Mio Art Pty Ltd & Ors v Brisbane City Council [2009] QLC 177

[1] These proceedings arise out of the resumption of land situated at 85 Montague Road, South Brisbane, by the Brisbane City Council (the respondent) under the provisions of the Acquisition of Land Act 1967 (the Act). As at the date of resumption, 31 August 2007, the land was owned by Mio Art Pty Ltd and subject to mortgages held by Perpetual Nominees Ltd, Grenfell Securities Ltd, Greener Investments Pty Ltd and Neovest Ltd. Proceedings against these parties were commenced by the Brisbane City Council on 29 November 2007 under s.25 of the Act (Reference to Land Court by constructing authority). Pursuant to orders of this Court, Grenfell Securities, Greener Investments and, ultimately, Mio Art entered appearances by filing claims for compensation in this Court. The action against Perpetual Nominees Ltd was discontinued by Notice dated 29 April 2008. Grenfell Securities withdrew its claim by Notice dated 24 November 2008.

[2] The Court also ordered Neovest Ltd to enter an appearance by filing a claim for compensation on or before 14 January 2008. Neovest failed to comply with that order, has not filed a claim for compensation and did not appear at the hearing. The Court has been advised that Neovest is in liquidation and, by order of the Supreme Court of Queensland dated 16 May 2008, the Brisbane City Council was granted leave to proceed with its originating application filed in this Court against Neovest. Section 25(4) of the Act provides that where a claimant fails to enter an appearance on or before the date fixed by the Court, the Land Court may hear and determine the matter of the amount of compensation in the absence of the claimant. Pursuant to Orders of the Court made on 20 May 2008, all of the proceedings were heard together. The determination in this matter will, therefore, bind all the parties to all the matters before the Court, including Neovest Ltd.

[3] Prior to the resumption, the land owned by Mio Art was described as Lot 1 on RP 903012 (745 m²) and Lot 2 on RP 903012 (8,080 m²), a total area of 8,825 m². By Taking of Land Notice (No. 31) 2007 published in the Queensland Government on 31 August 2007, the respondent took the whole of Lot 1 and part of Lot 2, described as Lot 21 on SP 183609, having a total area of 5,643 m², for road purposes. The residual land, described as Lot 22 on SP 183609 has an area of 3,182 m².

[4] Mio Art and Greener Investments are seeking determinations of compensation under the Act in respect of the resumption of the land. The primary question to be determined is the value of the land taken. The parties are agreed that the appropriate methodology to be applied is the before and after method of valuation. Such an approach has the advantage that it takes into account all elements of severance, injurious affection and enhancement.

[5] It is common ground between the parties that the highest and best use of the land as at the date of resumption was for commercial office development, and that remained the highest and best use of the residual land after the resumption. The residual land was sold by contract dated 27 November 2007, for $8,964,685.68. There was no dispute between the parties that this sale reflected the market value of the residual land as at the date of resumption and accordingly that the value of the residual land was $9,000,000 ($2,828/m² of land). The critical issue is the value of the subject land in the before case.

[6] The parties proposed different development schemes for that land leading to different valuations for the land in the before case -

(i) Mio Art proposed a development of 12 storeys with a GFA of 66,579 m² and a plot ratio of 7.54:1. Consequently, Mio Art valued the land in the before case at $44,950,000.

(ii) Greener proposed a single building of 10 - 12 storeys with a GFA of 71,750 m² and a plot ratio of 8.1:1. Greener therefore valued the land at $48,537,500 in the before case.

(iii) The respondent proposed three buildings of 6 - 10 storeys with a GFA of 34,175 m² and a plot ratio of 3.87:1. The respondent contended that the before value of the subject land was $22,062,500.

[7] By an amended claim for compensation filed by leave on 27 February 2009, Mio Art claimed the monies due to them as follows -

(a) Claim as owner: Balance due estimated to be $25,400,012 including interest and presently calculated as follows:

Value of whole parcel as at 30 August 2007 $44,950,000

Less initial compensation paid on 5 October 2007 $9,500,000

(b) disturbance items including legal and other consultancy fees incurred in preparing this claim and costs associated with the acquisition of the land by BCC as may not otherwise be recoverable under (a) above.

(c) Total claim: $25,400,012 together with interest at the court rate until judgment plus the value of disturbance items and costs.

[8] By an amended claim for compensation filed by leave on 27 February 2009, Greener claimed $39,500,000 calculated as follows -

(b) Disturbance items including legal and the fees incurred in preparing this claim and costs associated with the acquisition of the land by BCC as may not otherwise be recoverable under (a) above.

(c) Interest at the court rate until judgment plus the value of disturbance items and costs.

[9] The respondent contended that the value of the land prior to resumption was $22,062,500 and that, after deducting $9,000,000 for the value of the residual land, compensation should be determined to be $13,100.000 (rounded).

[10] Section 20 of the Act provides in part that -

"(1) In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also -

(a) to the damage, if any, caused by any of the following -

(i) the severing of the land taken from other land of the claimant;

(ii) the exercise of any statutory powers by the constructing authority otherwise injuriously affecting the claimant's other land mentioned in subparagraph (i); and

(b) to the claimant's costs attributable to disturbance.

(2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.

(3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken."

[11] It is well recognized that in assessing the value of the estate or interest of the claimant in the land taken it is the market value of the land that is to be ascertained. In Spencer v The Commonwealth of Australia[1], Griffith CJ said:

"... In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, i.e., whether there was in fact on that day a willing buyer, but by inquiring 'What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?' It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together."

"The plaintiff is to be compensated; therefore he is to receive the money equivalent to the loss he has sustained by deprivation of his land, and that loss, apart from special damage not here claimed, cannot exceed what such a prudent purchaser would be prepared to give him. To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property."

[12] As can be seen from the brief summary of each parties' position set out above, there is a significant difference between them as to the potential gross floor area (GFA) of the site in the before case. It is not the function of this Court to decide whether the planning authority would approve a particular proposal. Rather it is the function of the Court to determine, having heard the relevant evidence, how the hypothetical prudent purchaser referred to in the judgments in Spencer would have viewed the potential financial return if a proposal were considered that included one or other of the proposed plans.[3]

The subject site before resumption and the area in which it is located

[13] The land was resumed for the purpose of construction of the Hale Street Bridge. At the date of resumption there were remnants of previous improvements on the site. Prior to the resumption, the subject site was irregular in shape and was bounded by Bouquet Street, Montague Road, Boundary and Lanfear Streets, and Riverside Drive. A heritage building referred to as the Foggitt and Jones factory adjoins the site to the north-east. Mr David Lane (an architect of Thomson Adsett Architects, who gave evidence on behalf of Greener) described the site as a unique island site bounded by four roads, which was the locus of the flow of the Kurilpa Peninsula, from Boundary, Cordelia and Merivale Streets and Montague Road. The Kurilpa Bridge, the cultural precinct and the bus interchange at the Melbourne-Grey Streets intersection radiated in or out of the site. Mr Lane thought that there was the capacity for the site to become a focal point for the redevelopment of the district.

[14] The size and proximity of the site to the river caused intense debate between the expert witnesses as to the nature of an appropriate and permissible development as at the date of resumption. Further, the area in which the site was located was an urban renewal development area close to the Brisbane CBD with the construction of a pedestrian link bridge to the CBD underway as at the relevant date. The implications of those features for the proposed development were also in issue.

