Brisbane City Council v Bortoli [2012] QLAC 8

[4] The land has an area of 845 square metres. It falls to the south-west corner. At the time of resumption it was developed with two Queenslander style timber houses, arranged as five flats, with an annual rent of $38,000 gross.

[5] Under City Plan 2000, the lots were in the Character Residential Area, and in a Demolition Control Precinct.

[6] Another lot, Lot 1 on RP882329, separated them from Newmarket Road, which intersects with Lutwyche Road to the north of the land. An easement, Easement A, was registered over Lot 1 in favour of the respondent. It included a covenant by the owner of Lot 1 to grant an easement of right of way in favour of Lots 100 and 101 on their redevelopment, for the purpose of vehicle access to Newmarket Road and (no doubt via Newmarket Road) Lutwyche Road.

[7] The next street to the south of the land is Taylor St. The block of land between Taylor St and Newmarket Rd on the western side of Lutwyche Rd was mostly developed for non-residential uses. To the south of the land, there was a service station at the Taylor St intersection, to the north of which was a McDonald's Restaurant. Together, these took up more than half of the block's frontage to Lutwyche Rd[1].

[8] Lot 1, to the north of the land, was occupied by a lighting outlet (the site was sometimes also referred to as the Dare Gallery, or Bennie's). The remaining two small allotments fronting this part of Lutwyche Rd were the sites of former residences (though it appeared that one had been developed with a shop[2]).

[9] It was common ground at the hearing in the Land Court that, on redevelopment of the land, direct access to Lutwyche Road would not be permitted, and that access would be necessary across Lot 1 to Newmarket Road.

[10] Experts engaged by the parties for the Land Court hearing included town planners, traffic engineers and valuers. The experts engaged by the parties in these areas produced joint reports, in addition to their individual reports. The town planners agreed that, as at December 2006, it was likely that the respondent, as the authority administering City Plan 2000, would have approved a commercial or a mixed commercial/residential redevelopment of the lots. They considered that the theoretical development yield could be restricted by practical issues associated with establishing access via the easement; and a "design exercise" was required to determine the land's development potential.

[11] The valuers valued the land by reference to sales evidence. The Land Court member rejected the sales evidence relied upon by Mr Jorgensen, the valuer called by the appellant. He accepted the respondent's valuation, and determined compensation accordingly.

[12] The Land Court member's reasons record matters upon which the valuers agreed. He noted that the traffic engineers had diverging views about the implementation of access by way of the easement, and about parking arrangements for a redevelopment of the land. He summarised the evidence relating to the sales relied upon by each of the valuers, including his comments on those sales.

[13] The learned member noted that four redevelopment proposals were identified, to accommodate the practical difficulties associated with the redevelopment of the land. Those proposals were not shown to be economically feasible. Nevertheless, the learned member accepted that the land had the potential for a mixed use commercial development, and could be related to the sales evidence on that basis.

[14] The land had been listed for sale prior to the resumption (between December 2004 and May 2006) at a price of $670,000. However, the learned member did not accept that that was indicative of the land's value, relying instead on the comparison with the sales evidence.

[15] The Land Court member accepted the valuation of Mr Johnston, the valuer called by the appellant, for the land, at $1,050,000, and awarded compensation accordingly.

[16] For the appellant, it was submitted that in the circumstances of the case, it was necessary to make "a specific finding as to the intensity and timing of any proposed redevelopment as the highest and best use"; and "that the court was required to work out generally what would be a feasible and economical development". None of the development options identified in the case was feasible and economical; nor was there evidence as to how or when redevelopment of land could be effected economically. It was therefore submitted that the correct conclusion was that of Mr Jorgensen, that the highest and best use of land was its present use (residential flats).

[17] In support of its submission, the appellant relied on the following passage from the judgment of Kitto J in Turner v Minister of Public Instruction:[3]

"It all comes back to the one point: at the date of resumption the land was simply incapable of immediate sale in subdivision, and it would necessarily remain incapable of sale in subdivision until time, trouble and expense had been laid out upon it; and no one, present owner or incoming owner, is likely to be so completely unbusinesslike as to make these outlays unless he believes that he can reasonably count on getting from the subdivision sales an amount which will exceed the present value of the land by such a sum as will make it all worth his while."

[18] For the respondent it was submitted that the Land Court member had determined that the highest and best use of the land was to hold it for redevelopment for a mixed use commercial redevelopment, reflecting its "near term" redevelopment potential. It was submitted that that was sufficient to support the determination of compensation.

