BWP Management Limited v Valuer-General [2019] QLAC 4

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - whether the Member at first instance erred in making adjustments to comparable sales for the cost of site improvements - where the Court found the Member erred in failing to consider whether the site improvements would have affected the value of the land sold - where the Court found the Member erred in failing to give any or sufficient weight to evidence of the purchaser's view of the impact on value of the costs of site improvements to a comparable sale

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - whether the Member at first instance erred in the manner in which his Honour analysed sales evidence and in valuing the subject site - where the Member preferred the evidence of the valuer called by the Valuer-General, in part because of his error about the application of s 18 of the Land Valuation Act 2010 - where the Court found that error affected the Member's analysis of the evidence given by the valuers on the sales evidence and in valuing the subject site

Land Valuation Act 2010 s 18, s 23, s 169

Blue Mountains City Council v Mulcahy (1998) 100 LGERA 193, cited

Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 32 LGRA 170, cited

Brisbane City Council v Bortoli [2012] QLAC 8; (2012) 33 QLCR 418, cited

BWP Management Ltd v Valuer-General [2018] QLC 30, considered

Chief Executive, Department of Natural Resources and Mines v Kent Street Pty Ltd [2009] QCA 399; (2009) 171 LGERA 365, applied

Crompton v Commissioner of Highways (1973) 32 LGRA 8, cited

Fenton Nominees Pty Ltd v Valuer-General (1981) 27 SASR 258, cited

Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409, cited

Liat Nominees Pty Ltd v Chief Executive, Department of Lands (1996-1997) 16 QLCR 687, applied

Maurici v Chief Commissioner of State Revenue [2003] HCA 8; (2003) 212 CLR 111, cited

Meiers & Anor v Valuer-General [2012] QLC 19, applied

Riverbank Pty Ltd v Commonwealth (1974) 48 ALJR 483, applied

Valuer-General v Body Corporate for 'Tennyson Reach' Community Titles Scheme 39925 [2018] QLAC 7, applied

Waalt Home Pty Ltd v Road Construction Authority (1987) 64 LGRA 346, applied

Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295, cited

RN Traves QC (instructed by Collin Biggers & Paisley) for the appellant

DP O'Brien QC, with JP Hastie (instructed by Clayton Utz) for the respondent

[1] MULLINS J: I agree with President Kingham.

[2] PRESIDENT KINGHAM: BWP owns land at 65-85 Browns Plains Road, Browns Plains, Queensland. The Valuer-General assessed the site value of the land, as at 1 October 2014, at $8,450,000. BWP has twice unsuccessfully challenged that valuation: in an internal review process conducted by the Valuer-General, and then by appealing the outcome of that review to the Land Court.

[3] Before this Court, BWP argues the learned Member who dismissed its appeal to the Land Court erred both in the legal principles he applied and in the way in which his Honour assessed the valuation evidence. The grounds of appeal are numerous. Some descend to the detail of the analysis of comparable sales relied upon by Mr Ladewig, the valuer engaged by BWP, or Mr Elliott, the valuer engaged by the Valuer-General, or both of them. In these reasons, I have addressed the grounds of appeal by considering the following questions:

(a) Did the learned Member err in applying the wrong onus of proof? (grounds 1 and 2)

(b) Did the learned Member err in wrongly disregarding relevant evidence? (grounds 6, 8, and 11)

(c) Did the learned Member err in his approach to adjustments for the cost of site improvements? (grounds 3, 5, 7(b)(c)(d)(e)(f)(g), 12, 13)

(d) Did the learned Member err in the manner in which he analysed the sales and in valuing the subject site? (grounds 3, 4, 7, 9, 10, 12, 13 & 14)

Did the learned Member err in applying the wrong onus of proof?

[4] Two of BWP's grounds of appeal (grounds 1 & 2) relate to the onus of proof in a land valuation appeal.

[5] The following principles apply. The appellant bears the onus of proof for each ground of appeal.[1] The standard of proof is on the balance of probabilities.[2] The Court must assess whether an appellant has discharged its onus on all the evidence before the Court.[3]

[6] BWP argued the learned Member did not apply those principles in the appeal below. Its argument centres on his Honour's reasons at [237]:

"My findings with respect to Mr Ladewig's evidence are such that BWP has failed to provide sufficient evidence to shift the balance of probabilities in this case to its position as to the value of the subject land as at 1 October 2014."[4]

[7] Read alone, that passage suggests Member Smith dismissed the appeal because BWP did not prove the value it contended for was the correct value of the property. If his Honour determined the appeal in that way, he would have erred. However, on a fair reading of his Honour's judgment as a whole, I am not satisfied that is what he did.

[8] The way in which BWP conducted the hearing below provides important context for his Honour's reasons. BWP's "position as to the value of the subject land" was that it was excessive and not supported by the sales evidence. Although there were other grounds in its Notice of Appeal below, BWP only led evidence in support of its argument the valuation was excessive.

[9] Although that evidence proposed a particular value, if accepted, it served two purposes. Firstly, to demonstrate the valuation was excessive. Secondly, to support an order substituting the value it contended for as the correct value of the property.[5]

[10] At [20], Member Smith correctly stated BWP bore the onus of proving its grounds of appeal on the balance of probabilities. At [236] he said he had considered all of the evidence and had "overwhelmingly accepted the valuation evidence and opinion of Mr Elliot as to the analysis of the comparable sales in this matter."

[11] That is borne out by Member Smith's reasoning on any sale that he accepted as a comparable sale. He made specific findings about the analyses of each of those sales by Mr Elliot and Mr Ladewig. His Honour gave reasons for rejecting Mr Ladewig's analysis of most of them.[6]

[12] Respectfully, his Honour's reasons demonstrate he assessed whether BWP proved the valuation was excessive, on the evidence he considered relevant to the appeal. BWP has not established any error in that regard.

Did the learned Member err in wrongly disregarding relevant evidence?