[15] Expert evidence in this matter was provided on behalf of Mio Art by architect Ian McNaughton, town planner, John Panaretos and valuer John Robertson. Greener Investments called architect David Lane and town planner Chris Buckley and valuation evidence was provided by Jamie Horsburgh, a director of the company. Brisbane City Council called architect Greg O'Brien, town planner Greg Ovenden, traffic engineer Colin Beard and valuer Lionel Johnston. A report by Adam Pekol, traffic engineer, was also tendered by the Brisbane City Council but Mr Pekol was not called. Reports by quantity surveyors were filed on behalf of Greener and the Brisbane City Council and a joint report signed by quantity surveyors representing all parties was also filed. No quantity surveyors were called to give evidence and the costs of the construction of the proposed developments was not in issue.

[16] Town planners, Mr Panaretos, Mr Buckley and Mr Ovenden had met prior to the hearing and prepared a joint report setting out the matters on which they agreed and disagreed. It was common ground that it would have been necessary for a developer to obtain a development approval to realise the highest and best use of the subject land and that the prudent purchaser would have proceeded on the basis of making a code assessable rather than an impact assessable application.

[17] The town planners agreed that the most important town planning instruments regulating the development of the site were:

(i) the West End Woolloongabba District Local Plan (the WEWDLP), part of City Plan;

(ii) the West End Woolloongabba District Local Plan Code (the WEWDLP Code), part of City Plan;

(iii) the Centre Design Code, part of Brisbane City Plan 2000; and

(iv) the draft Kurilpa Structure Plan which proposed amendments to the WEWDLP. There was disagreement as to which version of the draft Plan was relevant.

Mio Art and Greener also relied on a document prepared by the Queensland Government entitled "Smart Cities; rethinking the City Centre" dated May 2007.

[18] The town planners also prepared a table setting out the relevant development parameters for the site, sourced from the July 2007 Brisbane City Plan 2000. Mr Ovenden and Mr Buckley agreed that the parameters identified in that table were generally a comprehensive list of the relevant provisions. Mr Panaretos considered that the table was only partially relevant.

Relevant provisions in the planning instruments

[19] The town planners agreed that the July 2007 version of the Brisbane City Plan 2000 was the relevant statutory planning instrument at the date of resumption. The land is included in the Special Purposes Centre SP13-(Office Parks) area classification. This classification denotes a use of premises for an office development that provides integration with surrounding office, special purpose and residential activities.

[20] The subject site is in Precinct 3 - Riverside North in the WEWDLP. The WEWDLP contains a number of development principles that set the framework for the delineation of precincts, establish the level of assessment for development and provide the rationale for the Local Plan code provisions.

[21] Relevant development principles in the WEWDLP include -

2.5 Development is to contribute to the establishment of a boulevard along Montague Road through building setbacks, materials and landscaping.

Developments fronting the Riverside Park are to complement the existing parkland setting.

2.8 New development will enhance these parks and this riverside setting through improving access to these parks, the use of appropriate building setbacks, materials and design, and landscaping.

[22] At 3.3, the development principles specific to Precinct 3 - Riverside North include -

The ground level of buildings will provide for public right of access to the river and active plaza spaces.

Orderly development of this precinct is to be guided by a precinct structure plan. Where redeveloping or extending, major land holdings will be required to provide specific structure plans to give an indication of building bulk, scale and space between buildings and public access to the river.

[23] Paragraph 5.3 of the WEWDLP Code identifies two performance criteria and acceptable solutions which are particularly relevant to the areas of disagreement between the town planners:

(Development maintains views to Mt Coot-tha and the Taylor Ranges when viewed from the Riverside Expressway and views of the CBD when viewed from Coronation Drive)

(Development on major sites occurs in an orderly sequence and in accordance with a precinct structure plan)

(A structure plan is prepared for sites of more than 1500 m² providing an indication of building bulk, scale and space between buildings and public access to the riverside)

[24] A draft Kurilpa Structure Plan (Kurilpa 1) was published in April 2007. Mr Ovenden identified the following provisions in Kurilpa 1 as relevant to the site -

• Built Form: an important determinant of maximum building height is the desire to retain glimpsed views of Mt Coot-tha and the ranges from Victoria Bridge. Analysis indicates that by limiting building heights along the riverfront to 9 storeys, these views can be preserved. Taller buildings within the core of the study area would have little impact as these views are already blocked by the Queensland Art Gallery and State Library. The maintenance of City views from Coronation Drive is also an important consideration.

• Movement: mid-block connections where these can be created will improve the permeability of the area for pedestrians and cyclists and provide an alternative route to the main streets.

• Public Accessible Open Space: development of the riverside area needs to provide good permeability to allow a high level of physical and visible connection to the river.

[25] A second draft of the Kurilpa Structure Plan (Kurilpa 2) was published in December 2007. Kurilpa 2 provides, under the heading Views -

• Currently, the low scale building height of Kurilpa allows for views toward Mt Coot-tha and the Taylor Range from the Captain Cook Bridge, Riverside Expressway and Victoria Bridge. As the area continues to redevelop these views will be affected; however the intention is to maintain glimpsed views through the Kurilpa precinct.

Under the heading Building Heights, Kurilpa 2 provides that -

• Until a review of the West End-Woolloongabba District Local Plan takes place, the existing height limits set by the Local Plan will continue to apply within the study area. Proposals for additional height will be considered on a case by case basis subject to the indicative maximum building heights shown on the structure plan map. ... A maximum height of 10 storeys will apply to any site of less than 1,500 m².

The map attached to Kurilpa 2 shows the indicative building height in the area of the subject land as 12 storeys.

[26] The town planners agreed that the subject was a major development site and that there was more than one design outcome possible on the site. They also agreed that offices were an appropriate use for the site whereas residential development would be problematic because of nearby industrial activities. However Mr Buckley and Mr Panaretos did not rule out some residential uses because the coexistence of residential and non-residential uses is a feature of this part of inner Brisbane and is contemplated by the Local Plan.

[27] The town planners agreed that there is no plot ratio nominated for the site under the relevant Local Plan.

[28] The town planners identified the issues that remained in dispute after their meeting as follows -

1. What constitutes an appropriate response to the site's relationship to the Brisbane River, particularly with regard to the stepping down of buildings toward the river.

2. Whether a structure plan prepared for the site would result in reduced building height and bulk.

1. Whether a through link is required, and if so, what constitutes an appropriate through link.

2. The extent to which stepping of any building on the site is required to the Foggitt and Jones Factory, as viewed from the riverside and Coronation Drive.

3. The before and after sites' highest and best use, particularly their maximum development potential.

Mr Panaretos added to the list "whether an increased building height is appropriate in the context of the boulevarding of Montague Road".

[29] As the evidence unfolded, it became apparent that issue 4, the way in which the proposed development on the subject addressed the Foggitt and Jones building was not of major concern to the parties. Consequently, there is no discussion of this issue in this decision.

[30] The subject site is in the area covered by Kurilpa 1. Although the Plan was in circulation as at the date of resumption, Kurilpa 1 had no statutory force as at that date. Mr Ovenden and Mr Panaretos considered that the prudent purchaser would take the plan into account as reflecting Council's intentions for the area. Mr Buckley said that draft documents should be given weight when they have been publicly advertised or have some sort of formal acknowledgment. As the adoption date approaches, they receive more and more weight. He accepted, however, that town planners would advise a prudent purchaser of the existence of a draft plan such as Kurilpa 1 as it gave a guide to Council's intentions as to planning initiatives in the area.

