30868	3001345	17-24/6/14895
05/30873	3001346	25-32/6/14895	05/30870	3001346	25-32/6/14895
05/30875	3001347	1-58/7/14985	05/30872	3001347	1-8/7/14985
05/30877	3001349	9-16/7/14895	05/30874	3001349	9-16/7/14895
05/30879	3001350	17/7/14895	05/30876	3001350	17/7/14895
05/30881	3001351	18/7/14895	05/30878	3001351	18/7/14895
05/30883	3001352	19-24/7/14895	05/30880	3001352	19-24/7/14895
05/30884	3001354	25-32/14895	05/30882	3001354	25-32/7/14895
05/30885	3001355	1-8/8/14895	05/30886	3001355	1-8/8/14895
05/30887	3001356	9-16/8/14895	05/30888	3001356	9-16/8/14895

JUDGMENT

1 This judgment is for 48 appeals under s 37 of the Valuation of Land Act 1916 (the Act). Twenty six of the appeals are against the Valuer General’s ascribed values as at the base date of July 2003, and 22 of the appeals are in respect of the valuations as at the base date July 2004. The difference in the number of appeals in 2003 as opposed to 2004 is that four of the waterfront parcels are not under appeal for the 2004 base date valuations.

2 For the July 2003 base date the Valuer General valued the 26 parcels individually with a total value of $9, 049,500 and Mr Longa for the Respondent provides a total value of $28,552,500. The applicant contests the total land value for the 26 lots to be $1,428,000 in accordance with Mr Robertson’s evidence.

3 For the 2004 base date the Valuer General ascribes a total value for the 22 parcels of $26,265,000 and Mr Longa provides a total figure of $23,238,000. Based on Mr Robertson’s statement the applicant contests that this should be a total of $1,656,000 for the 22 parcels.

4 The experts’ valuations for the separate parcels of land for the base dates of 2003 and 2004 and the Court’s determinations are attached in Tables 1 and 2 at the end of this judgment.

5 The parcels of land are the result of a 1926 paper subdivision wherein the roads were dedicated to council. As such because the separate parcels have frontage to a dedicated road or laneway under s 27(b) of the Act the parcels, consisting of one to ten allotments, are valued separately. The allotments in the same ownership may be parcelled together where not separated by a lot owned by another owner. This is an agreed fact between the parties. It was also agreed that the 48 appeals be heard together despite there being two different base years.

6 The vacant parcels of land are bounded by the paper streets shown as Catherine Street, Carne Street and Lorna Street, parish of Cudgen in the area known as Kingscliff in the local government area of Tweed. The Lorna Street properties have a rear boundary to the reserve adjoining the ocean front beach.

7 To the north of the site the area has been recently developed and the name of the estate is Salt. This incorporates tourist accommodation, hotels, shops and residential development. To the south of the subject site is the village known as Casuarina, a relatively recent residential subdivision. Refer to Figure 1.

8 By way of background the parcels of land currently under appeal were the subject of previous valuation appeals to the Court. However, in terms of valuation law and practice I must determine these appeals on the basis of the evidence presented during these proceedings, but this would not prevent evidence in previous hearings being presented in later hearings. The percentage rise in valuations from one base date to another is not of itself a reason as to why a valuation should be varied on appeal to the Court. I accept the respondent’s submission that I must have regard to the evidence in these proceedings and not rely on determinations made in previous appeals. This approach would appear to be consistent with the case law authorities.

9 The Court has the benefit of a site inspection of the subject parcels of land as well as an inspection of what were referred to by the respondent and the applicant as comparable sales in Seaside City and the adjoining estate developments of Salt and Casuarina. The parties referred the Court to a number of authorities that I have also had regard to in my determination.

10 Expert evidence was presented to the Court on behalf of the Applicant by Mr John Robertson, a land valuer and business valuer, and for the Respondent evidence was given by Mr Gabriel Longa, valuer.

11 The paper subdivision of Seaside City was approved in 1926 and consists of 204 allotments in eight sections however the road infrastructure and services were not developed except for Catherine Street that is now known as Casuarina Way. This road is part of what is the main arterial road linking Salt Village to the north and Casuarina Village to the south continuing to Kingscliff to the north with links to the Tweed Coast Road to the south.

12 In Mr Longa’s statement of evidence he notes that of the 204 lots in Seaside City the applicant, Richtech Pty Ltd are in possession of 172 of these and the 35 lots not in their ownership are located spasmodically along the beach front and non beach front section of Lorna Street. There are some 10-15 owners of these other lots. This can be seen in Figure 3. He further notes that the size of the lots range generally from 800 to 1100 sq m except the residue lot of 9.644 ha known as Lot 1971 located on the western side of Casuarina Way that fronts Cudgen Creek. This land is required for dedication to the Council as part of the approval in the adjoining urban village known as Casuarina. This land has a boundary to Cudgen Creek and is a low-lying area containing wetlands.

13 Mr Robertson stated that there is negligible utility of the land without a rezoning of the subject parcels of land. He considers that there is a great deal of risk and uncertainty associated with the timing of the rezoning and this is further complicated by the existing subdivision layout as there has been no regard to communal open space and facilities to provide for an integrated development.

14 Mr Longa for the respondent is of the opinion that the best method is a hypothetical exercise and he has also compared the sales in the adjoining developments to the north and south in Salt and Casuarina and other en globo lands.

15 The difference with the parcels of land within Salt and Casuarina is that they are currently zoned to permit dwelling houses and medium density forms of residential and tourist development whereas the subject land does not permit dwelling houses.

16 The villages known as Salt and Casuarina are recently planned estates with the trade marks of ‘new urbanist’ developments aimed at the middle to higher end of the market. These are comprehensively planned residential estates that have a high standard of available infrastructure and community facilities Salt village has two hotel resorts, one operated by ‘Outrigger’ and the other managed by ‘Peppers’. Salt has a village centre and beach front park offering tourist retail facilities as a focus surrounded by single and medium density development. Casuarina has a resort recreational club, conference centre, sporting fields and tourist retail facilities as a central focus for the dwellings and medium density development surrounding the village.

17 Mr Longa refers to comparable sales of residential lots in the adjoining developments of Casuarina and Salt. Mr Robertson is of the opinion that the adjoining residential estates are not comparable to the lots within Seaside and there is no utility in a direct comparable sales analysis with he subject land in Seaside because of the need for it to be rezoned and the risk and uncertainty associated with this process compared to land already zoned. Furthermore Mr Robertson states that the purchaser for land in Seaside would be a speculator as opposed to an end purchaser as for the sales in Salt and Casuarina where the lots are zoned to build dwelling houses.