[13] BWP argues the learned Member erred in failing to consider relevant evidence by disregarding the evidence about two sales because he found they did not meet the requirements of s 18 of the Land Valuation Act 2010 (LVA).[7]

[14] Section 18, relevantly, provides:

"(1) A bona fide sale, for land, is its sale on reasonable terms and conditions that a bona fide seller and buyer would require assuming the following (the bona fide sale tests) -

(b) a reasonable period within which to negotiate the sale;

(c) that the property was reasonably exposed to the market.

(2) For subsection (1), in considering whether terms and conditions are reasonable, regard must be had to -

(b) the state of the market for land of the same type.

(b) the bona fide sale tests are complied with; and

(c) the terms and conditions of the sale are reasonable having regard to the matters mentioned in subsection (2)(a) and (b);

land in question means land whose value is being decided."

[15] Before this Court, it was common ground that s 18 applies when valuing the subject land, but does not prescribe the characteristics of a sale which may be considered in a comparable sales analysis.[8] The Valuer-General's concession on that point is appropriate.

[16] Section 18 is a statutory formulation of the test expounded by the High Court in Spencer v Commonwealth (the Spencer test).[9] The Spencer test applies when valuing the subject land. It assumes a hypothetical sale of that land at the date of valuation and considers what a prudent purchaser, fully informed about relevant matters, would have paid for it.

[17] The traditional, but not the sole, method for arriving at that value is to use relatively contemporaneous sales of comparable properties, at arms-length and unaffected by special circumstances, as a yardstick for the valuation.[10] Using that methodology, comparable sales are a source of evidence. They assist the valuers to apply the Spencer test in valuing the subject site. They are not, however, subject to the test.

[18] Before reviewing his Honour's reasons on the point, it is useful to consider the methodology of a comparable sales analysis and the principles that emerge from case law on the topic.

[19] Valuers draw upon comparable sales in the artificial exercise of assuming a hypothetical sale of the subject land. The hypothetical sale of the subject land must meet the statutory test in s 18 of the LVA, of a bona fide sale.

[20] The purpose in looking at potentially relevant sales is to establish the pattern of prices and alterations in the levels of prices over specified periods. The process of comparison involves considering the attributes of the land and the nature of the transaction.[11]

[21] Whether a sale is truly comparable is a question of fact, not law, and necessarily involves questions of judgment.[12] Considering a sale's comparability is not a binary exercise. It is an oversimplification to say a sale is either comparable or not. There will be gradations of comparability: from identical to irrelevant. Sales that approach the irrelevant end will offer so little assistance that the valuer and the court should disregard them.[13]

[22] What is required is a weighing up of the effect of similarities and differences, which is rarely a precise exercise.[14] Some adjustment is always necessary.[15] There is no hard and fast rule that clearly defines a sale as comparable or not; it is a matter of degree. Where to draw the line is a matter for the expert valuer to determine.[16]

[23] The differences between a particular sale and the land being valued may be so great that a court holds the sale is in no sense comparable. The nature of the adjustments required for a comparative analysis may mean the sale can provide no evidence of or basis upon which to assess the value of the subject land.[17]

[24] Further, the circumstances and considerations that induced the parties in that sale may take it out of the ordinary run of transactions that constitute the relevant market. If so, the valuers may exclude the sale because it was affected by special circumstances.[18]

[25] What emerges from the authorities is that a comparable sales analysis is an evaluative process that does not lend itself to a valuer, or a court, summarily accepting or disregarding a sale without considering the particular features of the land sold and the circumstances of the sale.

[26] The Valuer-General argues his Honour referred to s 18 as "a shorthand way of saying that the sales, in order to be a useful yardstick by which to value the subject land, must themselves have the same characteristics as that which is being valued".[19] However, BWP argues the learned Member dismissed relevant evidence by reference to a legal test that does not apply, without properly considering the sales.

[27] Turning to the learned Member's reasons, the first sale his Honour disregarded is the first sale relied upon by BWP. That is the sale of 6-16 Logandowns Drive and 14-16 Nestor Drive, Meadowbrook.

[28] There was a sharp disagreement between the parties about whether the Meadowbrook sale was a reliable comparator. However, the disagreement was not about whether the sale complied with s 18(c) of the LVA; it was about certain features of the sale agreement. The sale agreement included a clause that conferred some rights on the vendor to buy back the land under an arrangement that counsel for the Valuer-General described as a joint venture. Mr Elliott's concerns about this sale were about what rights were conferred on the vendor and whether that meant the sale should be disregarded.

[29] The questioning of the valuers was confusing and both counsel and valuers appeared to struggle with the meaning and effect of the sale agreement.[20] Although Mr Elliott was clearly concerned about the nature of the transaction, he denied he had formed the view it was not a bona fide sale.[21] Rather he questioned some of the adjustments made by Mr Ladewig in his analysis of the sale, given the nature of the transaction.[22] Assuming it was a bona fide sale, his rate was closer to $290/m2 compared to Mr Ladewig's of $250/m2.[23]

[30] In their submissions, the parties put detailed arguments to the learned Member about this sale. The Valuer-General contended the terms of the agreement between the vendor and the purchaser gave the vendor the absolute right to buy-back the site from the purchaser.[24]

[31] BWP did not agree that was the effect of the contract and even if it was, this did not mean the sale should be disregarded.[25] It referred to the evidence before the Court from both parties to the sales transaction that they paid market value for the property.[26] Both valuers agreed there was no evidence to suggest that the $1.7m land component of the sale was not bona fide.[27] BWP submitted that the fact that the land value was locked-in at $7,500,000 confirmed its market value.

[32] In his reasons, although his Honour briefly canvassed some of the evidence and submissions about the transaction, he declined to resolve them. Instead, he focussed on the fact the land was not put to market:

"[151] ...However, for reasons which resemble an "elephant in the courtroom", it is not necessary for me to make any definitive findings on either the buy-back point or other concerns raised by Mr Elliott. On the clear evidence, BWP's Sale 1 does not meet the statutory test of bona fide sale as set out in s 18 of the LVA.