[31] As Kurilpa 1 had been in circulation for some months prior to the date of resumption, I consider that the prudent purchaser as at that date would have been aware of its content and its potential impact on the subject site. The weight to be attached to this draft Plan is, however, in issue. I will defer discussion of that issue until I have considered the evidence as to the draft Plan's potential impact on the development of the subject site.

[32] Kurilpa 2 was published some 3 or 4 months after the date of resumption. That Plan indicated a building height of 12 storeys in the vicinity of the subject. Both Dr Smith (for Mio Art) and Mr Horsburgh (for Greener) suggested to witnesses that this Plan could be taken into account in determining the development potential of the subject site as at the date of resumption, because the purchaser, having acquired the site as at 31 August 2007, would not have finalised development plans by December 2007, when Kurilpa 2 was published.

[33] While it may be correct that such a purchaser would not have obtained development approval by December 2007, I do not accept that that of itself leads to the conclusion that its content can be taken into account. Section 20(2) of the Act provides that compensation is to be assessed according to the value of the estate or interest of the claimant in the land taken as at the date of resumption. This means that the prudent purchaser, as described in the quotes from Spencer set out above, must be assumed to know the relevant facts about the land as at that date. Evidence of events occurring after that date is not generally relevant to the assessment of compensation unless it is evidence which confirms a foresight held by the prudent purchaser as at the date of resumption.

[37] "Smart Cities: rethinking the city centre" is a report prepared by the Smart State Council on the initiative of the Queensland Government and published in May 2007. The report calls for the identification of a holistic vision and structure for the city centre and, relevantly to the subject land, recommends that the planning approach to the City Centre be redefined by regarding its urban growth potential as belonging to four super-precincts. Precinct 3 is identified as South Brisbane/Southbank and comprises Southbank, Kurilpa and the West End Riverside Precincts.[5] The subject land is situated in the West End Riverside Precinct.

[38] A reproduction in the Smart Cities report of the Brisbane City Council Brisbane City Master Plan study for high density Brisbane CBD shows a connection via the new Kurilpa Bridge to Southbank and, ultimately, the West End Riverside Precinct.[6] The report states that the CBD Peninsula is being challenged in its role as the core primary activity generator of the City by commercial development occurring in Fortitude Valley and South Brisbane. Consequently Council was considering permitting heights up to 20 levels in these adjoining precincts. The need to expand the CBD domain had been caused by the fact that much of the existing CBD had been built out by residential towers and by increasing demand for large floor plate offices conducive to new workplace offices for which sites are too expensive or unavailable in the CBD.[7] The report contemplates residential renewal of redundant industrial land with the emphasis currently shifting into the West End Riverside Precinct as well as internal sites in South Brisbane.[8]

[39] Mr Horsburgh submitted that the Smart Cities report gave an indication as to the infrastructure that was being considered for the subject area. This would provide information as to the commercial feasibility of the site with regard to amenity for end users and potential investors, separately from any consideration of development capacity. This was particularly important for the subject land because of its unusually large size.

[40] None of the town planners referred to the Smart Cities report in preparing their reports for these proceedings and the report was not discussed by them at their joint meetings. Mr Buckley said that the report had no weight within the statutory framework because the proposed development on the subject site was a code assessable development. The evidence indicates that the document is a high level document although it may be, as Mr Panaretos said, that long term investors and developers may be interested in it because it indicated the type of changes that might feed into the planning scheme. Given the long term nature of the report, its authors' acknowledgment that it presents "a vision of Brisbane as a centre piece for the Smart State" and the lack of weight attached to it by the town planners, it seems at best that the prudent purchaser could only regard it as indicating possible long term development initiatives. Such a person would not in my opinion consider that it was directly relevant to ascertaining the highest and best use of the subject land as at the date of resumption.

[41] Mr Ovenden's assessment of the town planning issues affecting the subject site and Mr O'Brien's design were influenced by the development approval for the subject site which was current as at the date of resumption (the Capulet approval).

[42] The Capulet approval is dated 7 July 2005 and approves a development for office purposes which was obtained when the site was included in the SP12 (Mixed Industry and Business) Area. The approval had required an application for impact assessment (generally inappropriate) development. The approved GFA was 17,560 m² with a nett lettable area of 15,658 m². The approved development consisted of 3 x 6 storey buildings and one 7 storey building. A subsequent development application made in late 2005 for a mixed office and residential development with a maximum height of 12 storeys and a gross floor area of 33,295 m² was not properly made and did not proceed.

[43] The application was initially made on 17 February 2003. Mr O'Brien said that that plan showed three buildings, 6 storeys high, an almost continuous built form along the river frontage, relatively narrow pedestrian spaces on site, vehicular access entirely from Bouquet Street with no road widening and a total GFA of 23,427 m² with a plot ratio of 2.65:1. That design was not approved.

[44] An internal Council memorandum identified the following issues:

• the bulk of the buildings to Montague Road which obscured views to the river and park vegetation - breaking the building form along this elevation and the river elevation would preserve those views and provide improved visual amenity to the street;

• the overall length of the river elevation (over 103 metres) raised similar concerns;

• the proposed building would partially obscure views to the heritage building.

[45] An Information Request issued in May 2003 said that the proposal did not meet Performance Criteria P3 having regard to the view through to the Brisbane River. The proposed plot ratio of approximately 2.66 exceeded the acceptable solution plot ratio of .35 and was assessed to result in excessive building scale and bulk and was not supported. An Urban Design Analysis was required which satisfactorily addressed the integration of the proposal with the adjoining industrial uses and the riverside interface to the north and north-west of the site. As part of this assessment a 3 dimensional model which addressed the bulk scale and height of the amended proposal was required. Setbacks of 6 metres to the riverside alignment and 3 metres to Montague Road were required. The proposal should demonstrate an acceptable solution in the provision of pedestrian access/linkage from Montague Road to and along the riverside drive parkland and the river. This should include landscaped buildings setbacks to assist in the integration of new development with the public open space.

[54] Mr Ovenden said that it was a necessary requirement that a structure planning exercise be carried out on the subject site to arrive at a reasonable outcome for the development. He said that this was a unique situation as the Local Plan did not stipulate height and setbacks adjacent to the river but instead required a developer to prepare a structure plan and submit it to the Council. He considered that the function of the structure plan was to guide building scale and mass, the space between buildings and the achievement of access to the riverside. He also said that the 2005 Capulet development approval was relevant to the preparation of the structure plan and the detailed design of a development.

[55] Mr Ovenden appended a structure plan prepared by LVO Architecture to his report which, he said, expressed the principles and provisions of the WEWDLP, applicable planning scheme codes and provisions of Kurilpa 1. It also incorporated the design principles established with the Capulet development approval on the subject site. The structure plan was supplemented with images of bulk and mass prepared for the precinct and for each of the parties' proposal.

[56] Mr Ovenden identified the key elements shown on the LVO structure plan as -

• integration with the riverfront
• a building bulk setback line to the riverfront parkland
• major view windows identified in the WEWDLP
• an open space corridor through the site to the river - with opportunity to achieve an active plaza space as well as breaking up the building form
• acknowledgment of the importance placed on protecting views to the heritage place.

[57] In accordance with those general features, LVO Architecture's development concept for the site prior to resumption showed four separate buildings on the site linked with a ground level open space and plaza areas at the end of Lanfear Street. The development has a maximum of 10 storeys scaling down to 6 storeys towards the riverfront. Vehicular access was limited to Bouquet Street consistent with the Capulet development approval and the advice from Mr Colin Beard, Council's consultant traffic engineer. By limiting access to Bouquet Street, a comfortable public pedestrian environment was created in the central plaza area.