18 The valuers were asked on numerous occasions by the Court to advise of what is the highest and best use of the parcels of land under the current zoning. The valuers response to this question was that the highest and best use lay in the potentiality of the land for single dwellings and this relies on rezoning of the land.

19 From what will become clearer further in this judgment there is a major change in the planning regime for the base date valuation of 2003 compared to 2004 and in my assessment these changed circumstances in terms of the certainty of the rezoning of the land is a major consideration in determining the valuations for the two base dates. Refer to Figures 2 and 4.

20 The more relevant provisions of the Valuation of Land Act 1916 for these appeals include the following sections:

6A. Land value

(1) The land value of land is the capital sum which the fee-simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona-fide seller would require, assuming that the improvements, if any, thereon or appertaining thereto, other than land improvements, and made or acquired by the owner or the owner’s predecessor in title had not been made

26 Where lands are to be included in one valuation

(1) Where several parcels of land adjoin, are owned by the same person, and where no part is leased, they shall be included in one valuation, unless the Valuer-General otherwise directs: Provided that any such parcels of land shall be valued separately if buildings are erected thereon which are obviously adapted to separate occupation.

(2) Where several parcels of land adjoin, are owned by the same person and are all let to one person, they shall be included in one valuation, unless the Valuer-General otherwise directs.

(3) This section does not apply to land, which is required, by section 27B, to be separately valued or included in one valuation.

27 Lots in subdivision to be separately valued

(1) The Valuer-General may make valuations, in accordance with this section, of the land in a deposited plan on registration of the plan.
(2) If:

(a) one or more lots in a deposited plan in which all lots are owned by the same person, or

(b) one or more lots in a deposited plan that are owned by the same person and included in one valuation (whether or not made under this section),

is or are sold or otherwise conveyed to another person or is or are compulsorily acquired, fresh valuations of the land in the plan or included in the valuation concerned must be made by the Valuer-General in accordance with this section.
(3) Subsection (2) (a) does not apply if the Valuer-General has made a valuation under subsection (1) of the land in the deposited plan concerned.

(4) Separate valuations are to be made in respect of each lot comprising the land that is the subject of the valuation.
(5) However:

(a) the Valuer-General may, at the Valuer-General's discretion (but subject to section 26 (1)), include adjoining lots that are owned by the same person in the one valuation (which may also include other adjoining land owned by that person), and

(b) the Valuer-General must (subject to section 28) include in one valuation lots owned by the same person if those lots are worked in one holding for agricultural or pastoral purposes.

(6) Land that is required to be separately valued under this section is to be valued, for the purposes of any relevant rating or taxing authority:
(a) as at the 1 July by reference to which the land was valued for the purposes of the valuation list for that authority current at the time the land became required to be separately valued, and

(b) as at the 1 July by reference to which the land has been valued for the purposes of any subsequent valuation list for that authority.

(7) Rates and taxes (other than land tax under the Land Tax Management Act 1956) levied or leviable on the land in the deposited plan for the rating and taxing years following the sale or other conveyance or compulsory acquisition (or, if the valuation was occasioned by the registration of a deposited plan, following that registration) are to be based on valuations made under this section. Those valuations are to be used until the land is included in a later valuation that may be used for rating or taxing purposes.

(8) If part only of a lot in a valuation under this section is subject to a particular rate, the value of the land is to be apportioned so as to show separately the value of that part.

Statutory Planning Framework

21 The subject site and surrounding area represents a long narrow sandy peninsula between the Pacific Ocean and Cudgen Creek. The majority of the land that forms ‘Seaside City’ was zoned 2(f) ‘Tourism’ at the time of the hearing and this fronts an open beach to the Pacific Ocean with a coastal reserve of sand dunes and associated vegetations between the parcels of land under appeal and the ocean.

22 The land nearer the ocean is slightly elevated and on the western side of Casuarina Way it falls to flood prone land that is within Lot 1971 which has a long tidal creek frontage and areas of mangroves and littoral rainforest. This lot is zoned part 2(f) for the eastern road front section and the larger portion being 7(a) Environmental Protection (wetlands and littoral rainforest) over the north-west and south-west corner. For the parcels fronting Lorna Street and for the common boundary to the coastal lands there is a 50 year foreshore erosion line traversing the eastern residential beach front lots where the land to the east is zoned 7(f) (Environment Protection Coastal lands) and this impacts in varying degrees on these parcels of land.

23 The zoning extract at Figure 2 shows the zoning of the land as at the time of the hearing. Since the hearing Amendment No 3 was gazetted and this has the effect of re-zoning the land previously zoned 2(f) to 2 (e) and 7(l) as shown in Figure 4.

24 The parcels of land under appeal are subject to the provisions of the Tweed Local Environmental Plan 2000 (LEP 2000). For the beachfront lots these are affected to varying degrees by the Environment Protection coastal zone 2(f). The relevant controls of the LEP 2000 are as follows.

Zone objectives for 2 (f) Tourism
Primary objectives
• to encourage integrated tourist development and uses associated with, ancillary to or supportive of the tourist development, including retailing and service facilities, where such facilities are an integral part of the tourist development and are of a scale appropriate to the needs of that development.
• to ensure that prime sites are developed for the best use and fulfil their economic and employment generating potential for the area.

Secondary objective
• to permit high quality residential development as being integral and supportive of the primary intent of this zone (tourist orientated development) in terms of design and management structure and only at a scale which enhances the proposed tourist resort character.

Development within the zone
In Zone 2 (f) development for the purpose of the following is:
Item 1 allowed without consent:
• environmental facilities

Item 2 allowed only with consent:
• bed and breakfast
• dwelling house if for a caretaker
• any other buildings, works, places or land uses not included in Item 1, 3 or 4
  Item 3 allowed only with consent and must satisfy the provisions of clause 8 (2):

  boat repair and servicing facilities	car repair stations
  boat showrooms	helipads
  bulk stores	heliports
  bus depots	liquid fuel depots

  Item 4 prohibited:

  abattoirs	offensive or hazardous industries
  agriculture	recreation establishments
  animal establishments	recreation vehicle areas
  brothels	restricted premises
  bulky goods retailing	retail plant nurseries
  dwelling houses (unless for caretakers)	roadside stalls
  extractive industries	rural industries
  forestry	rural tourist facilities
  home industries	rural workers' dwellings
  industries (other than light industries)	sawmills
  institutions	stock and sale yards
  junkyards	transport terminals (other than bus depots or bus stations)
  mines	warehouses
  motor showrooms

  Zone 7 (a) Environmental Protection (Wetlands and Littoral Rainforests)
  Zone objectives Primary objectives
• to identify, protect and conserve significant wetlands and littoral rainforests.