[19] The sales evidence relied upon by the Land Court for the determination of compensation comprised that referred to as Mr Johnston's Sales 1, 2 and 3. The appellant submitted that the Land Court erred in relying on this sales evidence, because these sales occurred six months after the acquisition date; because there were significant changes in the future planning for the area between the date of resumption and when these sales occurred; and because the method used to determine compensation in reliance on these sales was not valid. Further, it was submitted that the Land Court failed to compare significant characteristics of the land the subject of the sales, with the characteristics of the respondent's land. Particular reference was made to the constraints associated with access.

[20] The respondent controverted these submissions. It referred to authorities (Melwood Units Pty Ltd v Commissioner of Main Roads[4] (Melwood Units), and Leichhardt Municipal Council v Seatainer Terminals Pty Ltd[5] (Leichhardt)) in support of its submission that sales at dates different to the relevant date (including subsequent sales) may be relied upon, as may sales of properties which are in some ways different from the land to be valued. The respondent's submissions identified a number of features which, it was submitted, the Land Court took into account in seeking to apply the sales evidence to determine the value of the respondent's land. In particular, the respondent submitted that the member had dealt with access in his reasons for judgment, and did not err.

[21] It is convenient to commence with the appellant's challenge to the use of evidence of sales subsequent to the resumption. Melwood Units[6] demonstrates that it is not an error of law to determine the value of land at a particular date, by reference to subsequent sales. Nevertheless, account must be taken of changes affecting the market between the resumption date, and the date of the sale. This is recognised in the passage from Leichhardt, relied upon by the respondent. It is as follows:

"...often evidence is available of sales of very similar land close in point of time to the date of valuation. However, probably more often, the lands the subject of the sales relied upon are in some way different from the land to be valued, giving the latter land a higher or lower value than that to be deduced from the sales. The times of the sales in relation to the date of valuation may also have to be considered in light of general movements in land prices. The need to make adjustments to values deduced from sales in order to arrive at the true valuation of the land to be valued does not preclude the court which has the task of valuing the land from relying upon the sales as comparable in the relevant sense, nor from the making by the court or by valuers of adjustments which may be nothing more than the best guess that can be made."[7]

[22] Plainly there is no error in law in determining the value of land at a particular date, by reference to subsequent sales. As is apparent from the passage just quoted, the use of such sales must take into account intervening market movement. It is clear that that occurred; indeed, another of the appellant's grounds (ground 5) takes issue with the manner in which that was done. However, it cannot be correct to say that reliance on subsequent sales of itself amounted to error.

[23] The appellant's submissions placed some weight on community consultation directed to changes to the planning regime, in 2006 and 2007. These submissions sought to demonstrate that the position was different by mid 2007, the time of the sales.

[24] A press release of 14 August 2006 included an announcement by the Lord Mayor that over the next 18 months, specific neighbourhood plans would be developed across Brisbane. One neighbourhood was the Lutwyche Road corridor, from Herston to Kedron (which includes the land, and the land the subject of Sales 1, 2 and 3). The press release stated that key issues for this neighbourhood included "land use changes to accommodate major infrastructure projects such as the North-South Bypass Tunnel, as well as the mix of residential and business areas along the growth corridor."

[25] Since the land was resumed to accommodate the North-South Bypass Tunnel Project, the planning changes foreshadowed to accommodate it should be ignored[8]. That, however, is not true of the statement about the changes to accommodate the mix of residential and business areas along the growth corridor.

[26] A further press release of 19 March 2007 announced a Neighbourhood Planning Workshop to take place on 26 March 2007. The press release stated that the Workshop will help "residents and Council explore how new development along the Lutwyche Road Corridor might look ... ".

[27] The Meeting Summary from this meeting recorded, as a planning intent for Windsor East (which would appear to include the land), the "[r]euse/rezoning of existing MP4 and GI lands to promote broad mix of commercial uses". It also included, as a planning intent, the promotion of employment generating commercial land uses in the southern portion of the Lutwyche Road corridor close to the CBD, relevant to the sales.

[28] In September 2007, a draft neighbourhood plan was produced for the Lutwyche Road corridor. The land was included in the Corridor Mixed Use Sub-precinct. The intent for that sub-precinct included a mix of commercial uses on land fronting Lutwyche Road with office and/or residential uses in the upper storeys of buildings. It would appear from the precinct plan that the land the subject of Sales 1, 2 and 3 was identified as suitable for up to 90 per cent non-residential development.