[58] When compared with the Capulet approval, Mr Ovenden said, the design had increased the podium and tower envelopes and building height to the greatest extent possible without compromising the objectives of complementing the riverfront park setting (in terms of breaking down and scaling back building mass) and creating high quality public access to the river side and through the site.

[68] I consider that Development Principle 3.3 for Precinct 3 - Riverside North and Acceptable Solution A2 in paragraph 5.3 of the WEWDLP Code would clearly indicate to the prudent purchaser that a structure plan is to be prepared for sites of more than 1,500 m² and that the structure plan is to provide an indication of building bulk, scale and space between buildings and public access to the riverside. That conclusion is confirmed by the evidence. All the witnesses whose evidence is discussed above accepted that a structure plan was necessary for this site.

[69] The real issue is the role of the structure plan and, in particular, whether it could be used by the Council to control the bulk and scale of the proposed development and to require visual and physical permeability through the site. I consider that the prudent purchaser would conclude that that was likely, for a number of reasons.

[70] While I consider that such a purchaser would expect a development proposal that complied with specific town planning requirements to be approved, there are no express provisions in the instruments applicable to the subject site dealing with the bulk and scale of the proposed development or visual and physical permeability through the site. Mr Ovenden said that the function of the structure plan was to guide those aspects of the development. Mr Lane also accepted that the Council would retain some control over the development in relation to those issues with a structure plan. I consider that a prudent purchaser would accept Mr Ovenden's opinion in preference to the other town planners because it is evident from Acceptable Solution A2 that those issues were of concern for sites over 1,500 m². While A2 is not prescriptive as to those issues, it nevertheless has the effect that they are matters which are raised for scrutiny by Council. There would seem to be little point in A2 if it were not used by Council to guide those aspects of the developments.

[71] Further, the experience of the Capulet approval process indicates that issues such as the height and bulk of the proposed development, the integration of the development with the riverside parkland, through links and the preservation of views to the heritage building were of concern to the Council at that time and the original development proposal was modified to address Council's concerns. The planning regime has changed since the Capulet approval. Nevertheless Acceptable Solution 2 clearly indicates that the function of the structure plan is to give an indication of building bulk, scale and space between buildings and public access to the riverside.

Height, views and relationship to the riverside parkland

[72] Development principle 2.5 in the WEWDLP Code provides that developments fronting the Riverside Park are to complement the existing parkland setting. Performance Criterion P1 in paragraph 5.3 of the WEWDLP is that "Development maintains views to Mt Coot-tha and the Taylor Ranges when viewed from the Riverside Expressway and views of the CBD when viewed from Coronation Drive". Acceptable Solution A1 is that "Building height does not exceed 10 storeys".

[73] Paragraph 2.8 provides that new development will enhance the park and the riverside setting through improving access to these parks, the use of appropriate building setbacks, materials and design, and landscaping.

[74] The respondent proposed a development of 4 buildings with buildings 3 and 4 joined at levels 2 to 6 inclusive. The buildings within 45 metres of the river frontage to the site were 6 storeys and those for the remainder of the site were 10 storeys. Mio Art proposed a footprint of three buildings of 12 storeys which are joined from levels 3 to 12. Greener proposed a development of 1 building of 10 storeys along the riverfront and 12 storeys to the Montague Road, Boundary Street and part of the Bouquet Street frontage.

[75] Although the WEWDLP code indicated a building height of 10 storeys for the subject site, Mr Ovenden said that Kurilpa 1 envisaged a scaling back of development. Consistently with Kurilpa 1, Mr Ovenden considered that the Council would have applied a 9 storey limit along the whole area fronting the river, including the subject site.

[76] Mr Panaretos accepted that the effect of Kurilpa 1 was that the proposed height applicable to the subject site as at the date of resumption was 9 storeys. In terms of maintenance of views as required by the Local Plan, Mr Panaretos had not done a view analysis but he considered that the City Council had done so when it indicated in Kurilpa 2 that buildings of 12 storeys would be an acceptable solution. Mr Panaretos did not rely on Kurilpa 2 but used it to illustrate that if the height analyses had been done, they would have established that 12 storeys was acceptable to maintain the view lines as required in the Local Plan. This would have formed a basis for providing the Council with an alternative solution to a 10 storey development.

[77] I do not consider that a prudent purchaser would accept Mr Panaretos' reasoning that the fact that Kurilpa 2 has an indicative building height of 12 storeys for land in the vicinity of the subject was evidence that, if a view analysis were undertaken, the site could be developed to at least 12 storeys and comply with the requirements for the preservation of views. Kurilpa 2 acknowledges that, as the Kurilpa area continues to redevelop, the views to the CBD and the Range will be affected and, accordingly, Kurilpa 2 states that the intention is to maintain glimpsed views through the Kurilpa precinct. Thus it is clear that by the time Kurilpa 2 was published (in December 2007) the Council had abandoned the intention of preserving those views.

[89] Mr O'Brien included in his report a number of photographs of the subject site as it exists and also with the design proposals of Mr O'Brien, Mr McNaughton and Mr Lane superimposed upon it. The photographs were taken from Coronation Drive, Victoria Bridge, Cordelia and Peel Streets. The photo points (that is the point from which the photos were taken) were selected because they were locations which were identified in the WEWDLP as points from which views should be maintained. As no specific points had been identified along Coronation Drive or from Victoria Bridge in the Local Plan, the photos were from a range of different points.

[90] The effect of this evidence can be summarised fairly briefly. Perhaps not surprisingly, the evidence demonstrated that Mr O'Brien's design of 6 storeys for the riverside buildings obscured less of the CBD buildings when viewed from the specified points on Coronation Drive as compared with the buildings of 10 and 12 storeys in the other proposals. When viewed from North Quay, there was less difference between the three schemes in the degree of interference with the views of the Taylor Ranges.

[91] Mr Hinson SC tendered a table of comparative heights and structures within the WEWDLP.[10] The table showed the heights of the LVO scheme, the Mio Art scheme and the Greener scheme at both the riverfront and Montague Road ends and the heights of trees in the riverside parkland in the vicinity of the subject site. The heights are RLs (restricted or relative levels). A condition of the Capulet approval restricted the height of buildings in that development to RL 26.6.

[92] Of the existing buildings it appears that the highest point is the chimney stack on the ACI glass factory site which has an RL of 49.49. The Jacarandas in the vicinity are at RL 23. The LVO proposal has the highest point of its riverfront building at RL 28.2. Mr McNaughton's proposal is RL 49.8. Mr O'Brien said subsequently that he could not contest Dr Smith's information that the height of the Mio Art scheme was 48.5 metres not 49.8. The eaves on the GOMA building are at a height of RL 28.3 which is approximately the same height as the riverfront section of the LVO proposal. By way of comparison, the Hanson concrete batch and plant buildings, (a large scale industrial development within the general vicinity of the subject site), are at RL 29.07 and RL 29.02. They are about 1.5 to 2 metres above the riverfront part of the LVO proposal but between 13 to 20 metres below Mr McNaughton's and Mr Lane's proposal.

Conclusions re Height, Views and Relationship with the river parkland

[97] The WEWDLP Code provided, at the date of resumption, for a building height of 10 storeys for the subject land. The respondent submitted that Mr O'Brien's proposal for a development with a lower height limit of 6 storeys along the riverfront end of the subject site was an appropriate development for the site.