• to prohibit development which could destroy or damage a wetland or littoral rainforest ecosystem.

Secondary objectives

• to protect the scenic values of wetlands and littoral rainforests.

• to allow other development that is compatible with the primary function of the zone.

Development within the zone

In Zone 7 (a) development for the purpose of the following is:
Item 1 allowed without consent:
• nil

Item 2 allowed only with consent:

• beach maintenance
• bushfire hazard reduction that is not exempt development
• home business
• rea estate signs
• bed and breakfast
• environmental facilities
• noxious weed control that is not exempt development

In Zone 7 (f) development for the purpose of the following is:
Item 1 allowed without consent:
• beach maintenance
• environmental facilities

Item 2 allowed only with consent:

bed and breakfast	recreation areas
bushfire hazard reduction that is not exempt development	recreational beach activities
earthworks	roads
emergency service facilities	urban stormwater water quality management
noxious weed control that is not exempt	utility installations (other than gas holders or facilities generating works)
public utility undertakings development	works for drainage and land fill
real estate signs

Item 3 allowed only with consent and must satisfy the provisions of clause 8 (2):

agriculture	caravan parks
camping grounds	community buildings
car parks	mineral sand mines

Item 4 prohibited:

• any buildings, works, places or land uses not included in Item 1, 2, or 3

Zone 7 (I) Environmental Protection (Habitat)

Zone objectives
Primary objectives

• to protect areas or features which have been identified as being of particular habitat significance.
• to preserve the diversity of habitats for flora and fauna.
• to protect and enhance land that acts as a wildlife corridor.

Secondary objectives

• to protect areas of scenic value.
• to allow for other development that is compatible with the primary function of the zone.
  Development within the zone
  In Zone 7 (I) development for the purpose of the following is:
  Item 1 allowed without consent: nil
  Item 2 allowed only with consent:

  bed and breakfast	earthworks
  bushfire hazard reduction that is not exempt development	environmental facilities
  business identification signs	home businesses
  dwelling houses if on an allotment of at least 40 hectares or an allotment referred to in clause 57 and if the number of dwellings does not exceed one for each 40 hectares of land contained within the allotment	noxious weed control that is not exempt development

Item 3 allowed only with consent and must satisfy the provisions of clause 8 (2):

agriculture	roads
camping grounds	urban stormwater water quality management facilities
emergency service facilities	utility installations (other than gas holders or generating works)
forestry	works for drainage and landfill
public utility undertakings

Item 4 prohibited:

• any buildings, works, places or land uses not included in Item 1, 2, or 3

25 In November 2006 following the conclusion of the hearing the Court heard a motion from the Respondent and allowed Amendment No. 3, gazetted September 2006, to be tendered into evidence. I made this decision on the basis that the Amendment No. 3 was in draft and had been exhibited prior to the hearing and it could not be seen to prejudice the applicant. However the other documents the respondent sought to tender I did not consider should be given any weight and are not relevant to my determination of matters under appeal. In the circumstances I did not consider it to be in the interests of natural justice to reopen the matter as the documents were not in the public domain, even in draft form, at the time of the hearing and could not have been anticipated.

26 The objective of Amendment No 3 is to insert provisions for the land known as Seaside City with the objectives:

• To ensure that development of the land is undertaken within an appropriate planning framework.

• To ensure that the development of the land considers relevant environmental issues.

• To facilitate the approvals process for the development of Seaside City having regard to the subdivision and ownership pattern of the land.

27 The Amendment also requires that a specific development control plan be approved before consent is granted to development of the land as well as satisfactory arrangements being in place before consent is granted for the provision of public amenities and services.

28 The two significant zone changes in Amendment 3 are that the lot known as 1971 is rezoned from residential to 7(l) Environment Protection – Habitat and the paper subdivision with the allotments in Catherine, Carne and Lorna Streets, are rezoned to 2(e) Residential Tourist wherein dwelling houses are permissible. The affectation of the coastal 2F zone boundary for the beachfront/reserve lots remains the same. These zoning changes can be seen in Figure 4, and the date the plan was gazetted is 29 September 2006.

29 At the time of the hearing there was a great deal of discussion about the weight to be given to the draft Amendment No 3. The draft plan refers to the need for a master plan or DCP to be approved prior to consent being granted to land affected by the Amendment. A similar provision is contained in the Amendment No 3 as gazetted.

30 The Council resolved in March 2004 to progress the draft local environmental planning process to facilitate the re-zoning of the land in Seaside City. In summary such action would permit the erection of dwelling houses on the lots within the paper subdivision of Seaside City.

31 The 2(e) Residential Tourist Zone contains the following primary objectives:

Zone objectives
Primary objective
• To encourage the provision of family-oriented tourist accommodation and related facilities and services in association with residential development including a variety of forms of low and medium density housing and associated tourist facilities such as hotels, motels, refreshment rooms, holiday cabins, camping grounds, caravan parks and compatible commercial services which will provide short-term accommodation and day tourist facilities.
  Secondary objective
• To permit other development which has an association with a residential/tourist environment and is unlikely to adversely affect the residential amenity or place demands on services beyond the level reasonably required for residential use.

In Zone 2 (e) development for the purpose of the following is:
Item I allowed without consent:
• environmental facilities
  Item 2 allowed only with consent:
  
• bed and breakfast
• any other buildings, works, places or land uses not included in Item 1, 3 or 4

Item 3 allowed only with consent and must satisfy the provisions of clause 8 (2):

boat repair and servicing facilities	helipads
bulk stores	heliports
bus depots	light industries
car repair stations	recreation establishments


Item 4 prohibited:

abattoirs	mines
agriculture	motor showrooms
animal establishments	offensive or hazardous industries
boat showrooms	recreation vehicle areas
brothels	restricted premises
bulky goods retailing	roadside stalls
depots	rural industries
dwelling houses if each is on an allotment of less than 450m2	rural tourist facilities
extractive industries	rural workers' dwellings
forestry	sawmills
industries (other than home industries or light industries)	stock and sale yards
institutions	storage units
junkyards	transport terminals (other than bus depots or bus stations
liquid fuel depots	warehouses

32 The zoning change is significant in that the residential 2(e) zone permits dwelling houses to be erected on allotments of land greater than 450 sq m whereas the 2(f) zone prohibits dwelling houses unless for caretakers.