[152] There are a number of key elements to the statutory test of bona fide sale. For current purposes, the important element is found in s 18(1)(c) which states that the property was reasonably exposed to the market.

[153] In normal circumstances, a property will be found to have been reasonably exposed to the market when the property was, by one way or another, advertised as being for sale. That does not necessarily mean that the vendor engaged a real estate agent who marketed the property. The vendor could market a property themselves sufficiently widely to comply with s 18(1)(c). Importantly, however, it is a requirement that the property is reasonably exposed to the market.

[154] At paragraph 160 of Exhibit 12, the JER states:

'Purchased off-market with Woolworth already involved with the site as potential tenant'.

[155] In case there is any doubt, Exhibit 55 states that the sale was "off-market in a direct sale" and Exhibit 56 states that:

'The sale price of $7.5m was determined based on an estimated net income figure. No other negotiations took place. Coles or no other parties were contacted and the property was not put to the market.'

[156] Both valuers seem to have been of the opinion that there were no other ready purchasers for the site given that Coles already had a store operating in the catchment area. That, however, is not the point of s 18(1)(c) of the LVA. It is simply an unknown as to whether or not some purchaser other than the purchaser of Sale 1 may have been interested in the property.

[157] The property was not put to market. Perhaps if it had been marketed the property would have caught the interest of another shopping centre developer. Perhaps Aldi or another supermarket would have shown interest... The simple fact is that the property was not put to market. It does not, therefore, meet the requirements of s 18(1) of the LVA and is not a bona fide sale.

[160] ...Where the facts clearly show that any or all of s 18(1)(a)(b) or (c) do not apply, the sale cannot be a bona fide sale for the purposes of s 18. This is the case even if the Spencer test may have allowed, in certain circumstances, a different outcome. The specific, clear wording of s 18 in this regard must prevail."

[33] In his reasons on the second sale; the sale of 1 Main St, Springfield Central, Member Smith adopted the same approach:

"[201] Both the Valuer-General and BWP went into detailed submissions as to why their respective submissions with respect to this sale should be accepted. However, it would appear that, just like BWP's Sale 1, both valuers and their legal representatives overlooked a crucial piece of evidence.

[202] At paragraph 306 of the JER Exhibit 12, Mr Ladewig states:

It should be noted that precisely the same words appear at paragraph 279 of the first JER, Exhibit 6. Mr Elliott did not respond to the paragraph in either of the JER's (sic) or in his individual report, Exhibit 8. If the sale was anything other than off-market, Mr Elliott had ample opportunity to so advise.

[203] I am satisfied that the property was not put to market. Accordingly, despite the level of agreement between Mr Elliott and Mr Ladewig regarding their respective analysis' (sic) of the sale, the position is identical to that which I found with respect to BWP's Sale 1. As the property was not put to market, it does not, therefore, meet the requirements of s18(1) of the LVA and not (sic) a bona fide sale. Accordingly, it is unnecessary to consider this sale further.

[204] This sale, although relied on by both valuers, must be ignored."

[34] The learned Member's reasoning on both sales is clear. Respectfully, his Honour summarily dismissed the sales on the sole basis they did not meet a statutory test which does not apply to comparable sales. I do not accept the Valuer-General's submission that his Honour's references to s 18 were shorthand for rejecting the sales because they did not have the same characteristics of the land to be valued. He rejected them solely because they were off-market sales.

[35] BWP submits that, for its appeal on this ground to succeed, it must demonstrate the evidence the learned Member disregarded was relevant.

[36] Mr Elliott appeared to accept the potential relevance of the Meadowbrook sale, although he did not adopt it as a comparable sale for a number of reasons. One was that the site has a different use, being part of a neighbourhood shopping centre. However, Mr Elliott relied on other sales with different uses for his analysis, including a car sales yard and a service station. Mr Elliott's primary concern was about the particular circumstances of the sale, not the characteristics of the land itself.

[37] There was no contest about the potential relevance of the Springfield sale; Mr Elliott first relied on it and, by the time of the hearing, both valuers did. The issue between them was how to analyse the sale for comparison with the subject site. There is a Bunnings store on the site; so it has the same use for bulky goods retail. It is 15 km from the subject land, which is much closer than some sales evidence accepted by the learned Member.

[38] Nevertheless, the Valuer-General submits Member Smith was entitled to disregard the sales. They were "off-market" and it would not be possible to analyse the sales to adjust for that fact.[28]

[39] BWP submits valuers can and do consider off-market sales in a comparable sales analysis. The evidence in this case demonstrates that both valuers thought it possible to consider off-market sales.

[40] Although the learned Member said the valuers and the parties overlooked this aspect of the sales, respectfully, I do not agree. Further, contrary to the Valuer-General's submission, there was evidence before the learned Member about how to adjust for an off-market transaction.

[41] During questioning about the Meadowbrook sale, both valuers were asked about this.[29] They were asked whether a sale being off-market meant the purchase price might be too high or low and whether it indicated an overly anxious purchaser. Counsel for the Valuer-General put to Mr Ladewig that he should have made some allowance for the savings to the purchaser in terms of agency fees and other associated costs such as marketing. Counsel also asked Mr Elliott his opinion on the matter and he said "it makes logical sense to make a reduction in price."[30]

[42] In relation to the Springbrook sale, as Member Smith observed, Mr Ladewig noted the sale was off-market in the joint expert report.[31] He also referred to that when questioned about his allowance for letting up and agency fees.[32] Likewise, counsel for BWP referred to this evidence in his submissions about the sale.[33]

[43] Rather than overlooking the fact the sale was off-market, the parties disagreed about whether the purchase price should be adjusted to account for it, a disagreement the learned Member failed to resolve.

