Sunfish Investments Pty Ltd v Chief Executive, Department of Lands

[1996] QLC 127

[1996] QLC 127

 

 

LAND COURT

BRISBANE

18 September 1996

Re:  An appeal against a valuation
  of the Chief Executive, Department of Lands
  Gladstone City Council    (AV95-320)

Sunfish Investments Pty Ltd
  v.
  Chief Executive, Department of Lands

(heard in Gladstone)

Introduction

Sunfish Investments Pty Ltd (the “appellant”) is the registered proprietor of Lot 1 on RP609259, Parish of Gladstone, on the edge of the central business district of Gladstone.
           The respondent Chief Executive determined the unimproved value of the subject land to be $52,000 as at 1 January 1995.  The appellant objected against that valuation.  The objection was disallowed and the appellant appealed to the Land Court.  The notice of appeal nominated a valuation of $43,500.
           The grounds of appeal, annexed to the notice of appeal, described the property and developments in its vicinity.  Although the grounds were more in the nature of submissions than itemised grounds of appeal, they were generally to the effect that increasing traffic with its noise and diesel pollution has greatly depreciated the amenity of the area in which the subject land is located and will continue to do so.  Accordingly, the appellant contended, there should not be any increase in valuation until such time as heavy traffic is diverted in accordance with the recommendation of the Central Area Planning Study prepared in 1984 by Stenders Wright and Partners Pty Ltd (Architects, Urban Designers and Town Planners) and Eppell Consulting Pty Ltd (Transportation Consultants) (the “1984 Study”).
           In a letter dated 22 January 1996, the Department of Lands advised the appellant that the valuation issued on 1 January 1995 was incorrect.  The letter continued:

“The subject property in the past was valued as Residential, where it should have been valued as Commercial which is more in line with the zoning and predominant usage of the property.

The value will be amended to $68000 from $52000 as at 1 January 1995, and the State will lead evidence to this effect at the forthcoming hearing on 7 February 1996.”

The appellant was represented by Mr GN Ackerman, a director of the appellant.  The respondent was represented by Mr B O’Connor and valuation evidence was given by Mr RG Hewitt a registered valuer with the Department of Lands (now Department of Natural Resources).
The subject land
           The subject land is situated at the junction of Flinders Parade and Oaka Lane, some 450 metres north-east of the Gladstone City Mall.  Flinders Parade is a full-width bitumen sealed carriageway with single opposing lanes.  Oaka Lane is a half-width one-way bitumen sealed carriageway.
           The land is zoned Comprehensive Development and is used for commercial and residential purposes, with a restaurant and shop at ground level and a residence above.
           The frontage of the subject land is mainly to Flinders Parade which, at that stage, extends along the waterfront of Auckland Inlet.  The block is a moderately sloping inside allotment rising from the road frontage to the rear with very good views over Auckland Inlet and the Gladstone Marina.  Electricity, water, sewerage and telephone services are connected to the land. 
           The block has an area of 1,383 square metres.
           The uses permitted under the Comprehensive Development Zoning are subject to conditions.  The uses include residential dwelling and specifically listed business operations where the use is to be conducted in an existing premises and the total area of the premises will not be increased.  Other uses are permitted by consent.  The comprehensive zoning has allowed the Council to adhere to the  1984 Study’s recommendations for use of the precinct.
           The history of commercial use of the subject land shows that its various uses have been for tourist related activities.  The land was improved in 1968 - 69 with a building specifically designed to provide showers, food and carparking for tourists en route to Heron Island by way of the ferry from O’Connell Wharf, some 100 yards away.  That was the only business conducted within the precinct of the subject land.  There was a large residence above the business premises.  The facility was made obsolete by the introduction of helicopter transit to Heron Island and the eventual construction of the Marina.  The property was subsequently used for a small restaurant and a bait and tackle shop.  The restaurant was vacant from February 1994 until April 1995 when it was leased at a rent about 30% lower than in February 1994.
           According to the appellant, in the period from 1969 to 1996, only three of the forty properties in the precinct have been used for uses other than residential uses.  Of those three, one was developed as an architect’s premises (and has since returned to residential use) and the other two small properties were granted business uses by a photographer and as a craft centre.  Those uses, the appellant contended, are both tourist-related.  The appellant also noted that approval was given in September 1994 for a multi-unit residential building in Flinders Parade, some 57 metres from the subject property.
           The appellant’s written submission stated:

“As owners of the subject property for 23 years, it is our experience that the precinct is not commercial.  Its overwhelming usage is residential with a smattering of tourist related activities only, and even these will be put under pressure ...”

The appellant drew attention to the 1984 Study, which specified the area in which the subject land is located as Precinct A.  The area was described as forming “an activity focus and feature” and providing an opportunity “to develop integrated mix of marine/tourist/recreational facilities, centred on Auckland Creek water-front”.  Residential uses are “best located to east of waterfront sector of Flinders Parade:  unit development can take advantage of the hill”.  The 1984 Study suggested:

“Heavy industrial traffic should be prevented from using this section of Flinders Parade and Lord Street east of Goondoon Street.  Accent in this precinct should be on pedestrian movement.”  (page 5)

The problems arising from vehicular traffic servicing the Auckland Point Wharf and storage facilities were dealt with in some detail.  The 1984 Study contained suggestions for staged developments to segregate port related traffic from other traffic, so that eventually the movement of heavy vehicles through the waterfront area around the subject land would be restricted.  The appellant argued that, for many years, the recommendation had buoyed the perception of property values in the Precinct.
           In late 1994, the number of heavy industrial vehicles servicing the port and using Flinders Parade began to increase noticeably.  That usage was apparently consistent with an agreement between Gladstone City Council and the Gladstone Port Authority dated 7 March 1991.  The provisions of that agreement were summarised in a letter dated 24 January 1995 from the Chief Executive Officer of the Council to Mr G Ackerman, a director of the appellant (Exhibit 4C). According to that letter, the provisions of the agreement dealing with the use of Flinders Parade by heavy vehicles were as follows:

“1.       Council will change its then current policy to enable heavy industrial vehicles to use Lord Street and Flinders Parade as an access route to the Auckland Point Wharf area and will design and construct Lord Street and Flinders Parade to enable such use to a specified standard.

2.        The Gladstone Port Authority  as far as possible will use its influence to ensure that such vehicles are loaded and/or covered in such a manner that no dust is caused along the route.

3.        The parties acknowledge that the number of future heavy vehicle movements along Flinders Parade may exceed those specified in 1. as part of the specified standard namely, 750 movements per day, in which case the parties acknowledge that the Council will require the development of an additional access route to the Auckland Point Port area.”

The appellant noted that the subject property is only 14.5 metres from the road centre and 7.5 metres from the Port exit lane. According to the appellant, the vibration, noise and air pollution by day (and at night if a ship is loading) has “already devastated the amenity of the property and will worsen with the traffic increase planned”.  The increase in movements of very heavy vehicular traffic along Flinders Parade “has clearly depressed the value of the subject property”.  The appellant further submitted that it was possible that purchasers of other properties referred to in the submission were unaware of the existence and implications of the agreement between the Council and Gladstone Port Authority when they purchased their land.
           The appellant also contended that the rapid increase in heavy traffic has been responsible for the shop being without a tenant since January 1992 and the restaurant premises being vacant between February 1994 and April 1995.  As noted earlier, rental for the restaurant premises was reduced by 30% on that paid up to February 1994.
           Before considering the evidence to assist in determining the unimproved value of the land, it is necessary to decide the basis on which the land should be valued.  The respondent contends that it should be valued as land for commercial purposes and the appellant argues that it should be valued as residential land.
Section 17(1) of the Valuation of Land Act 1944 clearly provides that, in making a valuation of the unimproved value of land “exclusively used for purposes of a single dwelling house”, any enhancement in the value of the land because it has potential use for subdivisional or other purposes shall be disregarded. There was no suggestion that the land is “exclusively used” for the purpose of a single dwelling house, and the history of its use shows that at the relevant time it was used (or was able to be used) for a mixture of residential and commercial purposes. The land has to be valued on the basis of its highest and best use. I find that the land should be valued having regard to its zoning and actual use, rather than as residential land.
           The particular disabilities emphasised by the appellant go to the value of the land rather than its classification for this purpose.
Sales Evidence
           It has long been established by numerous court decisions that the best basis for the unimproved value of land is evidence of sales of vacant or lightly improved parcels of comparable land.  Such evidence was presented for each party.
           When considering the sales evidence, it should be noted that the respondent calculated the revised value of the subject land primarily on a linear meterage basis as follows:

20 metres effective frontage at $3,000   = $60,000
           plus extra depth of 12.5%                    = $ 7,500
           Total   = $67,500

Adopt:  $68,000 (an average of $49.17/m²)

The appellant tendered evidence in relation to three sales within the precinct which had taken place in August 1993.  Two of those sales were described as “anomalous”.
           In examining the properties zoned Comprehensive Development the appellant adopted three methods of comparison namely:
           (a)       area value or rate per square metre;
           (b)       street frontage value or rate per linear metre;
           (c)       unit density value or rate per unit that may be built on the property.
Sale A:  Lot 1 on RP607916, at 2 Goondoon Street, Gladstone, has an area of 410 square metres, a street frontage of 16.5 metres, and was improved by a residential dwelling.  The land and improvements were sold in August 1993 for $110,000.  On 19 April 1994, the owners applied for consent to use the premises as a shop. 
           The appellant described this sale as anomalous on the basis that the purchasers originally intended to continue the use of the land for residential purposes.  The appellant stated that agents at that time believed that the purchaser paid too much for the property and that its true value was around $70,000, which included a land content with a value of $20,000.
           The appellant analysed the sale as follows:
           (a)       value of land area was $48.78 per square metre
           (b)       frontage value was $1212.12 per linear metre;
           (c)       the property had no unit density value as it had an area of less than 600 square   metres.
           There are difficulties with this sale, particularly in the amount to be allocated to the value of improvements.  Mr Ackerman did not know whether the house was sold for removal or was demolished.  Although he had not relied on this sale, Mr Hewitt allowed $10,000 to $15,000 for the sale of the house to be removed and seemed to accept that the sale price reflected the market for such an improved property.  On that basis, the land value was about $95,000, giving an average value of about $232 per square metre and a frontage value of $5,757 per metre.  Both values are well above the values of other sale blocks being considered in this case, details of which are given below.  To some extent that may reflect the tendency of smaller blocks to have a higher value per unit area than large blocks of similar land.
           Given that the details of the sale were less rigorously analysed than for other sale properties, it can be accorded less weight than is given to the evidence of those other sales.
           Sale B (respondent’s Sale 1):  Lot 132 on CT843037, in Goondoon Street, has an area of 2,400 square metres.  It has frontages at Goondoon Street (31.24 metres) and Oaka Lane (28.835 metres).  It was sold as vacant land in late 1994 for $162,000.  The respondent assessed its unimproved value as at 1 January 1995 to be $142,000 (or 90% of the analysed unimproved value of the land).
           The respondent’s valuation of the land was calculated at the rate of $3,750/m for a 31.24 frontage plus extra depth of 16% and rear access of 5% to give a total figure of $141,751 (adopt $142,000, an average of $59 per square metre).
           The respondent relied on the sale of this land and described it as an easy sloping inside lot rising from Goondoon Street to Oaka Lane in the rear.  According to Mr Hewitt, the land is superior in contour and slightly superior in location, making it overall superior to the subject land.
           The appellant considers the sale to have been anomalous because it was subsequently discovered that the land was polluted and so was unfit for development.  Extensive excavation to move the polluted soil (up to a depth of 1.5 metres) and replace it with clean fill was required across the entire property.  The appellant contended that, with prior knowledge of the pollution problem, it is unlikely that the land would have sold for more than $100,000 (if at all).  Further, the appellant contended, if the pollution is totally removed and the land is restored to some degree the fact that it has been a polluted property will continue to depress its value in this precinct.
           On the basis that the land had a value of $100,000, the appellant calculated:
           (a)       land area value at $41.66 per square metre;
           (b)       street frontage value at $1,646 per metre;