33 It was submitted on behalf of the applicant that the Court should give no weight to the rezoning as shown in amendment 3 to the Tweed LEP 2000 because a prudent purchaser could not possibly know of when the rezoning would occur. The respondent on the other hand submitted that this is a relevant matter for the Court’s consideration. The weight to be given to amendment No. 3 is discussed below for both the 2003 and 2004 base dates.

34 On the question of whether subsequent events that have taken place following the base date should be given weight I accept the respondent’s submission that in certain circumstances subsequent facts and events can be demonstrated to be relevant in a valuation matters. However care should be taken in the weight to be given to subsequent events. Similarly subsequent sales may also be taken into consideration subject to appropriate weight when analysing comparable sales. Once again I have had regard to the authorities referred to me on this issue (AMP Henderson Global Investors v The Valuer General [204] 134 LGERA 426 at 431).

Respondent’s Evidence

35 Mr Longa in his statement provides sales of en globo land to show in his opinion the demand for land even where rezoning or a lack of services and amenities and other constraints need to be overcome. He maintains that there is a strong market for coastal en globo land for residential developments. These sites include a parcel 6 km north inland and north west of Ballina with potential for 140 lots on land zoned for urban investigation. This site is some 29 ha and was purchases for $6.6 million in June 2003. Sales 2 of en globo Land at Old Bar near Taree is a parcel of land of some 10 ha with a purchase price of $4.5 million in May 2004. This land adjoins a village and is identified for urban release purposes. Sale No. 3 of en globo Land at East Ballina some 10 ha with a purchase price of $10.15 million sold in November 2002 zoned Residential A. Sales No. 4 of en globo Land at Ballina is a parcel of 24 ha with a purchase price of $12.5 million in January 2005 zoned Residential 2A with a subsequent approval of a 210 lots. Sale No. 5 of en globo Land is at Murwillumbah and this has an area of 25 ha for the sale price of $4 million in November 2003. Ten hectares of this land is zoned for residential purposes.

36 Mr Longa provides as part of his comparable sales analysis 11 sales at the villages of Casuarina and Salt. He summarises these in the table below:

Casuarina & Salt Village Development Sites

Location	Area	Contract Date	Price	Rate Metre	Comments
Casuarina Way & Kamala Crescent, Casuarina	1.6197 ha	21 May 2004 (Negotiated late 2003)	$8,250,000	$509.35/sq m	Good indicator for the type of development, which could occur in subject location when developed.
She-Oak Lane, Casuarina	3,095 sq m	9-Jul-2003	$1,000,000	$323.10/sq m	Good indictor for the type of development, which could occur in the subject location when developed.  Sale at the lower range of value.

Casuarina & Salt Village Non Beachfront


Location	Area	Contract Date	Price	Rate Metre	Comments
Clara Lane, Casuarina	646.10 sq m	8-Mar-2004	$370,000	$572.67/sq m	Reliable sale, single dwelling site. Prior sale $230,000 October 2002.
Clara Lane, Casuarina	646.10 sq m	21-May-2004	$400,000	$619.1/sq m	Single dwelling site.  Prior sale $250,000 February 2002.  Value adjusted base date 1/7/2003 $350,000.
Harpullia Ct, Casuarina	540.10 sq m	23-May-2003	$325,000	$601.74 sq m	Reliable sale, single dwelling site. Prior sale $169,000 July 2001.
Malibu Circuit, Salt Village, Kingscliff	606 sq m	15-Nov-2004	$350,000	$577.56/sq m	Reliable sale, single dwelling site.


Casuarina & Salt Village Beachfront


Location	Area	Contract Date	Price	Rate Metre	Comments
Eclipse Lane, Casuarina	728.40 sq m	5-May-2004	$665,000	$913/sq m	Reliable sale, single dwelling site.Value adjusted base date 1/7/2003 $600,000.
Eclipse Lane, Casuarina	702.60 sq m	23-Apr-2004	$675,000	$960.72/sq m	Reliable sale, singe dwelling site.  Value adjusted base date 1/7/2003 $600,000.
She-Oak Lane, Casuarina	710.60 sq m	16-Jun-2003	$540,000	$760/aq m	Reliable sale, single dwelling site.
Beech Lane, Casuarina	639.10 sq m	8-May-2003	$600,000	$939/sq m	Reliable sale, single dwelling site.
North Point Avenue, Salt Village, Kingscliff	656 sq m	26-Nov-2004	$1,600,000	$2,439/ sq m	Reliable sale, single dwelling site in Salt Village.  Prior sale $787,000 June 2004.  Salt Village beachfront in a superior elevated location in comparison to Casuarina beachfront.

37 The comparable sales Mr Longa includes in his table for those in Seaside City are set out in the table below.

Location	Area	Contract Date	Price	Rate Metre	Comments
Lorna Street, Kingscliff	1,284 sq m	31-May-04	$1,000,000	$778.82/sq m	Beachfront. Prudent purchaser who at a later date purchased an adjoining beachfront lot for more money.
Lorna Street, Kingscliff	7,164 sq m	21-Jul-2004	$2,500,000	$349/sq m	6 lots sold in one line. 3 beachfront, 3 opposite beachfront. Prudent purchaser aware of subject beachfront lands zoning restrictions.
Lorna Street, Kingscliff	1,012 sq m	28-Jul-04	$745,000	$736.17/sq m	Prudent purchaser of a beachfront lot aware of land development issues.
Lorna Street, Kingscliff	1,012 sq m	9-Mar-01	$310,000	$306.32/sq m	Good sale of beachfront land before the boom.  Land affected by partially by zoning limitations to the front beach section.

38 It is noted that the sales in Casuarina, Salt Village and Seaside City are the same for both 2003 and 2004 in Mr Longa’s Statements of Evidence.

39 Mr Longa in his valuation rationale states that in order to assess the fair market value consideration was given to:

1. The highest and best use of the land in the future.

2. The market and values in the two adjoining developments and their success rate.

3. The buoyant markets in particular at the time of the base date 2003. The market was strong through 2004 with increases not as substantial as seem between 2002 and 2003. Beachfronts however were continuing to show strong increases, due to lack of supply and strong buyer demand.