[44] The implications of an off-market transaction in analysing a sale were also canvassed at the beginning of the concurrent evidence session. Both valuers acknowledged that savings in marketing and agency fees were relevant in analysing the purchase price for an off-market transaction. They both identified a number of variables and options that would need to be considered.[34]

[45] Given that evidence, I do not accept the Valuer-General's submission that the sales could not be adjusted to account for the sale being off-market.

[46] Respectfully, the learned Member erred in two ways. Firstly, he excluded evidence by reference to a statutory test that did not apply to the sales. Secondly, because of that, he failed to take into account relevant evidence in making his decision on the appeal.

[47] During argument, I asked counsel whether including these sales would have had any effect on the outcome of the appeal. The Valuer-General submitted that including the Springfield sale would not have done so.[35] It maintained the Meadowbrook sale would have been excluded in any case because of the unusual features of the sale.[36] BWP asked for the opportunity to make submissions about that.[37] On reflection, I do not consider that is necessary.

[48] Had his Honour resolved the argument about the meaning and effect of the sale agreement, he may well have excluded the Meadowbrook sale. There is certainly some indication of that in his reasons. Further, including the Springfield sale may have had limited significance because of other evidence the learned Member did accept. However, because of Member Smith's "overall assessment" of the valuers, it would be unsafe for this Court to proceed on the basis that Member Smith would have dismissed the appeal if he had properly considered the sales.

[49] The learned Member preferred the evidence of Mr Elliott over Mr Ladewig generally. He explained his overall assessment of their evidence in this way:

"[72] Although it is somewhat difficult to separate the two valuers, I prefer the evidence of Mr Elliott over that of Mr Ladewig. One determinative factor in reaching this conclusion was Mr Ladewig's insistence during the second day of concurrent evidence that, in his opinion, his Sale 1 (the Meadowbrook sale) is not only a good sale; it is not even in any doubt. For my part, I find the sale certainly questionable at best. Throughout the hearing, Mr Ladewig's Sale 1 had significant questions about whether it could properly be classified as a bona fide sale in light of it appearing to be part of a joint venture."

[50] Although that was not his sole basis for preferring Mr Elliott generally over Mr Ladewig, it was the first he mentioned. It reinforced another statement he made about Mr Ladewig when dealing with the Meadowbrook sale:

"[148] I was surprised when Mr Ladewig gave his evidence at just how adamant he was as regards the bona fides of the sale taking into account the buy-back provisions of the contract. I remain surprised. I do not share his optimism, and it troubles me that he did not at, T 2-59 line 35, even raise any concerns as to the bona fides of the sale."

[51] Respectfully, I consider those passages demonstrate his Honour's assessment of Mr Ladewig as a witness generally was affected by his error about the requirements for a comparable sale. In those circumstances, it is not appropriate to assume that his Honour's consideration of the two sales would have had no bearing on the outcome of the appeal.

[52] On this ground, I consider the appeal should be allowed.

Did the learned Member err in his approach to adjustments for the cost of site improvements?

[53] BWP argues the learned member erred in his approach to adjustments for the cost of site improvements in analysing three sales - 115 Compton Rd, Underwood, 53-91 Dalton Rd, Maroochydore and 111, 56 & 85 Northlakes Drive, Northlakes. I will address that argument as it arises on a sale-by-sale basis. However, it is helpful to provide some context.

[54] The subject land is improved non-rural land and must be valued at its site value.[38] That is its expected realisation under a bona fide sale including all site improvements[39] when valued and assuming any non-site improvements[40] had not been made.[41]

[55] Non-site improvements are any work done or material used on the land other than a site improvement.[42] The definition of site improvements in s23 LVA includes, relevantly, works done to the land necessary to improve or prepare it for development.[43]

[56] BWP asserts Member Smith wrongly applied s 23 in assessing the evidence of comparable sales. That section is relevant to valuing the subject land not the comparable sales. However, to compare a comparable sale with the subject land on a site-improved basis, it may be necessary to make allowance for differences in the state of the comparable land. The Valuer-General led quantity surveying evidence about the cost of works that may be necessary to bring the comparable land to the same site-improved state as the subject land is assumed to be for the purpose of the valuation.

[57] There are two aspects to the ground of appeal. First, that Member Smith equated the cost of site improvement with value. Second, that Member Smith accepted adjustments to account for that cost without evidence the purchaser considered the cost in agreeing on the sale price.

[58] The first aspect arises in this way. Mr Davidson, the quantity surveyor called by the Valuer-General, provided an indicative estimate of the cost of site works required to bring those three sites to a site improved state comparable to the subject property. His evidence was uncontested. After summarising Mr Davidson's evidence, Member Smith discussed the Court's approach to evidence of that nature:

"[60] Importantly, however, any form of simple mathematical equation as to determining the impact that those costs have on the valuation process must not occur."[44]

[59] BWP says this is consistent with the proposition that expenditure on an improvement does not necessarily result in an increment of the same amount to the value of land.[45] That is not in dispute. "It is a well-established principle that the value of an improvement is different in concept to its cost of construction."[46]

[60] The LVA reinforces that approach, at least in determining the site value of the subject land. A site improvement is only relevant for that purpose if it increases the land's value.[47] It makes sense, then, in analysing a comparable sale to allow for a site improvement only if it would increase the land's value over the sale price.

[61] BWP asserts that by accepting Mr Elliott's evidence about site improvements to the three sales, the learned Member equated cost with value, contrary to principle. This is because Mr Elliott's analysis of the sales in the JER simply adds on the costs estimated by Mr Davidson.[48] The Valuer-General denies that is what Mr Elliott did. For example, his Honour noted that neither valuer included certain items estimated by Mr Davidson in their analysis of the Compton Road sale.[49]

[62] It is hard to untangle this issue from the preliminary question of whether to make an allowance. On a fair reading of the evidence of the valuers, they disagreed about whether it was necessary to make an allowance, rather than how to reflect that in analysing the sale. Where either made an allowance for site works, they were content to draw upon the quantity surveying evidence. The parties offered no other methodology for allowing for the impact on value of a site improvement.