           (c)       the precise unit density value would require a defined decision but, for this purpose,                  could be regarded as similar to Sale C (discussed below).
           Two observations should be made about the appellant’s submissions.  First, the analysis of $1,646 per metre street frontage was calculated by reference to the combined length of the street frontages to Goondoon Street (31.24 metres) and Oaka Lane (28.835 metres).  On those calculations, the figure should be $1,664 per metre, but nothing turns on that mathematical error. More important is the method of analysing the frontage value.  In that respect, I prefer the method of analysis adopted by Mr Hewitt.  If, however, the starting point was a land value of $100,000 and the value was analysed on the Goondoon Street frontage alone then, without the allowances for extra depth and rear access, the rate per metre would be $3,201, almost twice that suggested by the appellant.
           Second, the appellant’s attempt to have the sale discounted or disregarded is understandable.  The circumstances of the sale, however, were unusual.  Mr Hewitt’s evidence was that both the vendor (the State Government) and the purchaser were unaware of the contamination and that the Crown had removed the contamination at no cost to the purchaser.  In this case, the issue is not what a prudent, well informed purchaser would have paid for the block in its contaminated or remediated state.  Whatever subsequent events may have disclosed, there is no reason to doubt that the sale was an arm’s length market transaction in respect of land which both vendor and purchaser (mistakenly) thought was uncontaminated land.  For present purposes, it can be treated as a fair market sale of land comparable to the subject land.
           Sale C (see respondent’s Sale 3):  Lot 1 on RP607177 and Lot 10 and 11 on Plan G1424 have a total area of 2,333 square metres and a street frontage of 57.956 metres at 19-23 Flinders Parade.  The land comprises moderate to steep sloping inside lots rising from Flinders Parade to the rear.  It is comparable to the subject land in contour, view and position.  The subject land is located on the junction of Flinders Parade and Oaka Lane which creates parking problems.  In Mr Hewitt’s opinion, overall the sale land is slightly superior to the subject land. 
           The land was sold as vacant land in June 1994 for $110,000.  Subsequently, Council gave approval for a multi-unit residential building containing for 32 units.  The site is well suited for that purpose being unpolluted, reasonably easy to build on, and having a generous single street frontage allowing generous views of Auckland Creek and the Marina.  From the sale price, the appellant calculated:
           (a)       land area value at $47.15 per square metre;
           (b)       street frontage value at $1897.99 per linear metre;
           (c)       a unit density value of $3,437.50. 
           The appellant relied primarily on Sale C in support of a valuation of $43,500 for the subject land.  Weight was placed on the sale because, the appellant argued, the sale land was free from anomaly, is only 57 metres from the subject property along Flinders Parade, has a waterfront outlook, and has received consent for a multi-unit residential development (which approval indicates a land content component of $3,437.50 per unit).  Applying the rate per square metre, frontage value and unit density of Sale C to the subject land, the appellant calculated as follows:
           (a)       area value 1,382.7 square metres x $47.14       = $65,180
           (b)       frontage value 21.696 metres x $1,897   = $41,157
           (c)       unit density value  12 units x $3,437                 = $41,244.
The appellant sought to have that area value disregarded on the basis that comparisons of area valued can be misleading because the confinements of shape and access dictate how a site can be used. 
           The appellant submitted that, by comparison, the subject property is long and narrow, thus limiting an “interesting design”.  Access is particularly difficult because the frontage is truncated on the corner of Flinders Parade and Oaka Lane which is “one-way” into Flinders Parade.  The property is located across a natural watercourse extending from higher properties at its rear on Auckland Hill.  As a consequence, extensive drainage of the subject property has been required while the Sale C has no such problem.  Consequently, the appellant argues that the property should have an area value of about $41,000 when compared with Sale C land using the unit density and frontage value methods of calculation.