4. The likely zoning and subdivision of the land in the future.

40 Mr Longa also notes that the land has been under investigation over a long period of time and “the fragmented nature of the ownership has hindered the task to a point”. He states that “the delay in processing the Local Environmental Study and rezoning that started in 2000 and unfortunate events in its delay and recommencing at a later date has obviously upset the land owners...however it is clear that for the land to be maximised, a rezoning would need to be taken”. He also notes that “the out dated layout of the subdivision would be a concern however the large development parcels are clearly defined”. He goes on to state that “the results of the LES conducted in June 2005 have shown that there are no substantial impediments to development of the land and recommends the rezoning”.

41 Mr Robertson provides five comparable sales in his statement of evidence and these are as shown in the table below:

11 Comparable Sales Evidence

2000 Sales:

Sale No 1: Lot 1 Sec 2 Lorna Street
Sale Price: $34,000
Sale Date: 9 November 2000
Title Details: Lot 1 Sec 2 DP14895
Land Size: 1,328 m2
Purchaser: T W Staines

Sale No 2: Lot 2 Sec 2 Lorna Street
Sale Price: $34,000
Sale Date: 9 November 2000
Title Details: Lot 2 Sec 2 DPI 4895
Land Size: 1,315 m2
Purchaser: Cudgen Superannuation

Sale No 3: Lot 3-5 Sec 2 Lorna Street
Sale Price: $180,000
Sale Date: 9 November 2000
Title Details: Lot 3,4,5 Sec 2 DP14895
Land Size: 4,003 m2
Purchaser: M & J Jutrisa

Sale No 4: Lot 6 Sec 2 Lorna Street
Sale Price: $34,000
Sale Date: 9 November 2000
Title Details: Lot 6 Sec 2 DPI 4895
Land Size: 1,353 m2
Purchaser: Cudgen Superannuation

Sale No 5: Lot 14,15 Sec, 6 Lorna Street
Sale Price: $68,000
Sale Date: 9 November 2000
Title Details: Lot 14,15 Sec 6 DP14895
Land Size: 3,294 m2
Purchaser: T W Staines

42 In Mr Robertson’s 2004 statement he provides an assessment of more recent sales in Seaside City as follows:

2004 Sales:
Lorna Street:

1. Lot 16 in Section 5 DP 14895 sold for $1,000,000 on 31 May 2004.

Land Size: 1,284 m2

Adjacent to Salt development.

2. Lots 7,8,9 in Section 1 and Lots 7,8,9 in Section 2 DP 14895 sold for $2,500,000 on 21 July 2004.
Land Size: 7,164 m2

Discussions with purchaser advised the purchase was a speculative purchase. Purchaser advised that they were only interested because of the beachfront land and that they would not be interested in purchasing a non beachfront block in the estate. Beachfront blocks affected by 7(f) zone.

3. Lot 13 in Section 5 DP 14895 sold for $745,000 on 28 July 2004.
Land Size: 1,012 m2

Discussions with purchaser advised the purchase was a speculative purchase. Purchaser advised that they were only interested because of the beachfront land and that they would not be interested in purchasing a non beachfront block in the estate. Beachfront block affected by 7(f) zone.

Valuer General's Multiple Valuation Basis:
The Valuer General has provided separate valuations for 26 separate (22 objections) parcels which have been delineated primarily on parcels created by the proposed road pattern. The valuations for 22 of the parcels have been objected to. The artificial subdivision of the total holding into these smaller separate parcels assumes each of the parcels are to be offered to a hypothetical purchaser which in turn assumes that the holding will have 22 different land owners. This assumption will almost effectively destroy any chance of an integrated planning approach to apply to the total holding. The owners of each separate parcel will not have the economic capacity to provide the required infrastructure to develop the individual parcels or to undertake the necessary studies and as such will severely limit the future development potential of the land and consequently the overall value of the total holding.

Findings

43 In my consideration of the appropriate values for the parcels of land in Seaside City I have considered all the evidence to the Court including the sales identified by the experts and the factors and variables that differentiate the subject land to the comparable sales.

44 For the purpose of my determinations I have taken into consideration the evidence of the experts who used vastly different methodologies in attributing values to the parcels of land under appeal. The experts could not agree on any comparable sales, let alone a set of comparable sales or the most comparable sale.

45 However, it is a matter of fact and degree as to comparability and clearly the more adjustments and the extent of these the greater the caution in applying such sales to the land under appeal. Because of the significant difference of the vacant blocks of land in Salt and Casuarina where dwelling houses are permissible this has been a significant reason to treat these sales with extreme caution, in particular for the 2003 base date. It also follows in my assessment that there needs to be different weighting applied to the imminence of the rezoning under the draft amendment No. 3 for the base date 2004 valuations as opposed to those of 2003.

Lot 1971

46 Lot 1971 has an area of 9.64 ha and it forms part of the VG reference of 300136 together with Lots 1-9 in DP 14895. These nine lots together with Lot 1971 provides a total area of 10.56 ha. Mr Robertson provides a separate valuation for 1971 due to the fact that:

A written deed of agreement between council and Richtech Pty Ltd was executed prior to the base date thereby it is agreed that Richtech would dedicate a significant area of the land to council as a condition of consent for adjoining lands in Casuarina Estates. A caveat has been lodged with the Land Titles office by council. At the relevant date this land whilst still in Richtech's name could not be transferred to a third party.

47 The respondent on the other hand did not ascribe a separate value to Lot 1971 but included it in the valuation with the Lot 1-9 DP 14895 that had frontage to Casuarina Way (Catherine Street on original subdivision plan).

48 In Mr Longa’s statement at Exhibit 7 he provides valuations of all of the parcels under appeal and his sale No. 10 is for the Lots 1-9 together with 1971. In this exercise he ascribes a block value of $500,000 to 1971 and $3,195,000 for the nine lots. In the profit and risk he increases this compared to other lands within the subdivision from 50% to 60% to reflect the further risk due to uncertainty of development of land adjacent to the Cudgen Creek (that is the Lot 1971). In analysing his figures and using a 50% risk factor as he has for most of the other lots this provides a figure of $1,597,500 for the nine lots minus development expenses of $450,000. That is $1,147,500 and if this is then deducted from his total market value of $1,028,000 this leaves $119,500.

49 I accept Mr Maston’s submission and he referred to the case of Gollan v Randwick MC [1961] AC82 that provides the authority that the fee simple must be taken to be the unencumbered fee simple in terms of covenants and restrictions on title. As such the caveat on the land lodged by the council is not a relevant matter for my consideration however from the evidence presented to the Court in terms of the state policies (SEPP 14 Wetlands and SEPP 26 Littoral Rainforest) and the generally low lying nature of the site and its juxtaposition with Cudgen Creek I am satisfied that the value of this parcel of land is nominal in terms of its potentiality and in terms of the highest and best use for the land. I base this on the evidence to the Court and I am satisfied that it should be valued to reflect the nature of this land as it can be clearly distinguished from other parcels in the estate.