[63] Nevertheless, in deciding whether to accept an analysis that adjusts for a site improvement, there are two distinct questions. The first is whether there is a material difference between the comparable land when sold and the subject land in its assumed site-improved state. The second is whether that difference demanded some adjustment in analysing the sale to account for the impact of the difference in value of the comparable land. Counsel for BWP clearly articulated the second factor in his written submissions before his Honour.[50] I will return to this topic, when considering the arguments made about how the learned Member approached site improvements for particular sales.

[64] The second aspect of this ground of appeal arises in this way. BWP argues there was no evidence that the purchasers of the three properties had the disputed costs in mind when settling on the purchase price. Without such evidence, the Court should have approached the quantity surveying evidence with caution.

[65] The Valuer-General argues the correct approach is to assume the purchaser was prudent and fully informed and took into account all relevant matters.[51] BWP says this argument wrongly assumes the Spencer test applies to comparable sales.[52]

[66] That submission misses the point. In comparing a sale of vacant land to the subject land under the LVA, the analysis may need to allow for the cost of works to bring the vacant land to the same site-improved state as the subject land. The question is what evidence is required before a valuer may make such an allowance. I accept the Valuer-General's submission that, in the absence of evidence to the contrary, a valuer may assume the purchaser of a vacant site settled on the price, taking into account the likely cost of preparing the site to develop it for its highest and best use.

[67] Respectfully, I adopt the reasoning of Gobbo J in Waalt Home Pty Ltd v Road Construction Authority:

"If one is seeking to arrive at the common starting point of a vacant land sale, more or less capable of being developed, then one should take into account any significant expense to bring the sale in question to that point. This is on the basis that the purchaser would have taken this likely expense into account in formulating his price. It is a recognition that there is no proper measure of comparison if the rate extracted from the other sales is on the basis of more or less cleared land ready for development, whereas the sale in question required both costly demolition and roadworks before any development could occur. There are some riders to this. In the first place, such adjustment should not be made if the possibility and nature of the expenditure, as opposed to its details, were unexpected and not known before the sale, for in that event the sale price was presumably not capable of being affected by the these factors. Secondly, the adjustment should not be made where the works are properly part of the subsequent development itself.

This would be so, for example, where the roadworks were not, as here, mandatory whatever the development, but were carried out to achieve a particular project. Thirdly, the adjustment should relate to the expectation as to costs anticipated at or before sale and not necessarily the actual costs subsequently incurred." [53]

[68] There was no evidence the purchaser of any of the three sales took the costs of site works into account in settling the sale price. However, except for the Compton Road sale, there was no evidence the purchaser did not consider them in doing so. As a matter of valuation practice, I accept a valuer may make some assumptions about the purchaser's intention as a matter of common sense, without direct evidence or evidence from which the purchaser's intention can be inferred. Of course, there may be evidence to the contrary, or there may be other circumstances that mean the valuer should not make an allowance.

[69] Against that background, I turn to the sales.

Did the learned Member err in the manner in which he analysed the sales and in valuing the subject site?

[70] Central to Member Smith's decision was his preference for Mr Elliott's over Mr Ladewig's, in relation to particular sales and overall.[54] BWP raises a number of grounds about his Honour's acceptance of that evidence. I have already concluded that his Honour's adverse view of Mr Ladewig as a witness was affected by his erroneous view that s 18 applied to comparable sales. Necessarily, that will have affected his assessment of Mr Ladewig's evidence about the comparable sales and the subject site.

[71] In addition, BWP argues the learned Member erred in his assessment of the valuers' evidence for a number of other reasons, including in his approach to site improvements. I will address those arguments in relation to each sale.

[72] BWP alleges the learned Member made a number of errors in his reasoning about this sale. This was one of two common sales, so there was no dispute about its comparability, just its analysis. The valuers disagreed about the following matters:

• Mr Elliott's allowance for the Perrin Drive extension and flow on costs (adding $640,941 to the sale price);

• Mr Elliott's allowance for a detention tank (adding $742,000 to the sale price); and

• Mr Ladewig's allowance for letting up and agency costs and for the purchaser acquiring market share (reducing the sale price by $376,432).

[73] Although it raises more grounds in its notice of appeal to this Court, at the hearing BWP maintained that Member Smith erred in the following ways:

(a) failing to have any or sufficient regard to exhibit 51;

[74] Because they are linked, it is convenient to deal with the arguments about exhibit 51 and Mr Elliott's allowances together. Exhibit 51 is relevant to the items for which Mr Elliott made allowance: the costs of the Perrin Rd extension, a detention tank, and the costs associated with those improvements. Mr Elliott said they were relevant allowances, being site improvements. Mr Ladewig said they were costs of the particular development and the purchaser did not account for them in agreeing on the sale price.

[75] BWP says the road works were effectively off site works as the land on which they were constructed was to be dedicated, at no cost, to the State. However, the land had not been dedicated before sale, and the more pertinent question BWP raises is whether the road works related to the particular development, not any development of the land for its highest and best use. On that point, there was evidence before the Court that the Perrin Rd extension would have been required for any development of the site, given its location and its connecting roads.[55]

[76] The issue with the detention tank was that the learned Member accepted an adjustment at full cost.[56] Mr Elliott confirmed that is what he did.[57] BWP says the cost was excessive and, at best, the purchaser would have contemplated a "standard" detention tank.

[77] Assuming it was right to make some allowance for a detention tank for the purpose of comparison, neither valuer offered the learned Member an alternative methodology for assessing the impact on value. As counsel for BWP conceded in his submissions to Member Smith, there was no probative evidence as to the value of a risk of being required to construct a "lower order of detention tank".[58] In those circumstances, it would have been difficult for the learned Member to make any other allowance for the tank.