[29] In the period of approximately six months from the date of resumption to the time when Sales 1, 2 and 3 occurred, the consultation process announced in August 2006 had advanced somewhat. However, neither at the time of the resumption, nor at the time of the sales, was the land shown as being treated in a materially different way from the land the subject of Sales 1, 2 and 3. At the time of the resumption, the press release of 14 August 2006 was likely to have given rise to an expectation of a change in planned land use, to accommodate a mix of residential and business areas. It is not hard to see that, for the land, the expectation was likely to have focused on commercial development, since the majority of the development on the block which the land formed part, where it fronted Lutwyche Road, was for commercial uses.

[30] The history of planning-related consultation in this period does not demonstrate a significant difference between the anticipated planning for the land at the time of the resumption, and the anticipated planning for the land the subject of Sales 1, 2 and 3 at the time of those sales. The Land Court member was not, by reason of the history of discussions and announcements relating to future planning, in error in relying on them to determine the value of the land at the date of the resumption.

[31] In using Sales 1, 2 and 3, which occurred post-resumption, to derive a value for the land in December 2006, Mr Johnston relied upon a graph based on some sales at Woolloongabba. The Land Court accepted that the graph, although imperfect, was sufficiently valid and reliable to be used for this purpose. The appellant submitted that the Land Court member erred in doing so, because the sales used to produce it were selected from a larger body of sales, and no rational basis was shown for the selection. The respondent submitted that the Land Court's determination did not err in this respect.

[32] The rising market between December 2006 and mid 2007 had to be taken into account in determining the value of the land at the earlier date. As has been mentioned, the Land Court member, notwithstanding concern about some of the sales omitted, was prepared to accept the use made by Mr Johnston of it. It was a factor in working from Sales 1, 2 and 3, to the value Mr Johnston adopted for the land.

[33] The graph produced by Mr Johnston was based on five sales. They occurred between June 2006 and November 2007. No substantial attempt was made to demonstrate that particular sales should have been included in the graph; and that if that had occurred, the result would have been materially different, particularly for the critical period between December 2006 and mid 2007.

[34] One of the omitted sales which occurred in this period, at 8 Gillingham Street on 22 June 2007, showed a substantially lower analysed rate than the two sales included for this period. The other sale which occurred at about this time, 3 Gillingham Street, also showed a lower analysed rate than the two sales which were included. The sale included at the beginning of the period, 7-9 Gillingham Street on 1 December 2006, showed an analysed rate lower than the included sale at 84 O'Keefe Street on 22 November 2006. The next excluded sale, 102 O'Keefe Street on 4 December 2006 was also slightly lower than the included sale of 84 O'Keefe Street. The only other omission from this period was a sale (92-94 O'Keefe Street on 20 March 2007) which showed an analysed rate substantially higher than any of the other analysed rates from about this time.

[35] On balance, reference to the other sales which occurred in the relevant period does not demonstrate that Mr Johnston's approach is likely to have produced an erroneous result.

[36] It was said that the inclusion of more sales may have failed to demonstrate a trend. However, it was common ground that the market was moving upward. While not entirely consistent, the analysed rates demonstrate a generally upward movement of the market over the relevant period. Notwithstanding its flaws, Mr Johnston's graph provides the best indication of market movement which was available to the learned Member between December 2006 and mid 2007.

[37] It is of some assistance to put this controversy in its legal context, By s 20(2) of the Acquisition of Land Act 1967 (Qld) (AL Act), the Land Court was required to determine the value of the respondent's land on the date when it was acquired under that Act. The way in which this is to be done has been explained in Spencer v Commonwealth[9] (Spencer's Case). Broadly stated, the question is what amount a man, desiring to buy the land on the relevant date, would have paid to a vendor willing, but not desirous, to sell; assuming both parties knew all the circumstances which might affect the value of the land on that day. Reference to the highest and best use of the land in this context recognises that the use being made of the land may not reflect its true value; so that a vendor would not be willing to sell it by reference to its value for that use.

[38] Some assistance in understanding the concept of highest and best use may be obtained from the following passage from a Canadian writer:[10]

"(T)he legal concept of 'highest and best use' is an economic one, ie 'the use that would bring about the highest economic value on the open market.' 'It is that use of land which may reasonably be expected to produce the greatest net return to the land over a given period of time'."