50 Given the constraints and uniqueness of the circumstances for Lot 1971 in the subdivision I agree this needs to be assessed as such. However. I would err in law merely to accept a previous determination. In the absence of any other evidence I have utilized the above disaggregation of Mr Longa’s evidence as opposed to bringing forward the previous determination urged by the applicant. As such I have attributed a value of $120,000 to Lot 1971 for both base date years. In my determination the more imminent change in zoning to 7(l) under the Amendment No. 3 warrants no increase in value from 2003 to 2004 base date year.

In-line discount

51 Mr Robertson in his statement at Exhibit Q ascribes values for each parcel and a rate per lot then factors in an ‘in-line discount’ that has the effect of more than halving the rate per parcel to some $8,300 for 172 allotments. In certain circumstances in-line discounts are a valid consideration. However I am not persuaded by the evidence presented in these proceedings on behalf of the applicant that Mr Robertson’s discount should be applied.

52 Mr Robertson provides a note commenting on the Valuer Generals multiple valuation basis and he states:

The artificial subdivision of the total holding in these smaller separate parcels assumes that each of the parcels are to be offered to a hypothetical purchaser which is turn assumes that the holding will have 26 different land owners. This assumption will almost effectively destroy any chance of an integrated planning approach to apply to the total holdings. The owner of each separate parcel will not have the economic capacity to provide the required infrastructure to develop the individual parcels and as such will severely limit the future development potential of the land and consequently the overall value of the holdings.

53 The above statement would tend not to support an ‘in-line discount’ in the circumstances of this case but rather this could facilitate the approach of an outcome for a more comprehensive development of the estate. On the other hand it could also be argued that the ultimate goal of development could be achieved more readily without the complexities of multiple ownership. This was discussed during the proceedings. Furthermore the evidence of Mr Robertson is that three lots on the western side of Lorna street were sold together in Seaside for a much higher price than the adjoining individual lots and this appears to be contrary to the notion that an ‘in line discount’ should be applied in the circumstances of these appeals. He states that in November 2000 three lots were sold for $180,000 whereas the adjoining single allotments each sold for $34,000, that is the lots in the parcel commanded an 80% higher price per lot. Clearly the circumstances and special value to the same owner are factors that would need to be analysed in a comparative sales exercise but at the same time this does not support factoring in an ‘in-line discount’.

54 Mr Robertson and Mr Longa relied on different methodologies to arrive at their valuations. During the proceedings the experts conferred and prepared joint reports, and in Exhibit DD there are amended calculations and figures provided but these are still significantly and vastly different. The main purpose of conferencing was to assist the Court in comparing like with like in terms of the methodologies employed by the experts. As such an exercise was undertaken to look at what was referred to as a ‘top down’ and a ‘bottom up’ approach, however other factors emerged in the calculations that were ascribed different weight by the experts and while there was a slight narrowing of the difference this also demonstrated the difficulties of mathematical exercises.

55 The parties referred to the judgment of Biscoe J in Sandhurst Trustees Limited v Roads and Traffic Authority of NSW [2006] NSW LEC 243. In this judgment his Honour refers to two competing valuation methodologies and these are described at paras 74 – 76.

The first I will call the bottom up method whereby the subject land should be valued on the basis of a restrictive Rural 1(a) zoning in force at the acquisition date and, if appropriate, an addition made for the chance of transit centre zoning, which permitted 90 dwellings per hectare…

The second method I will call the top down methodology whereby the acquired land should be valued as though it had transit centre zoning which permitted 90 dwellings per hectare and a deduction should be made for the chance that that rezoning and such development may not eventuate, and for the time required for it may eventuate.
Which method should be applied depends on the circumstances, as the authorities … demonstrate.

56 The only point on which the valuers agreed is that under the existing zoning the subject sites have extremely limited utility and will require a rezoning to residential 2(e) to permit development as single residential dwelling sites to enable the existing lots in the subdivision to be developed. When the experts were questioned on what they considered to be the ‘highest and best use’ of the land they responded in similar terms to the above and referred to the ‘potentiality’ of the land. This is referred to in a number of judgments referred to the Court and in the recent judgment of the Court of Appeal in Sydney Harbour Foreshore Authority v Walker Corporation Pty Limited [2] [2006] NSWCA 386 at para 18 it states “the value of land may reflect potentialities which have not been realised”.

57 In the current proceedings the experts while they agreed that the ‘highest and best use’ is the ‘potentiality of the land’, the critical question becomes in the Court’s mind the timing of when the potential of the land may be realised and this would appear to be a significant reason for the great divergence in valuations.

58 Mr Longa’s analysis referred to comparable sales for sites in the adjoining developments of Casuarina and Salt without in my assessment an appropriate adjustment for the parcels of land in Seaside City for all intents and purposes, the land is not ‘ripe for development’. Under cross-examination he stated that the draft Amendment No 3 to rezone the land had been ‘put on hold’ in 2001 and was not reactivated until March 2004. However the difference in his valuations between the two base dates do not bear out the significant change in imminence and certainty of the LEP. From the evidence it is also apparent that rezoning of the subject land was more certain in 2000 than in 2003 when the draft LEP was in abeyance and at the most the horizon would have been five years plus. Whereas in 2004 the making of the plan was not only far more certain but within a reasonable time frame in terms of expectations for prudent purchasers.

59 It was submitted on behalf of the applicant that Mr Longa’s hypothetical methodology is flawed because the land is not ‘ripe for development’ as it is not zoned to permit single dwellings, the agreed potential highest and best use, and this cannot be realised until there is a rezoning. Mr Longa provides a hypothetical exercise to deduce the value of the lots however on the basis of his report I am not satisfied that the inputs the basis of the assumptions of values are sound. Mr Longa at the end of the calculations carries out a secondary check method based on the analysis of en globo sales and states that he considers the subject land superior to all the en globo sales as it is subdivided giving the owner the flexible advantage to develop in whole or stages or alternatively sell off some of the allotments or parcels. A description of the en globo sales that Mr Longa includes is above and he considers that the en globo sales show the demand and value for large parcels of land with development potential. However, I agree with Mr Robertson that these selected sales do not provide a guide. For example, generally it would appear that the parcels are large parcels in one ownership and do not have the complications of multiple owners. They are geographically removed from the subject site and many are further inland. Furthermore, many of the en globo sites are either zoned to permit residential development that are ‘ripe for development’ or have a portion that is zoned to permit residential development. The Port Stephens parcel is the exception but this may have other qualities not applicable to the subject parcels.