[78] Whether the learned Member should have accepted an allowance for either the roadworks, the detention tank or the associated costs depends on the evidence before the Court. In that context, the learned Member's reasoning about exhibit 51 is key to the analysis of this sale. Exhibit 51 is an email exchange between Mr Ladewig and Mr Huw Williams.

[79] BWP relies on the following statements in Mr Williams' email as evidence of the purchaser's knowledge of those costs:

(i) Mr Williams was involved in the acquisition of Compton Rd for Hydrox (the purchaser);

(ii) He believed the extension of Perrin Drive was creditable works;

(iii) He only made an allowance for the standard detention basis that would have been required for the proposed development, and had not anticipated a need to make an extra allowance.[59]

[80] Exhibit 51 is hearsay evidence. As Member Smith observed, valuers often draw on hearsay evidence in their valuation evidence.[60] The Land Court is not bound by the rules of evidence and may inform itself in the way it considers appropriate.[61] Ideally, a valuer would raise information from the purchaser in a report or discuss it in the meeting of experts. This allows the other valuer to make their own enquiry.

[81] Member Smith criticised BWP for the timing of Mr Ladewig's enquiry, made only weeks before the trial. The Valuer-General revealed his position on these items sometime in the first half of 2017.[62] However, Mr Ladewig did express his concerns about the Perrin Rd extension and the detention tank in his report of 30 July 2017.[63] He noted the connection both had with the development approval. In relation to the detention tank, he said this cost "was not known to the market" at the date of sale.[64] That put the Valuer-General, and Mr Elliott, on notice of the issue. Mr Elliott could have made his own enquiries.

[82] Further, the Valuer-General, not BWP, tendered the emails, and did so without reservation or limitation as to its purpose. Both valuation experts referred to and gave evidence about the implications of Mr William's email for their opinion.[65] There was no apparent prejudice to the Valuer-General if the Court gave full weight to the email. Indeed counsel for the Valuer-General perceived a forensic advantage in tendering the evidence.

[83] It remained for Member Smith to consider what weight to give to exhibit 51. He correctly observed the author was relying on his memory about the purchaser's knowledge some years after the fact. However, the author was personally involved in the transaction, and there was no evidence to the contrary.

[84] Respectfully, I consider the learned Member should have paid greater regard to Mr William's email. Applying the reasoning of Gobbo J in Waalt Home Pty Ltd v Road Construction Authority,[66] exhibit 51 was relevant to whether the analysis of this sale should include an allowance for those improvements. It was evidence the purchaser did not anticipate and did not taken into account the costs when agreeing on the sale price.

[85] Member Smith acknowledged the relevance of the evidence. He said the works were site improvements for which there should be an allowance, "subject to the purchaser's intentions for the sale property."[67] He observed exhibit 51 was "very important evidence".[68] However, he gave the evidence little or no weight, concluding "there is nothing in Exhibit 51 to alter my view that the allowances... (made by Mr Elliott)... are site improvements for the purposes of s 23 of the LVA."[69]

[86] Respectfully, I consider the learned Member misdirected himself on this issue. As discussed at [63] of these reasons, in deciding whether to make an allowance, there are two considerations. First, whether it is necessary to make the allowance for comparison with the subject site in an assumed site-improved state. Second, whether the site improvement adds value to the sale property. The learned Member did not address each of those considerations.

[87] Respectfully, I find the learned Member erred in giving no weight to exhibit 51. In doing so, he also rejected, without properly considering them, BWP's submissions about why the Court should accept the purchaser did not account for the costs in fixing on the sale price.[70] Rather, his Honour considered only whether the works qualified as site improvements for the purposes of s23 of the LVA.

[88] Mr Ladewig included an allowance in his assessment for letting up and agency costs and the premium that the purchaser would pay for the site. His rationale was the purchaser was an owner-occupier and would save leasing and agency costs,[71] and would pay more to secure market share.[72]

[89] The learned Member rejected these allowances by reference to extracts from two decisions, which observed that the valuer must accept the actual sale price of a property.

[90] BWP says the correct approach is explained in ANZ Holdings Limited v Chief Executive, Department of Lands:

"Similarly, if in the present case the sale price of the Westpac site is enhanced by the value o the tenant, this could only be in connection with the building, and yet the Act requires that it must be assumed that no building exists. Therefore, any such enhancement in the sale price cannot be attributed to the land or reflected in the unimproved value." [73]

[91] That case and the other case BWP relied upon[74] involved sales of improved properties used for a comparable sales analysis. In analysing the sales, it was necessary to separate the value of the land from the value contributed by the improvements. That is a different scenario from the one faced by the valuers in analysing this sale. Compton Rd was a vacant land sale. Respectfully, I agree with the learned Member.

"It is well established that a valuer must accept the actual sale price of a property which he intends to use as the basis for the valuation of another property."[75]

[92] Compton Rd was one of only two common sales. The learned Member accepted Mr Elliott's analysis of this sale, and rejected Mr Ladewig's, having given no weight to the only evidence of the purchaser's view, at the time of the sale, of the likely cost of site-improvements to prepare the site for development. This meant he did not properly consider whether to make the allowances in the particular circumstances of this sale. Given the importance of this sale to the Valuer-General's case, and to his Honour's decision, I consider the appeal should be allowed on this ground.

(a) in accepting Mr Elliott's analysis of this sale at $173 m2; and

(b) in finding Mr Ladewig did not take proper account of the risks associated with the industrial zoning of the property at the time of the sale.

[94] The Valuer-General submits BWP does not explain the alleged errors, and only refers to some of the evidence about this sale.

[95] Member Smith accepted the sale was a comparator for the subject site, although significantly inferior. However, he preferred Mr Elliott's analysis of the sale at $175m2 over Mr Ladewig's at $145m2.[76]

[96] One reason was that Mr Ladewig had not accounted for the risks associated with the industrial zoning of the site at the time of the sale. Mr Elliott adjusted the sale price in his analysis, to account for the time and holding costs associated with the development approval process involved in taking an industrial site to a higher use.