[39] In De Ieso v The Commissioner of Highways (SA) [11] (De Ieso), Wells J identified the implications of the test formulated in Spencer's Case, by saying[12], in a case concerning land with some potential for subdivision, that the court:

"... is not ... called on to inquire ultimately whether, as a fact, the planning authorities would have approved a relevant plan of subdivision. Rather it is called on to decide how a hypothetical prospective developer [who may be assimilated, in the present context, with the willing, but not anxious, hypothetical purchaser posed by the judgments in Spencer's Case] would have viewed his potential financial return if he were considering a proposal that included one or other of the proposed plans."

[40] The passage from the Canadian writer and the statement from De Ieso both underline the importance of the market response to any potential development or other use of the land.

[41] Both parties relied on a decision of the Court of Appeal of the Supreme Court of Victoria, ISPT Pty Ltd v Melbourne City Council[13] (ISPT) in their submissions on the issues relating to highest and best use. Although that case was concerned with different statutory provisions,[14] the exercise to be undertaken under that legislation is sufficiently similar to warrant adopting the principles stated in it. It was recognised that the highest and best use of a particular piece of land is flexible; and at a particular time it might be to "bank" the land with a view to its future development, rather than to put it to active use.[15] In ISPT, the appellant submitted that it was "necessary to identify a precise highest and best use for the land being valued before embarking on the process of ascertaining and considering comparable sales"[16]. That submission had not been accepted by the Tribunal from whom the appeal was brought[17]; and the Court of Appeal held that the Tribunal did not err in law in its approach[18]. The Court said[19]:

"What use or uses are properly described as highest and best use will be a question of fact. It will also be a question of fact as to what degree of precision can be achieved in this description ... [T]he relevance of precision to the valuation exercise in issue will be governed by the evidence."

"It follows that the evidence may or may not permit a description of highest and best use other than in terms of generality which embraces alternatives and may or may not demonstrate that for valuation purposes it is necessary to do otherwise than so describe the highest and best use ... It may also be that it is relevant to identify alternative highest and best uses because the most profitable potential use is attended by serious risk."

[43] These statements reflect the task which is to be carried out in accordance with Spencer's Case. The concept of the highest and best use of land is of assistance in determining the price to which the hypothetical vendor and purchaser would come. However, there is no logical reason to think that they would in no circumstances have regard to some potential use of the land which is not identified with precision.

[44] It therefore follows that where the value of land is to be determined by reference to some use other than its present use, it will not always be necessary as a matter of law to make a specific finding as to the highest and best use of the land, and in particular as to the intensity and timing of any proposed redevelopment of it.

[45] The evidence did not identify a particular form of redevelopment which was shown to be economically feasible. That does not mean that the Land Court erred in valuing the land by reference to its potential for redevelopment. The real question is whether that potential would have affected the price to which the hypothetical vendor and purchaser referred to in Spencer's Case would have come.

[46] In respect of this question, the Land Court member said the following:

"Mr Jorgensen accepted that in the gimlet-eyed view of the rational purchaser the land's potential was for a mixed use development. His theoretical developments did not prove feasible, but naturally he has not considered all possibilities and the fact that those he did consider did not prove feasible does not show that none would be. The fact that the planners differed on what would be likely to be approved and that the traffic engineers differed on access and car parking arrangements, similarly does not show that nothing could be built that would be feasible and economical. It serves only to illustrate that these are matters appropriately left for the developer to work out rather than for this Court to speculate about. Its jurisdiction does not extend to planning approvals and it would be an error to proceed as if it did by purporting to determine exactly what could be built on the site. It is sufficient in order to determine compensation to find the land's value by comparison with sales of land with like potential at or close to the relevant day. Mr Jorgensen was not able to find a hypothetical development that he believed to be feasible but such a consideration falls far behind the importance of his acknowledgment that the land had the potential for a mixed use commercial development; that is the key point and from it the value can best be determined by sales of land with like potential. The sales analysed by Mr Johnston are useful in that regard."

[47] In essence, the Land Court member took the view that, in the present case, the prospect that a developer could identify an economically feasible form of development justified the determination of value by reference to a mixed use development, and the application of the evidence of sales of land with similar potential.

[48] The evidence included statements from representatives of the purchasers in Sales 1 and 3. The purchaser for Sale 1 purchased in the hope of amalgamation with an adjoining owner, although independent development of the purchased land was also contemplated. The representatives stated, "We were happy to collect the rental whilst awaiting BCC approval and or an amalgamation with an adjoining owner."

[49] The purchaser for Sale 3 purchased the property for the sole purpose of forming part of a larger redevelopment site. The purchaser's representative was aware that community consultation was underway in respect of a draft Lutwyche Road Neighbourhood Plan, but stated that no specific plan had been released at the time of purchase.