60 Furthermore the sales identified in Casuarina and Salt are not individually compared to the subject parcels under appeal to allow a critical analysis of similarities and differences in Mr Longa’s analysis. If the subject land was already zoned to permit dwelling houses on each lot then I may have reason to find credibility in Mr Longa’s methodology. The difficulties with his methodology were also highlighted by Mr Robertson when the exercise of ‘top down’ was undertaken and in analysing the multiplier factor for the March 2001 sale of Lot 10 in Seaside that showed a 10.3 multiple. On Mr Longa’s own evidence he considered this to be excessive and then proceeded to use other multipliers of 3, 5.29 and 6.47 without providing any reasoning.

61 The sales in Salt and Casuarina must be analysed carefully and with caution because of the extent of the adjustment for the different zoning. The applicant referred the Court to the judgment of Redeam Pty Ltd v South Australian Land Commission [1977] 40 LGRA 151. In this judgment at 158 Jacobs J held that similarity of zoning is an important factor in determining comparability as it “plays a large part in determining the permissible land use, which in turn has a substantial bearing upon value”. Mr Longa did not in my assessment attribute appropriate weight to allow for the rezoning process. He did not perceive the actual re-zoning process carries with it significant delay and risk and therefore despite factoring in development and other costs, at the end of the day the most significant variable of risk associated with re-zoning severely undermines Mr Longa’s analysis to the extent that I reject his values. Furthermore the lack of difference in his 2003 and 2004 valuations does not recognize the significantly changed circumstances and the imminence of the rezoning to achieve the potentiality of the parcels of land.

62 I accept Mr Robertson’s evidence that it is difficult to compare sites that are already zoned to permit single dwellings. I also prefer his evidence because he demonstrated a greater knowledge and understanding of the development and rezoning process. He was familiar with the determinations of previous development application refusals and the reasons. That is primarily before development applications could be considered there is a need to await comprehensive planning and development for the whole estate. He also demonstrated to the Court greater experience and a more practical approach.

63 As submitted on behalf of the respondent in terms of s 40(2) of the Act the onus is on the applicant to provide evidence as to why the valuations as at the base date of 2003 and 2004 should be disturbed. In this regard on balance I am persuaded by the written and oral evidence of Mr Robertson that adjustments should be made to the base date valuations. In my assessment his extensive experience is evident in that he displayed a more thorough and broader knowledge of the market and more cogent reasoning, even though I do not accept the ‘in line’ discount he applied and he does not in my assessment provide sufficient adjustment for the greater certainty and imminence of the rezoning between 2003 and 2004.

64 The circumstances of each valuation case will necessitate different approaches and methodologies in determining valuations under appeal. In the circumstances of these 48 appeals in my overall assessment of the facts it would be inappropriate to adhere to mathematical calculations and a significant element of common sense must prevail having regard to all the evidence before the Court.

65 The experts agreed that the potentiality of the land represents its greatest value. Therefore in determining the valuations I have given significant weight to the planning regime as at the base date of 2003 and 2004. Clearly from the analysis above the realisation of the potentiality of the land is significantly greater for the base date of 2004 and therefore appropriate adjustments must be made.

66 Therefore in my assessment I agree with the applicant’s evidence that the hypothetical question of what a willing purchaser would pay for a parcel or lot to erect a dwelling would require enquiry of the council as to the zoning /rezoning of the land and the value would be considered in the light of a reasonable timeframe of achieving consent for a dwelling. However, I do not accept the applicant’s evidence and submission that the dismissal of the Council in 2005 could have been foreseen by a prudent purchase and I have given no weight to this.

67 The experts conferred on a benchmarking exercise of the values from the east on the beachfront reserve, to the west. There was agreement for 2003, however, for 2004 in Mr Robertson’s opinion, the benchmarking should commence with the lots on the western side of Lorna Street. Mr Longa is of the opinion that the lots on the western side of Lorna Street would have a value of 40% of those on the eastern beach side and if I adopt this for the sale of six lots in July 2004 for $2.5 million, three on the western (lots 7-9) and three on the eastern side of Lorna Street a mathematical exercise could be carried out. This would provide figures of about $240,000 for each of the three western lots and $600,000 for each of the beachfront /reserve lots. If a relevant consideration was then to adopt the sale of lots 3 to 5 on the western side of Lorna street in 2000 that commanded an 80% higher price per lot than when single lots were purchased, this would then give a per lot value of $135,000 for lots 7 to 9. Although clearly there are many factors that need to be considered including as pointed out by Mr Longa the sales in 2000 were to related parties and therefore are not reliable.

68 It is interesting only to note, and I do not rely on the above exercise, that in my adjusted values for the western side of Lorna Street, including lots 10-18in the same section as the above lots, I have determined a value $120,000.for the base date year of 2004.

69 However, it has often been said that valuation is not a science and nor should it purport to be. Similarly valuation is not an algebraic exercise as it is not “the mathematical art of reasoning about quantitative relations (algebra as defined in the Macquarie dictionary). Care must be exercised in the quest for comparability to ensure that where there are numerous variables/factors with significant percentage adjustments that an illusion of accuracy is not created. Numerous authorities in valuation case law emphasize caution in mathematical exercise.

70 I also accept as a relevant consideration, the applicant’s evidence that approval even for uses permissible in the 2(f) zone seemed remote as at the base dates. As at the base dates there were a number of development applications refused and a consistent reason given by the council was that development is premature because comprehensive planning and infrastructure for the whole estate is required. The then State Department, Planning NSW, was categorically clear when it stated in Exhibit G of May 2003 that: “the lodgement of development applications without basic servicing is contrary to the Object of the Environmental Planning & Assessment Act “. The Department also stated it was aware of the developments to the north and south but circumstances of approval “are significantly different … both developments were on land consistent with the identified direction for future growth”. I agree with Mr Robertson a prudent purchase would have doubt about any approval for development on the land in the short term in the light of these refusals. This in my assessment was particularly potent in 2003 whereas in 2004 the potential of the land through the re-zoning process could be confidently anticipated in the short term.