[97] Mr Ladewig did not make any allowance for planning risk because, amongst other reasons, the purchasers knew proposed changes to the town plan would mean the development process would be less difficult.

[98] However, a valuer's file note attributed the following statement to a representative of the purchaser:[77]

"-Questioning him about value/purchase price and what he thought. He answered based on the existing zoning at the time of purchase he thought they paid what it was worth. Based on the new Town Plan and the change in zoning in hindsight yes we got it cheap."

[99] That evidence supports Mr Elliott's adjustment. The purchaser acknowledged the impact on value of the inferior zoning at the time of sale. The clear inference was that a better zoning would mean the purchaser would be willing to pay a higher price. There was an evidentiary foundation for Member Smith preferring Mr Elliott's approach to analysing this sale.

[100] Further, the learned Member referred to other factors that persuaded him to accept Mr Elliott's analysis, including the very limited exposure, inferior location, and catchment area of the land, and the height restriction that applied to its development.

[101] There was no error of law in his Honour allowing for the planning risks associated with the zoning of the land at the time of sale.

53-91 Dalton Rd, Maroochydore (ground 12); 111, 56 and 85 Northlakes Drive, Northlakes (ground 13)

[102] Broadly speaking, BWP makes the same arguments for the Maroochydore and Northlakes sales and it is convenient to consider them together.

[103] BWP says the learned Member wrongly accepted Mr Elliott's allowance for certain roadworks in preparing the Maroochydore land for development and other adjustments for the Northlakes sale.

[104] With respect to the Maroochydore sale, both valuers made an allowance for roadworks.[78] When questioned about this by Member Smith, the valuers explained why they each accepted a purchaser would take into account such costs in arriving at the sale price.[79]

[105] With respect to the Northlakes sale, Member Smith did not accept all of Mr Elliott's evidence about site improvements. He rejected his allowance for a suspended slab as being a non-site improvement. That was what BWP invited him to do.

[106] In any case, the real difference between the valuers in relation to both sales was their utility for a comparable sales analysis.[80] Maroochydore is located 100kms from the subject land, with a different zoning, and is in an area planned for strategic development as the CBD of the Maroochydore region. Northlakes is 45.2 km from the subject land, in the Northlakes development in the Moreton Bay Regional Council area.

[107] BWP asserts Member Smith was inconsistent in his approach to distance, having excluded another of Mr Elliott's sales, 1-3 Newheath Drive, Arundel. That land was closer to the subject land, being only 42.6km away.

[108] That criticism has no foundation. The learned Member did note the Arundel sale was located some distance from the subject land,[81] but only after expressing concerns about its comparability because of its zoning, its size, its significantly superior location, and the purchaser's proposed use of the land as a car sales yard and service centre.[82] The combination of factors led him to reject the sale, the distance being just another factor that added to his concerns.

[109] Other than distance, BWP relies on the different locations, zoning and size of the blocks. Member Smith directly addressed BWP's argument these differences were so great the sale provided no proper basis for comparison.[83] However, he took considerable comfort from the fact that Mr Ladewig conceded in cross-examination that, in a JER for a different valuation appeal, Mr Ladewig considered he could draw on sites from different localities and make the necessary adjustments for those factors.[84]

[110] Mr Ladewig considered there was better local sales evidence for the subject land.[85] It was open to Member Smith to accept BWP's argument that distance and other factors required so much adjustment that the sales were not a reliable or primary source of evidence. That does not mean the learned Member could not have accepted Mr Elliott's evidence that these sales provide a sound basis for comparison. The difficulty is that his Honour's assessment of this evidence would have been affected by his adverse view of Mr Ladewig as a witness; a view formed in part because of his error about the relevance of s18 to comparable sales evidence.

The subject land (ground 10) and generally (ground 14)

[111] Further, BWP says that Mr Elliott displayed no evaluative judgment in applying the comparable sales to the subject land, nor any guidance about how he arrived at the rate of $300/m2. The Valuer-General denied Mr Elliott failed to disclose his reasoning. Having considered Mr Elliott's oral evidence,[86] as well as the reports,[87] I am satisfied that Mr Elliott did expose his reasoning in relation to each sale. Otherwise, BWP's assertions for this ground of appeal have already been addressed by the reasons given above.

[112] BWP has succeeded on some, but not all, of its grounds of appeal. For the appeal to succeed, BWP must establish that the orders of the Land Court are the result of some legal, factual or discretionary error that is sufficiently material or operative to warrant setting aside the decision.[88]

[113] An error of valuation principle is an error of law.[89] A failure to make a finding on a material fact in issue is also an error of law.[90] I am satisfied his Honour erred in both regards and that the appeal should be allowed.

[114] I have concluded the learned Member erred in applying s 18 of the LVA to the comparable sales, thereby excluding relevant evidence and making no findings about two sales, one of which was a common sale (Springfield), and the other of which was the first sale relied on by BWP.

[115] Further, I have concluded the learned Member did not pay any or sufficient regard to relevant evidence (exhibit 51) in analysing another common sale (Compton Rd), and that he failed to consider whether the disputed site improvements affected the value of that land.

[116] The Court has the power to substitute its own decision for the decision under appeal. I do not consider that course is appropriate in this case. It will be difficult for this Court to determine a value for the subject land because of the absence of findings about the Meadowbrook and Springfield sales. Further, those findings the learned Member has made about the sales evidence are affected by his Honour's preference for Mr Elliott as a witness overall. As previously noted, this rests partly on his Honour's error about the application of s18 of the LVA to comparable sales.

[117] In those circumstances, I consider the better course is to allow the appeal and remit the appeal for re-hearing by a different Member of the Court.