• Performance Criterion P1 in the WEWDLP Code that the development maintain views to Mt Coot-tha and the Taylor Ranges when viewed from the Riverside Expressway and views of the CBD when viewed from the Riverside Expressway and views of the CBD when viewed from Coronation Drive;

• the provision in Kurilpa 1 that says that an important determinant of maximum building height is the desire to retain glimpsed views of Mt Coot-tha and the ranges from Victoria Bridge. Analysis indicates that by limiting building heights along the river front to 9 storeys these views can be preserved. The maintenance of cityviews from Coronation Drive is also an important consideration;

• the Council's requirements as demonstrated in the Capulet development approval process and the ultimate outcome in that case of an approval of 3 x 6 storey buildings and one 7 storeys;

• the evidence from the photographs, together with the parties' design proposals superimposed on them, of the effect of those proposals on the specified views;

• the evidence of the comparative heights of the design proposals and the trees in the river parkland and other buildings in the vicinity.

[98] Both Mr Panaretos and Mr Buckley gave evidence that the purchaser of the subject would be entitled to obtain approval for a 10 storey development on the site. Mr Ovenden acknowledged that a building height of 10 storeys was an acceptable solution but because Kurilpa 1 which proposed 9 storeys, was in circulation as at the date of resumption, Mr Ovenden said that it was unlikely that a development above 10 storeys would be approved.

[99] I do not consider that the prudent purchaser would consider that the Capulet process and approval could be used to limit the height of the development to 6 storeys along the river front. Capulet was assessed under a different planning regime from that in place as at the date of resumption. The subject site was then in the Western Riverside Precinct within the South Brisbane Local Plan. The relevant Local Plan Code provision specified a maximum building height of 12 metres (approximately 3 to 4 storeys) above ground level with the associated performance criteria seeking to protect views and vistas. No plot ratio was prescribed. Even within that regime, buildings of 6 storeys were approved in Capulet for the riverside frontage of the subject site.

Permeability of site, setbacks, bulk/scale of development

[105] Paragraph 2.8 of the development principles in the WEWDLP provides that new development is to enhance the riverside parks and setting through improving access to these parks, the use of appropriate building setbacks, materials and design and landscaping.

[106] Paragraph 3.3 of the development principles specific to Precinct 3 - Riverside North provides that -

• The ground level of buildings will provide for a public right of access to the river and active plaza spaces.

• Orderly development of this precinct is to be guided by a precinct structure plan. Where redeveloping or extending, major land buildings will be required to provide specific structure plans to give an indication of building bulk, scale and space between buildings and public access to the riverside.

• Performance Criteria P2 provides that "Development on major sites occurs in an orderly sequence and in accordance with a precinct structure plan". Acceptable Solution A2 provides that "A structure plan is prepared for sites of more than 1,500 m² providing an indication of building bulk scale and space between buildings and public access to the riverside".

[107] Kurilpa 1 provides that -

• Movement - mid-block connections, where these can be created, will improve the permeability of the area for pedestrians and cyclists and provide an alternative route to main streets.

• Public Accessible Open Space: development of the riverside area needs to provide good permeability to allow a high level of physical and visible connection to the river.

[108] As set out above, Mr O'Brien's development concept showed four separate buildings, with a maximum of 10 storeys scaling down to 6 storeys towards the river. His design incorporates an open space between the buildings from Montague Road to the riverside parkland of 12 metres, 16 to 12 metres between the buildings at the other end of the site and 18 to 20 metres at the Montague Road frontage. This forecourt is open to the sky. There is also a plaza (12 x 14 metres) at the intersection of Boundary, Lanfear and Merivale Streets and a 9 metre plus space between the heritage building and the closest building on the subject land. There are setbacks to the riverside drive of 6 metres increasing to 12 metres at one corner, 3 metres to all other streets at ground level, zero for levels 3 and 4 and 3 metres for levels 5 to 10.

[109] At Level 2 of his design, buildings 3 and 4 are connected to accommodate those tenants who would require a larger foot plate. At Levels 7, 8, 9 and 10, the development goes from 6 storeys to 10 storeys across two of the buildings, that is approximately the back third of the site. Mr O'Brien agreed that the design could be altered to perhaps increase the floor space but, he said, that would not be a process that would be undertaken at this stage. Rather the developer would need the site under his control before starting to push the envelope a little.

[110] Mr O'Brien said that there was no definition in the Local Plan specifying the size of spaces between buildings. What would be suitable, he said, would depend upon the context and the development of the structure plan. The Local Plan referred to the need for plazas and open spaces within the site and he considered that these would be useful for people as a quick and convenient recreational space. The Local Plan did not refer to central atrium spaces but he did not consider that any internal atrium space could be substituted for an active plaza space. He agreed that his development could be described as an office park development.

[111] Mr O'Brien said that he had taken into account the requirements of the West End Local Plan relating to opening up views to the river, open space plazas, pedestrian access to the river, the relationship of the buildings to the riverside parkland and the fact that the riverside parkland and the river edge are to dominate the built form. In addition, the centre design code required a 3 metre setback at ground floor level and the local area plan required the heritage property next door to be shown off. Taking all those matters into consideration, he considered that his plan represented the highest and best use of the subject site.

[114] Mr O'Brien had also prepared massing studies of each of the architects' designs. In each study, he said, the views were from exactly the same relative position in terms of both height and plan location. He said that the massing studies were nothing other than simple computer images of the proposed buildings showing their mass and form. They did not attempt to detail any of the steps that might be taken by the architect to break down the bulk of the building.

[115] The evidence indicated that the angle and level from which the images were created affected their interpretation. For example, Mr McNaughton said that the viewpoints shown did not give a true picture of the open space between the buildings in his design. There was no sufficient evidence on that type of issue to enable me to draw any reliable conclusions.

[116] Mr McNaughton's ground floor plan shows three buildings with a centre courtyard and concourses either side of that courtyard leading to the riverfront and Montague Road. The central courtyard is 40 m x 30 m with concourses varying in width between 10 metres at the river frontage and 9 metres at the Montague Road end to 7 metres. The courtyard and concourses are open for 2 storeys and thereafter the concourses are bridged between levels 3 to 12. Although the building footprints in Mr McNaughton's design resembled those of the Capulet concept at Levels 1 and 2, the connection from Levels 3 to 12 of all of his buildings is not a feature of the Capulet design. There are setbacks of 6 metres to Riverside Drive, 3 metres at the ground floor level on the other street frontages, nil at levels 2, 3 and 4 and 3 metres at levels 5 to 12.

[117] Mr McNaughton confirmed that his design proposed a site which is open at all hours between buildings 1A, 3A and 2B and 3B. That concourse runs through into the central courtyard and the central courtyard is an area of Lanfear Street that is open 24/7. The concourse averages 9 metres wide. There is also a pedestrian flow path between 1B and 1A which is open during office hours.

[118] Mr McNaughton identified eight key elements which he saw as representing the major differences between himself and LVO and which led to the cumulative difference in the plot ratio and gross floor area of the different designs. The eight elements, listed in approximate order of reducing importance, are -

• Building height adjoining river park

• Overall building height

• Variations in width of spaces between buildings

• Variations in building setback dimensions from alignments

• Three metre wide road resumption in Bouquet Street

• Setback to the Foggitt and Jones heritage building

• Reduction in LVO's building 4 ground floor area due to above ground truck service area

• Significant insets to the façades of the LVO buildings 2 and 3-4.[11]

[119] Item 1 is the building height adjoining the river park - Mr McNaughton had calculated that the effect of Item 1 was in the order of 10,000 m² difference between the two proposals. Item 2, overall building height, caused a difference of 11,000 m². The third item, variations in width of spaces between buildings, resulted in nearly 10,000 m² difference. That is about 30,000 m² in total, and the difference between his and Mr O'Brien's scheme was approximately 32,000 to 33,000 m².