           Mr Ackerman did not know the circumstances of the sale.  Mr Hewitt’s evidence was that it was a not fair market transaction.  The land was not on the open market, but the vendor required funds urgently to meet a debt and sold the land to a personal friend.
           It was submitted for the respondent that the revised valuation of $68,000 was supported by sales of three properties near the subject land.  As noted earlier, sales of two of those properties were also relied on by the appellant, namely the Sales B and C land.
           Sale 1:  This was the same land as Sale B in the appellant’s list of sales, and has been discussed above.
           Sale 2:  Lot 3 on RP848993, a block zoned Special Business with an area of 686 square metres (about half the area of the subject land) was sold in February 1995 for $47,500.  The applied value was $43,000, or 93% of the analysed unimproved value of $46,000.
           The value of the sale land was calculated as follows:

18.53 metre frontage at $3,000/m
           plus, corner of 10%, less easement allowance of 17.5% and shallow depth of 12%,
           less fill of $1,500 = $43,250

adopt:  $43,000 (an average of $62.68/m²)

The land is generally level to low lying and is located on the corner of Lord Street and Central Lane.  The sale land is superior in contour and slightly superior in position to the subject land, however it is low lying and subject to flooding and the subject land has superior views.  Overall it was described as comparable to the subject land.
           The sale occurred not long after the relevant date of valuation and, in the respondent’s submission, provides good support to the values applied.  Although Mr Ackerman considered that the land is not comparable to the subject, I am satisfied that it is relevant to this case.
           Sale 3:  Although this was the same land as Sale C in the appellant’s list of sales, the respondent relied on a later sale to determine the unimproved value of the subject land.  Lot 1 on RP607177 and Lots 110 and 111 on Plans G15341, a block of land zoned Comprehensive Development with an area of 2,332 square metres was sold in March 1995 for $255,000.  The analysed unimproved value was $220,000 and the applied value was $191,000 (or 87%).
           The sale occurred not long after the date of valuation and, the respondent submitted, provided good support to the value applied.
           The value was calculated as follows:

34.5 metres frontage at $3,400/m
           less, shallow depth of 10%. ($105,570)
           plus 23.1 metres frontage at $3,400/m plus extra depth of 8% ($84,823)
           total = $190,393.

adopt:  $191,000 (an average of $81.90/m²)

Two of the sales on which the respondent relied occurred after the relevant date of valuation.  In the case of Sale 2  the period was some six weeks after the relevant date and in the case of Sale 3, it was some 10 weeks after the relevant date.
           For annual valuation purposes, the best sales evidence concerns sales of comparable blocks of unimproved land which occurred within a year before the date of valuation.  Some support for the use of subsequent sales can be drawn from the following passage from Williams J in McCathie v Federal Commissioner of Taxation:

"Values must be calculated in the light of circumstances which existed on the material date, ... but subsequent events can be taken into account in order to determine the proper weight to attach to such circumstances. Subsequent sales are just as admissible in evidence as prior sales, provided that in all the circumstances they are comparable. If between the material date and the date of the subsequent sale supervening events occur which alter the condition previously existing, the subsequent sales would not be comparable and would be useless." ((1944) 69 CLR 1, at 16).