2. The orders made by the Land Court on 28 September 2018 in proceedings LVA037-16 are set aside.

3. Remit proceeding LVA037-16 for hearing by the Land Court before a different Member.

4. Any submissions seeking a costs order in respect of the appeal must be filed and served within 14 days of the publication of these reasons.

[119] MEMBER STILGOE: I have had the advantage of reading the reasons prepared by Kingham P and, respectfully, agree with the reasons and the orders proposed.

[1] Land Valuation Act 2010 s 169(5).

[2] Meiers & Anor v Valuer-General [2012] QLC 19 [27].

1. [3] Valuer-General v Body Corporate for 'Tennyson Reach' Community Titles Scheme 39925 [2018] QLAC 7 [32].

[4] BWP Management Ltd v Valuer-General [2018] QLC 30 (RJ).

[5] LVA s 170(b).

[6] RJ [72], [73], [106], [120]‑-[121], [122]-[129], [171]-[173], [220]-[226], [232].

[7] Appellant's submissions filed 1 March 2019 [10].

[8] Respondent's submissions filed 30 April 2019 [22].

[10] Riverbank Pty Ltd v Commonwealth (1974) 48 ALJR 483, 484; Maurici v Chief Commissioner of State Revenue [2003] HCA 8; (2003) 212 CLR 111 [16].

[11] Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 32 LGRA 170, 179-80.

[12] Chief Executive, Department of Natural Resources and Mines v Kent Street Pty Ltd [2009] QCA 399; (2009) 171 LGERA 365 [154].

[13] Crompton v Commissioner of Highways (1973) 32 LGRA 8, 23-4.

[14] Brisbane City Council v Bortoli [2012] QLAC 8; (2012) 33 QLCR 418 [54].

[15] Brewarrana Pty Ltd v Commissioner of Highways (No 2) 1973) 32 LGRA 170, 179-80.

[16] Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [50].

[17] Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409, 435.

[18] Fenton Nominees Pty Ltd v Valuer-General (1981) 27 SASR 258, 266.

[19] Respondent's submissions filed 30 April 2019 [26].

[20] Original hearing: T 2-37 to T 2-57.

[21] Original hearing: T 2-43, lines 4 to 6.

[22] Original hearing: T 2-42, lines 36 to 41.

[23] Original hearing: T 2-42, lines 45 to 47.

[24] Respondent's submissions filed 31 January 2018, 22.

[25] Appellant's reply submissions filed 6 February 2018 [40].

[26] Appellant's reply submissions filed 6 February 2018 [42]; Ex 55; Ex 56.

[27] Original hearing: T 2-59 lines 30 to 38.

[28] Respondent's submissions filed 30 April 2019 [32].

[30] Original hearing: T 2-33, line 20.

[32] Original hearing: T 2-170 lines 29 to 32.

[33] Appellant's submissions filed 23 January 2018 [109].

[34] Hearing before the Land Appeal Court: T 1-98 to T 1-100.

[35] Hearing before the Land Appeal Court: T 1-37, lines 35 to 47.

[36] Hearing before the Land Appeal Court: T 1-40, line 41 to T 1-42, line 46.

[37] Hearing before the Land Appeal Court: T 1-66, lines 1 to 12.

[38] LVA s 7.

[39] LVA s 23.

[40] LVA s 24.

[41] LVA s 19.

[42] LVA s 24(1).

[43] LVA s 23(1)(h).

[45] Appellant's submissions filed 1 March 2019 [16], referencing Leichhardt Municipal Council v Seatainer Terminal Ltd (1979) 40 LGRA 353, 374_-_375.

[46] Blue Mountains City Council v Mulcahy (1998) 100 LGERA 193, 200.

[47] LVA s 23(2)(a).

[50] Appellant's submissions in reply filed 6 February 2018 [13]-[14].

[51] Respondent's submissions filed 30 April 2019 [42].

[52] Appellant's submissions in reply filed 20 May 2019 [19].

[53] (1987) 64 LGRA 346, 352_-_343.

[55] Ex 50, "Development Permit MCUC/397/2006" 8.

[56] Appellant's submissions filed 1 March 2019 [28].

[57] Original hearing: T 1-172, lines 30 to 31.

[58] Appellant's submissions filed 22 January 2018 [67].

[59] Appellant's submissions filed 1 March 2019 [30].

[61] Land Court Act 2000 s 7.

[65] Original hearing: T 1-166, line 17 to T 1-167, line 41; T 1-171, line 40 to T 1-172, line 43; T 1-176, line 15 to T 1-177, line 17; T 1-185, line 24 to T 1-186, line 1; T 1-193, line 45 to T 1-194, line 1; T 1-201, line 32 to T 1-202 line 12; T 2-162, line 34 to T 2-165, line 4.

[66] (1987) 64 LGRA 346.

[70] Appellant's written submissions filed 23 January 2018 [50]-[55].

[73] (1994-5) 15 QLCR 223, 233.

[74] Yu Feng Pty Ltd and Yuan Chieh Pty Ltd v Chief Executive, Department of Natural Resources (2001) 22 QLCR 205; [2001] QLC 13.

[75] Liat Nominees Pty Ltd v Chief Executive, Department of Lands (1996-1997) 16 QLCR 687, 706.

[79] Original hearing: T 1-109, line 40 to T 1-110, line 30.

[80] Appellant's written submissions filed 22 January 2018, [116]; RJ [209].

[85] Original hearing: T 2-203, line 27.

[86] Original hearing: T 1-48 to T 1-211; T 2-5, line 10 to T 2-247 line 20.

[87] Ex 6, Ex 8, Ex 12.

[88] Glencore Coal Qld Pty Ltd v Keys (2014) 35 QLCR 194 [9]-[13].

[89] Landel Pty Ltd and Lakes Investment Pty Ltd v Department of Natural Resources and Mines (2002) 23 QLCR 268 [16].

[90] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 [38], [69].