[128] Mr Lane proposed a single building with an atrium 5.5 metres wide extending through the height of the building. Mr Lane acknowledged that visual permeability of the site and accessibility to and from the site was desirable. This was achieved in his design with the treatment of the ground floor plane with the building set back at 9 metres, with a 6 metre setback commencing at first-floor level and then tapering to a 3 metre setback overall at the upper level. The setback at ground level provided ample opportunity, Mr Lane said, for visual linkages between Montague Road and the river and across the site between Bouquet Street and Lanfear Street.

[129] At ground floor level there are 6 separate office buildings with significant open space between each, which, Mr Lane said, envisaged pedestrian participation in the ground floor plaza drawing interest into the lobby's volumetric atrium space. The spaces between office buildings on the ground floor level would be closed outside business hours.

[130] Mr Lane's design envisaged access to the river via Bouquet or Lanfear Streets. Part of the reason he had sought to open up the ground floor was to encourage people to come to the building and enjoy the ambience in and around the building. Mr Lane said that the public would be encouraged to do that as much as possible. He considered that he had complied with the intent of the precinct that referred to ground level buildings providing a public right of access to the river.

[131] Mr Lane said that there was no reference in the WEWDLP to a requirement that there be a pedestrian access corridor through the subject site. By contrast, the WEWDLP talked about access to the river through both the ACI and the Parmalat Multiplex sites. He had a personal and professional view that activation of ground floor planes of large buildings should occur at the perimeter to engender a sense of social interaction. To this end he set the building back at the ground plane some 9 metres. The code only required a setback of 3 metres but he was aware of the volume of people who would be ultimately occupying the building and also of the potential for the building to engender pedestrian traffic flow on either side.

[132] Mr Lane said that the "open to the sky" link was a requirement in another part of the WEWDLP and did not refer to the subject site. Because his building was stepped back from the surrounding streets by 9 metres at the ground plane and canted out, it provided protection, shade and an enveloping sense as well as visual interest and substantial openness to the sky. Mr Lane considered that his design had far more openness to the sky than the other schemes because it added on to the existing public thoroughfares on the perimeter of the buildings.

[142] There is no designated GFA or plot ratio applicable to the subject site in the planning instruments. Table 1 of the Centre Design Code provides that where no Local Plan or centre concept plan specifies the maximum growth floor area in a special purpose centre the maximum GFA is not to exceed .35 times the site area. It was generally agreed that this was unrealistically low for the subject site but that Council could use the requirement to retain control over the approval process and that a proposal for a higher GFA would need to be justified.

[143] Kurilpa 1 provided that development capacity was calculated on the following provisions:

• Building heights up to 9 storeys adjacent to the river and up to 16 storeys within the core of the study area.

• The estimated development capacity of the Kurilpa area is 224,000 m² (approximately) of non-residential floor space by 2026.

[144] The respondent proposed a GFA of 34,175 m² and a plot ratio of 3.87:1. Mio Art proposed a GFA of 66,579 m² and a plot ratio of 7.54:1. Greener proposed a GFA of 71,750 m² and a plot ratio of 8.13:1.

[145] Mr Ovenden said that the WEWDLP reflected a conscious decision by Council not to extend the CBD into the South Brisbane area. The CBD has a Multi Purpose Centre designation which provides the planning framework for the hierarchy of retail based centres in the City. The subject land area is designated Special Purpose Centre 13 (SP 13) - Office Park and the City Plan stipulates that Special Purpose Centres are not to take on the role of a Multi Purpose Centre unless this is specifically provided for in a Local Plan. In Mr Ovenden's opinion, the WEWDLP, particularly where the subject is located, did not seek to take on the role of the CBD with its associated high intensity development.

[146] Mr Ovenden's opinion was that the intention of Kurilpa 1 was that transit oriented development principles would consolidate the core area of activity around the bus station, the train station and Southbank. Consistently with that intention the Council had, in recent years, approved a number of relatively intense commercial developments, generally in the wedge around Boundary and Melbourne Streets with the focus on the South Brisbane railway station, closer to the core area than the subject. That would then transition out in intensity of development to West End and the river. That intention should be taken into account in informing the form, intensity and consequently the gross floor area of any development on the subject land.

[148] Mr Ovenden's opinion was that this table demonstrated a pattern of plot ratio which, in general terms, decreased as allotment size increased. He had formed the view that it was unrealistic to achieve a plot ratio in excess of 7, as proposed by Greener Investments and Mio Art, on an allotment size of 8,825 m² (the subject site) in this part of the City. Such a plot ratio created a bulky built form which was an overdevelopment of the site.

[149] Further, each of the claimants' proposals contemplated a development which would constitute a third of the development capacity intended for the whole area and, in Mr Ovenden's opinion, this also was completely contrary to the Plan.

[150] Mr Horsburgh suggested to Mr Ovenden that the developers of the Ausenco site had increased their proposed development from 5 to 8 storeys and he asked whether that sort of permission was common in a shifting aggressive town planning environment. Mr Ovenden thought that Kurilpa 1 would have encouraged the developer to go higher on that site. He considered that the Ausenco plot ratio of 4.11 to be appropriate for that site because the development fitted into the adjoining development within the street. However, he said, each development needed to be considered within its context. It was not possible to apply the ratio achieved in Ausenco directly to the subject site because of the difference in size of the two sites. Ausenco is 3,557 m² compared to the subject which is approximately 8,825 m².

[151] Mr Horsburgh also referred Mr Ovenden to a town planning report that he (Mr Ovenden) had prepared in respect of the Parmalat site at 94 Montague Road. This site was resumed by the Council and the development did not go ahead. Mr Ovenden had suggested, in conceptual terms, that a GFA of 11,090 m² (plot ratio 6.93) could be achieved. Mr Ovenden said that he had given the advice before the issue of Kurilpa 1. The site was 1,600 m² which was not comparable with the subject site of 8,800 m² or the Parmalat Multiplex site of 1.6 ha. The proposed development was a 10 storey building. He considered that such a development would be consistent with other developments nearby, in particular 35 Boundary Street where the plot ratio was 5.

[152] Mr Horsburgh suggested to Mr Ovenden that, rather than taking a broad view of what was occurring in Brisbane, Mr Ovenden had concentrated on the subject site to the point of having a structure plan on it and pedestrian access through it, even though the broader scheme showed much larger sites without those access routes and, accordingly, that Mr Ovenden had become blind to the larger principles. Mr Ovenden rejected that analysis again repeating his view that commercial office development was to be concentrated in the area in close proximity to the rail and bus stations and along the major roads in the hierarchy.

[162] Mr Lane said, more than once, that the subject land was an important site in the Kurilpa area, and that it provided the opportunity to design a building of significant status and difference, a leadership project, an important building. In his report he said that "our clients considered themselves to be 'visionary' and that they were keen to explain the benefits of such design principles."