71 I have concluded on balance that I should accept Mr Robertson’s valuations for 2003 with the noticeable exception of his discount for an ’in line’ sale. This provides a total valuation for all the parcels of land under appeal of about $3 million.

72 For the 2004 determination of the valuations I have considered all the evidence, including the more recent sales and the positive steps taken by council to rezone the land to realise its potentiality of its highest and best use for single dwellings. This has led me to conclude that Mr Robertson’s valuations for the various parcels in 2004 should be increased and I have factored in a multiplier of three to reflect the significantly greater certainty of an imminent rezoning following the March 2004 resolution.. There was also a general rise in the market informed by sales in the adjacent Salt and Casuarina. Once again on the material before me I am not persuaded that an ‘in line discount’ should be applied for base year of 2004 either.

73 In my overall assessment of the valuations as at the base date of 2004 having regard to all the evidence I have determined the valuations for each parcel with a total of about $10 million. I have given significant weight to the imminence and certainty of the realisation of the potential of the land through the rezoning reactivated in March 2004.

74 Mr Robertson’s valuations for 2004 do not reflect the changed circumstances of the certainty of the rezoning. On the one hand it was submitted on behalf of the appellant that a prudent purchaser in 2003 could not have foreseen council’s resolution to progress the LEP and yet on the other hand Mr Robertson’s valuations do not make adequate allowance for this factor in 2004.

75 Clearly the actual making of the plan will yield significant increases in the value of all the properties in Seaside City however this is not a relevant factor for my determination of the valuations as at the base date of 2004. Furthermore, I would have attributed greater weight to the draft Amendment No. 3 if this did not defer to other documents, (whether that be called a Masterplan, a DCP or the like) which were not in the public domain. As such a prudent purchaser would still consider there to be an element of risk because the LEP provides that development could not be consented to until such time as the Council approves such a document.

76 In accordance with my findings above a separate order for each parcel is made. Hereunder is a summary of my determination and adjustments grouped for the base dates of 2003 and 2004.

77 In summary the orders have the effect of upholding the 26 appeals against the 2003 base date valuations and upholding the 22 appeals in respect of the 2004 base date valuations. The orders show a determination of the necessary adjustment to the valuation for each parcel based on the findings above in this judgment.

78 With respect to the exhibits the orders are that they are returned to the parties with the exception of Exhibits 1, 14, 15, S, T and DD.

Appeals for Base Date in 2003
Appeal No.	Land Description	Property Ref.	Section No	VG-LV$	Determination Adjusted Value
05/30841	14, 15/1/14895	3001327	1	87,500	70,000
05/30842	4,5,6/1/14896	3001328	1	112,000	105,000
05/30843	10-18/2/14895	3001329	2	648,000	180,000
05/30845	19-27/2/14895	3001330	2	432,000	108,000
05/30847	28-36/2/14895	3001331	2	432,000	108,000
05/30849	1-9/3/14895	3001332	3	432,000	108,000
05/30851	10-18/3/14895	3001333	3	432,000	108,000
05/30853	19-27/3/14895	3001334	3	378,000	180,000
05/30855	28-36/3/14895	3001335	3	378,000	180,000
05/30857	1-9/4/14895, 1971//133919	3001336	4	546,000	135,000 100,000
05/30859	10-18/4/14895	3001337	4	270,000	135,000
05/30861	1-8/5/14895	3001338	5	480,000	280,000
05/30863	9-12/5/14895	3001341	5	480,000	140,000
05/30865	1-4/6/14895	3001342	6	288,000	80,000
05/30867	9-13/6/14895	3001343	6	300,000	100,000
05/30869	16/6/14895	3001344	6	108,000	20,000
05/30871	17-24/6/14895	3001345	6	408,000	96,000
05/30873	25-32/6/14895	3001346	6	384,000	96,000
05/30875	1-58/7/14985	3001347	7	384,000	96,000
05/30877	9-16/7/14895	3001349	7	408,000	96,000
05/30879	17/7/14895	3001350	7	180,000	20,000
05/30881	18/7/14895	3001351	7	156,000	20,000
05/30883	19-24/7/14895	3001352	7	396,000	120,000
05/30884	25-32/14895	3001354	7	336,000	160,000
05/30885	1-8/8/14895	3001355	8	288,000	120,000
05/30887	9-16/8/14895	3001356	8	306,000	120,000

Appeals for Base Date in 2004
Appeal No.	Land Description	Property Ref.	Section No	VG-LV$	Determination Adjusted Value
05/30844	10-18/2/14895	3001329	2	3,245,000	1,080,000
05/30846	19-27/2/14895	3001330	2	1,450,000	540,000
05/30848	28-36/2/14895	3001331	2	1,450,000	540,000
05/30850	1-9/3/14895	3001332	3	1,000,000	405,000
05/30852	10-18/3/14895	3001333	3	1,000,000	405,000
05/30854	19-27/3/14895	3001334	3	1,100,000	540,000
05/30856	28-36/3/14895	3001335	3	1,100,000	540,000
05/30858	1-9/4/14895, 1971//133919	3001336	4	1,150,000	540,000 120,000
05/30860	10-18/4/14895	3001337	4	900,000	540,000
05/30862	1-4/6/14895	3001342	6	1,800,000	480,000
05/30864	9-13/6/14895	3001343	6	2,400,000	600,000
05/30866	16/6/14895	3001344	6	845,000	120,000
05/30868	17-24/6/14895	3001345	6	1,300,000	480,000
05/30870	25-32/6/14895	3001346	6	1,300,000	480,000
05/30872	1-8/7/14985	3001347	7	900,000	360,000
05/30874	9-16/7/14895	3001349	7	950,000	360,000
05/30876	17/7/14895	3001350	7	250,000	60,000
05/30878	18/7/14895	3001351	7	225,000	60,000
05/30880	19-24/7/14895	3001352	7	850,000	360,000
05/30882	25-32/7/14895	3001354	7	1,000,000	480,000
05/30886	1-8/8/14895	3001355	8	1,000,000	480,000
05/30888	9-16/8/14895	3001356	8	1,050,000	480,000

___________________

J S Murrell
Commissioner of the Court
Ljr/as

Please note Tables 1 and 2 and Figures 1-4 follow

Typographical errors and paragraph 30 corrected.

25/01/2007	-	Coversheet has been amended to delete duplicate Matter Numbers. Tables and Images were re-formated so that the document fits onto the page. - Paragraph(s) coverheetimages and tables
29/01/2007	-	Typographical error - year changed to 2004 - Paragraph(s) Para 1 Line 3