In GA Nichol v the Valuer-General (1961) 28 QCLLR 161 the Land Appeal Court rejected a submission that sales after the effective date of valuation should be ignored. Having quoted the dicta of Williams J in McCathie, the Court noted that his Honour had stated the rationale for the approach as being the tendency of courts "to admit evidence of any events prior to the date of the trial which will throw any real light on the issues" (69 CLR at 16 and authorities cited there). In the opinion of the Land Appeal Court, "there appears to be no sound reason why a Court or any of the parties should be denied the assistance of sales of comparable land occurring after the effective date, provided market conditions or other relevant conditions have not materially altered" (at 292).
           The statement by Williams J has been applied by other courts.  In Federal Commissioner of Taxation v Harris (1980) 30 ALR 10, Bowen CJ stated that, if evidence of subsequent events is available which shows that the possibility of an event occurring has become a reality, it is proper for the Court to have regard to the actual events when assessing the position as it was at the relevant date (at 18, see also Deane J at 19). In the same case, Fisher J referred to the limitation on the principle stated by Williams J, namely that subsequent events can only be used to determine the weight to attach to circumstances which existed at the relevant date. The subsequent event cannot create an expectation which was not in existence at the relevant date (at 25 quoting from John Martin (Elizabeth) Limited v Commissioner of Land Tax (1965) SASR 217, at 225).
           In the present case this Court can only have regard to later sales evidence to confirm the circumstances which applied at the relevant valuation date.  In some annual valuation cases, the date of sale may  be so far after the relevant date of valuation, and so close to the next date of valuation, that  evidence about the sale should be disregarded or given very little weight.  In Eastwell Pty Ltd v The Valuer-General (1987) 11 QLCR 169, the appellant submitted that only one sale presented by the Valuer-General in that case could be used as a basis for valuation because the other sale was an after date sale. The Court considered that the sale in issue had occurred "a mere 26 days after the relevant date" and there was no suggestion that there was any change in the market place in "that short space of time". It held that the valuer quite properly had had regard to the later sale (see (1987) 11 QLCR at 173, 176-177).
           The preceding discussion of the law relating to after date sales has recently been confirmed by the Land Appeal Court in Scougall v Chief Executive, Department of Natural Resources (AV93-119, AV94-364, unreported decision dated 13 September 1996).
           In light of the authorities just mentioned, and the reasonable proximity of the dates of sale and the relevant valuation date, there is no reason to ignore the evidence about Sales 2 and 3.
Conclusion
           The unimproved value of the subject land as at the previous date of valuation was $43,500, the amount contended for by the appellant in these proceedings.  The increase to $52,000 was 19.54%, and the increase to $68,000 was a rise of 56.32% in 12 months.