[163] Mr Hinson SC asked Mr Lane whether it would be correct to say that Mr Horsburgh was a visionary client who was prepared to be bold and innovative and that Mr Lane's scheme was designed accordingly, in the hope that Mr Horsburgh, as the vendor of the site, could persuade a purchaser to share the vision. Mr Lane said that that was not entirely correct because even before he had a briefing with his client he had done a lot of analysis from first principles looking at what he believed the site deserved irrespective of the identity of the client. The fact that he saw this as an opportunity to establish a landmark building in the area did not mean that had he chosen a more conventional design, he would have come up with a GFA that was dissimilar.

[164] Mr Lane acknowledged that he was required to look at what a reasonable person might consider to be the highest and best use of the site. However, he said in his report that an owner/developer who purchased the site would be seeking to achieve near maximum development potential within the regulatory framework. He saw a difference between a hypothetical client and an owner/developer where there was an existing embedded interest in the project - they might have different wants or needs. In his view it was up the courts to determine what weighting if any to put on that difference. He said that he was trying to take a view on what the implication might be on both sides because he was aware that there was already an owner of this property and that his client had an interest in that. Equally he said, he had advised his client on a number of occasions that he would not support some suggestions because he believed that they would be beyond what was reasonable.

[165] Mr Lane has proposed a single building with a GFA of 71,750 m² and a plot ratio of 8.13:1. That is to be contrasted with the designs proposed by Mr O'Brien and Mr McNaughton. No structural plan was prepared. Mr Lane appears to have relied on his knowledge of the area derived from the earlier urban planning work he had undertaken. While Mr Lane had been advised by Mr Buckley that his proposal was code assessable, Mr Buckley gave very little weight to the references in the planning instruments to active plaza spaces, public access to the river, building bulk, scale and space between buildings in A2 and, it seems, to the references in Kurilpa 1 to mid-block connections and permeability. Mr Buckley also seems to have given no weight to the fact that the requirement in the Centre Design Code of a plot ratio of ·35 could be used to control the density of development. The building does not respond to the definition in City Plan of SP13, Office Park, which denotes a use of premises for office development that promotes integration with surrounding office, special purpose and residential activities. The centre design code, P7 also refers to promoting integration with the surrounding area and the rest of the centre. Rather, Mr Lane appears to have sought to internalise the community so that it was self-contained with minimal interaction with the outside world. The building does not respond to the references in the planning instruments to issues of bulk and scale and space between buildings, on sites more than 1,500 m². While there is public access to the river around the perimeter of the building and along the adjoining roads there is no public access through the site outside office hours. In my opinion, the building represents an over-development of the site and the prudent purchaser could not reasonably expect that the development would be approved.

Conclusions about permeability, bulk/scale of development and GFA

[167] I have come to the conclusion that the reasonable purchaser would expect Council to require that a development on the subject site provide physical and visual permeability through the site because of the provisions in the planning instruments, the weight of the evidence, the history of the Capulet approval, and the bulk and scale of the proposed development.

[168] The planning instruments provide that development is to enhance the riverside parks, improve access to the river and provide a public right of access to the river. A structure plan is to be provided for sites over 1,500 m² which gives an indication of building bulk, scale and space between buildings and public access to the riverside. Kurilpa 1 provides that mid-block connections will improve permeability of the area for pedestrians and development of the riverside area needs to provide good permeability to allow a high level of physical and visible connection to the river. While Kurilpa 1 was not a binding instrument, I have indicated previously that I consider that the prudent purchaser would be aware of its content as at the date of resumption and take it into account as a reflection of Council's attitude to the matters covered by it.

[169] Both Mr O'Brien's and Mr McNaughton's designs showed a footprint of 3 buildings at ground level on the subject site. Mr Lane showed one building. Mr Ovenden considered that pedestrian access through the site was necessary pointing out that permeability of the site was an issue with the Capulet approval. He therefore did not consider that it would be sufficient to rely on the existing road structure to satisfy Council's requirements for the provisions of public access to the river. Mr McNaughton and Mr Panaretos said that it was not necessary to maintain public access through the site because the adjacent roads provided access and, Mr McNaughton said, there was no access shown on the Local Plan West End Riverside Structure Plan. However Mr McNaughton considered that pedestrian access through the site was a desirable outcome.

[170] As well as the evidence of Mr O'Brien, Mr Ovenden and Mr McNaughton that pedestrian access through the site was at least desirable, there is the evidence of the Capulet approval. It is clear from both the information request issued during the approval process and the final consent order that maintenance of access through the site was required. Further, the bulk and scale of the development as originally proposed was not accepted for reasons which included the obstruction of views through to the river and the requirement to provide pedestrian access. There was nothing in the evidence to indicate that Council would adopt a different attitude to the provision of visual and physical access through the site and the bulk and scale of the development.

[175] There were differences in the design proposals of each party concerning the location of vehicular access to the developed property, the location of a truck loading area and car parking and the number of car parks and, to a lesser extent, the way in which each proposal addressed the adjoining heritage site.

[176] I have not discussed this evidence in detail because the effect of the evidence was that these were not matters which were crucial to the central issues in this dispute. I have accepted Mr Buckley's opinion that, in a development of this type, matters such as traffic, loading garbage etc are matters where negotiation with Council is necessary, but they are rarely matters that prove fatal to approval.

[177] For the reasons set out above, I consider that the prudent purchaser would conclude that, as compared with the other designs, the respondent's proposed design more closely resembles the type of development that would receive Council approval.

[178] However, such a purchaser would expect approval for a development averaging 10 storeys across the site. The evidence is sparse, but Mr McNaughton said that he had calculated the major differences in GFA between his and Mr O'Brien's designs. He said that the difference attributable to the different riverfront heights was about 10,000 m². His proposed development showed a 12 storey building in that area whereas Mr O'Brien's shows 6 storeys. Using the 10,000 m² as a base, I consider that if Mr O'Brien's development were converted from 6 to 10 storeys, an extra 6,000 m² GFA (approximately) would result.

[179] There was also evidence indicating that Mr O'Brien's design shows generous spaces between the buildings and that there may be room for increased GFA in his proposal. That evidence has led me to conclude that the prudent purchaser may consider the design to be conservative in this regard. There was no specific evidence quantifying the impact these matters may have on the GFA. However I consider that, doing the best I can, the prudent purchaser could reasonably expect a design to be approved with an additional 10,000 m² GFA including the extra 6,000 m² resulting from the increased height, as compared with Mr O'Brien's design.

[180] The resulting GFA would be approximately 44,000 m² and give a plot ratio of 4.98:1.

[181] This is not inconsistent with the development application made concerning the Parmalat Multiplex land, in the vicinity of the subject. The transaction and development application concerning that land are discussed in detail below as part of my consideration of the valuation evidence. The respondent's evidence was that an achievable GFA of 16,893 m² for that site was approximately 80,000 m² or a plot ratio of 4.74:1. Given that the Parmalat and Multiplex site is twice the size of the subject land, I consider that the prudent purchaser could reasonably expect a plot ratio of at least that amount for the subject, so that a plot ratio of 5 could be regarded as reasonably achievable.

[182] Valuation evidence was given by -

• Mr LB Johnston, a registered valuer of Johnston and Company Pty Ltd, on behalf of the respondent;

• Mr J Robertson, a registered valuer of Landsburys, on behalf of Mio Art; and

• Mr Jamie Horsburgh, director, representing Greener Investments.

[183] During the course of the hearing, these three witnesses met and identified a number of areas of agreement and disagreement. They were agreed that -

• the before and after method was the appropriate method for assessing compensation;

• the sale price of the residual land to Multiplex was the appropriate value to use to establish the value of the property after resumption.