[50] There was no suggestion that either purchaser had established the feasibility of the redevelopment of the land, the subject of Sales 1 and 3. Indeed the statements of their representatives makes that unlikely. Yet, both properties were subject to development constraints.

[51] For Sale 1, access was by an easement over the property to the rear. Mr Johnston gave evidence that access would be difficult in a redevelopment scheme. Mr Jorgensen recorded that the purchase was made with a view to receiving income, while investigations were made into development potential, to be followed by an application.

[52] The valuers' remarks relating to Sale 3 record a drainage easement over the middle of this land. Most of it was below the defined flood level. Mr Johnston considered this land to be more difficult to develop than the subject site.

[53] Here the evidence showed that, in respect of Sales 1 and 3, the price was struck when the development potential of the properties was uncertain. Although there was no evidence from a representative of the purchaser in Sale 2, on Mr Johnston's evidence, the lands in Sales 1 and 2 were subject to similar constraints. These sales provided a basis for the approach adopted by the member. In light of the sales evidence, assuming it otherwise to be relevant, it would follow that the Land Court member did not err in failing to determine with greater specificity the highest and best use, or the development potential, of the land.

[54] When considering the sales evidence, the learned member recorded many of the features of the land to which that evidence related. It is sufficient to note some of those recorded for Mr Johnston's Sales 1, 2 and 3. They included land area; access; location; whether the land is subject to flooding; the significance of any building on the land; zoning (or designation under the planning scheme); whether or not there was a lease; topography; and other planning constraints. Elsewhere in his reasons, the learned member referred similarly to the characteristics of the land. He was plainly conscious of its access constraints. The nature of the valuation exercise does not require a point by point comparison of each characteristic of the sale properties and the property to be valued. What is called for is a weighing up of the effects of the similarities and differences, for the purpose of applying the evidence to the land to be valued. This is rarely a precise exercise. As Hope JA observed in Leichhardt[21], sometimes the result will be "nothing more than the best guess that can be made".

[55] It has not been shown that the Land Court member erred in the application of the sales evidence.

[56] As mentioned earlier, the land, along with two other allotments, had been listed for sale with a real estate agent in October 2004. The respondent gave evidence that this occurred as a consequence of a Family Court order, requiring him to pay money, no doubt to his former wife. Shortly after, the properties were put to auction on 11 December 2004. The land had a reserve price of $920,000. The auction was unsuccessful. The land was then listed on the internet at $670,000. The listing category was Residential Home Sales, though the full description described the sale as "A bargain investment with exciting commercial development prospects". The listing occurred in about January 2005.

[57] In the meantime, the respondent sold other properties, and no longer was prepared to sell the land at $670,000. The listing was noticed by the appellant, and drawn to the attention of the respondent's solicitors, resulting in its removal around the middle of 2006.

[58] For the appellant, it was submitted that the Land Court erred in not placing reliance on the listed price as an indicator of the value of the land; and in not addressing the significance of the listing and the absence of interest from any prospective purchaser.

[59] The original listing occurred a little less than two years before the land was resumed. That, together with the nature of the listing and the absence of any active marketing, tends to suggest that this evidence is not of particular significance. The valuers took the view that concluded sales were the best test of market value, and it is by relying on such sales that the Land Court determined the value of the land. That approach is consistent with principle.[22] It has not been demonstrated that the Land Court member erred in his treatment of this evidence.

[3] [1956] HCA 7; (1956) 95 CLR 245, 291.

[4] [1979] AC 426, 436.

[5] (1981) 48 LGRA 409, 434; see also 411, 444.

[6] [1979] AC 426, 436.

[7] (1981) 48 LGRA 409, 434

[8] See the discussion of the authorities in Hyam, Valuation of Land in Australia, (4th ed) pp 466 ff.

[9] [1907] HCA 82; (1907) 5 CLR 418, especially at 432, 441.

[10] Todd, The Law of Expropriation and Compensation in Canada (2nd ed, 1992) page 135 (citation omitted), cited in Jacobs Law of Compulsory Land Acquisition (2010) page 535.

[11] (1981) 27 SASR 248

[12] (1981) 27 SASR 248, 253; cited in Jacobs at page 536.

[13] [2008] VSCA 180.

[14] Valuation of Land Act 1960 (Vic).

[22] See the discretion of the admissibility of evidence of offers to buy and sell in Jacobs, Law of Compulsory Land Acquisition (2010) at [19.285].