The appellant submitted that:
           (a)       the respondent’s change in approach to valuation is not in line with the zoning and   predominant use of the subject land;  and
           (b)       the valuation of the property should remain at $43,500 until such time as the   depreciation incidence of heavy vehicular traffic is resolved.
The first of those submissions was dealt with earlier in these reasons for decision. Clearly the land is not land to which section 17(1) of the Valuation of Land Act 1944 applies. It is appropriate to value the land having regard to its highest and best use by reference to such things as the zoning and actual use.
           The second submission does not, on its own, resolve the case in favour of the appellant.  The sales evidence shows that such a figure is out of line with the market at that time.  The most that can be said is that if: 
           (a)       the agreement concerning heavy traffic along Flinders Parade was not known to   purchasers of  land;  and
           (b)       it would have influenced the amount which purchasers would have paid for the   comparable blocks,
then the valuation of the subject land should be reduced accordingly.  When the submission is recast in that form it is clear that a good deal of speculation is involved.  Against that it must be said that, even if prudent purchasers in 1994 and 1995 were unaware of the agreement, they ought to have been aware of the increasing traffic levels and hence would have appreciated the potential impact of that traffic on the use and enjoyment of the land.
           In light of those conclusions and the findings with respect to the sales evidence, this case falls to be resolved primarily by reference to Sales B (Sale 1), 2, and 3, the evidence concerning the effect of traffic on the use of parts of the subject site for business purposes and the physical features of the land (particularly the route of a natural watercourse across the land).
           As will be apparent from the discussion of sale properties, both parties adopted the linear frontage method of determining the value of the subject land and sale blocks.  The appellant used that as one of three methods of valuation and the respondent chose it as his sole method of valuation.  Mr O’Connor submitted that that was the appropriate method of valuation for this case. He relied on the decision of a former President of the Land Court, Mr Smith, in SelbourneChambers Pty Ltd v Valuer-General (1984-85) 10 QLCR 1. That case involved the 1979 valuation of a small block of Commercial A zoned land in the central business district of Brisbane with a frontage to Adelaide Street. The Court was critical of the attempts to determine the unimproved value of the land by the capitalisation of rent method or the rate per square metre method. The Court referred to passages in text books, including the 2nd edition of Rost and Collins Land Valuation and Compensation in Australia, discussing the appropriate methods of valuing commercial land and the use and relative value of depth tables.  The overall impression created by those references was that textbook writers had not come out in favour of the unit area value to the total exclusion or condemnation of the street frontage unit value.  “Each method has its difficulties and problems and there are many factors internal and external which should be duly weighed when valuing a parcel of commercial land” (at 8).  Accordingly, the consensus of textbook writers at that time was that the valuer must consider each property having regard to its individual characteristics and with due consideration to many factors such as frontage, depth, corner influence, side or rear access, shape, street width, and maximum building coverage (at 9).
           The general propositions for which that case stands are not a ringing endorsement of the street frontage unit value as the superior method of valuing commercial lands.  Because the Court there placed weight on the view of textbook writers, it is appropriate to quote the following passage from the later, 3rd edition of Land Valuation and Compensation in Australia:

“Although width of street frontage and depth of sites must be taken into consideration, they are no longer dominant measurements of value and have been replaced as such by a value per square metre”  (at 133).

The frontage method alone may not be an accurate guide to the comparative values of lots with significantly different shapes, exposure at street level, availability of access and the range of other factors mentioned above.  As the Court said in the Selbourne Chambers case, there are many factors to be considered.
           The respondent calculated the value of the subject land with a frontage value of $3,000 per metre to which an allowance of 12% for extra depth was made.  The $68,000 averaged at just over $49 per square metre.  The analysis of Sales B(1), 2 and 3 shows:
           (a)       values of $3,000, $3,400 and $3,750 per metre of frontage (with allowances for   factors such as depth);  and
           (b)       average values of $62.68, $81.90 and $59 per square metre.
           Allowing that the rate per square metre will also be influenced by various factors including the size, shape and contours of each blocks, those figures are consistent with the amount contended for by the respondent.  In my opinion, however, evidence concerning the contours of the subject land and the impact of the effects of traffic on some uses of the land at the relevant date of valuation warrant a reduction from the total amount of $68,000 of about ten percent (say $7,000).
In this case neither the disputed valuation nor the appellant’s figure is appropriate. The respondent contends for a higher figure than that of the disputed valuation. Although Mr O’Connor noted that no new valuation of the subject land at $68,000 had been processed at the time of hearing (for reasons relating to the computerisation of the 1996 valuations) he submitted that this Court could find for such an amount in accordance with section 66 of Valuation of Land Act 1944. That section provides that, upon an appeal under section 55 of the Act, the Land Court may increase the amount of the valuation to the extent necessary in its opinion to determine the same correctly under, subject to, and in accordance with the Act. Mr O’Connor cited the decision of the Land Court in Bluepac Pty Ltd v Chief Executive, Department of Lands, V95-63, decision dated 31 August 1995 to support his submission. As the Court there noted, an appeal must be allowed in terms of section 66 in order that the valuation be determined correctly.
Order
           The appeal is allowed, the determination of the Chief Executive is set aside, and the unimproved value of the land as at 1 January 1995 is determined to be the higher amount of $61,000.

GJ NEATE
MEMBER