• widening and construction of Bouquet Street had been carried out by the Council post-resumption;

• a holding rental of $240,000 per annum was being paid to Multiplex by the Brisbane City Council for the use of the balance land post-resumption;

• the purchasers of the residual land were aware at the date of sale that the Council would continue to occupy the land until at least 30 June 2010;

• a capitalisation rate of 6.5% to 6.75% was an appropriate range to adopt in the residual approach for the LVO scheme. No agreement could be reached on the appropriate capitalisation rate for the other two schemes.

• the market for office buildings at the relevant date was strong;

• the residual approach was an appropriate check method;

• there was agreement on the factual matters regarding the comparable sales such as sale date, price, land size, parties involved.

[184] The areas in disagreement were

• There was disagreement about 0.35 being the applicable plot ratio for the subject site. Mr Robertson and Mr Horsburgh indicated that it was their understanding that there was no plot ratio under the Local Plan and if there was a conflict with other plans the Local Plan prevailed.

• It was not agreed that the Parmalat Multiplex contract was a sale.

• There was general disagreement as to the appropriate GFA to be taken into account.

• There was general disagreement as to the correct rate per square metre to apply to the net lettable area for each architectural scheme in the hypothetical development/land residual approach.

• There was general disagreement as to the application of the comparable sales by each valuer.

[185] Mr JM Horsburgh is a director of Greener Investments, and appeared on behalf of Greener Investments at the hearing of this matter and gave evidence in relation to the value of the subject land. Mr Horsburgh is not a registered valuer but he has acquired knowledge of the value of property and the market for properties through his occupation as a developer and investor. Mr Horsburgh said that most of the information that he had presented in his valuation report was factual information which he wished the Court to take into account. However he believed he also had some experience that would lend weight to his opinions. He said that he had attempted to be as impartial as possible, which he realised was very difficult for an interested party.

[186] Mr Horsburgh said that he had studied the text book by Hyam on valuation and had carried out other research at the Brisbane City Council which included some fairly lengthy valuations of urban land. He confirmed that companies that he has been associated with have carried out developments to the point of taking them through the development application stage but he has not been involved in construction. He had engaged valuers in the past, when acquiring land or lending money on the security of land, because it was a requirement of the funding institution. He had never carried out an exercise of this nature at such length previously. He had had occasion to look at the value of properties and to do the research and determine what he thought the property was worth. He had done this more intensely when selling and he referred in particular to his properties which were on the market at the time. He had also acquired residential properties in the past, and some commercial developments, without engaging a valuer. He did not claim to have the expertise of the registered valuers.

[188] Mr Johnston adopted two approaches to his valuation - his primary method was based on a rate per m² of land area direct comparison and he used a residual land exercise as the check method. He valued the property in the before case at $2,500.00 per m² of land or $645 per m² GFA giving a total of $22,062,500.

[189] Mr Robertson valued the subject land in the before case on a rate per square metre of GFA. He adopted a rate of $675 per m²/GFA and, using the estimated GFA for the subject as determined by Mr McNaughton, 66,579 m², Mr Robertson valued the subject land at $44,950,000 (rounded).

[190] Mr Horsburgh estimated the value of the subject land in the before case at $48,537,500. He relied on the direct comparison method of valuation using both the rate per square metre of land and rate per square metre of GFA bases. He adopted a rate per square metre of land of $5,500 and a rate per square metre of GFA of $850.

[191] Mr Johnston used a rate per square metre of land to value the land in the before case. Mr Robertson used a rate per square metre of GFA saying that he considered that to be the most appropriate comparable approach because it encapsulated the development potential of the site. Mr Horsburgh's methodology is discussed below.

[192] Mr Robertson rejected the suggestion that a rate per square metre of land area was a better method of valuation than a rate per square metre of GFA where there is a sale of land which does not have a development approval in place. He said that, where there is significant advice available as to the appropriate GFA under a code assessable application, a purchaser would have to be reasonably confident as to the development potential of the property because there was significantly less risk in such an application than in an impact assessable application. He did agree that once a development approval had been given, it would be known what the GFA was but if there were no development approval in place, a developer would not have the same degree of certainty about the GFA.

[193] Mr Johnston did not agree that a valuation based on a rate per square metre of GFA should be used as a prime method unless the relevant property has achieved an approval for a Material Change of Use (MCU), where there was no risk involved. If there were no MCU, Mr Johnston said, there was major risk in using GFA calculations, particularly where there are complicated town planning issues involved, because the Council may not approve the GFA for that site.

[194] In my opinion the prudent purchaser would consider that a rate per square metre of GFA should not be used for this valuation. One of the central issues in dispute in these proceedings concerns the development potential of the subject land. That reflects the uncertainty that can attach to the development approval process. Similarly where there is no approval in place for a sale property as at the date of sale, there is uncertainty as to the development potential of the site. That being the case, it would be reasonable for the prudent purchaser to adopt a valuation methodology based on a rate per square metre of land because it provides a more reliable guide to the value of the subject land.

[195] Details of the sales that were common to all or some of the parties are set out below. Mr Johnston adjusted his analysed figures on a comparative basis to allow for various differentials between the properties such as demolition costs, Council headworks, contamination charges, piling costs and GST to reach an adjusted sale rate per square metre of land and per square metre of GFA, using the LVO scheme for the latter purpose. Mr Robertson did not make these adjustments. It appears that he had been engaged just prior to the hearing and had carried out his valuation in about a week. Mr Horsburgh did not make these adjustments because, he said, the sites he had chosen were sufficiently similar to and with the same issues as the subject. He regarded plot ratio as a much more significant difference between the sites.

[196] I accept that the adjustments should have been made to enable the properties to be compared on the same basis.

[197] 144 Montague Road, South Brisbane: This is the Ausenco site which was common to all parties. The property sold for $7,500,000 on 11 May 2007 and there was an onsale on 3 December 2007 for $13,010,000. The structures on the site were demolished and a five level commercial development with a GFA of 14,988 m² was underway at the time of the hearing. Mr Johnston analysed the sale to a rate per square metre of GFA of $500.40 and a rate per square metre of land area of $2,107.92. Mr Robertson analysed the sale to $2,108/m² land and $508/m² GFA.

[198] Mr Johnston commented that the sale site was inferior to the subject because it was not on the river although it was envisaged that some river and City views would be available from the upper floor of the development.

[199] There was a resale of this property in December 2007 for $13,010,000 by which time the property had been preleased to Ausenco. Mr Johnston said that the first sale was more relevant to the subject site because, at the time of that sale, there was no development approval in place. The second sale was a package where there was an 8 year guaranteed cashflow. His investigations had also revealed that an incentive was involved in the preleasing. By comparison the subject in the before case had an approval for a 6 storey development as discussed at some length previously.

[200] Mr Robertson also considered that the first sale of Ausenco was the more relevant. He agreed that the sale was inferior to the subject in terms of location and development but said that it was a useful sale because it fell within the same Local Plan as the subject. Its proximity to the subject was also helpful in terms of the locational factors and the sale took place about the right timeframe in the market. He had used the second sale in a similar way as his sale 4, the Edmonstone Street sale, namely to give an upper limit for a lower risk project.

Mr Robertson said that he had only used the sale to look at the upper limit of a low risk or no risk site. It was similar to the second sale at 144 Montague because both were low risk.

[210] Mr Johnston valued the subject site in the before case on the basis that it was best suited for commercial office development. He noted that on the eastern boundary of the site in the before situation an existing rail line generated a high degree of noise (a decibel level up to 87). The railway line would also limit the outlook of certain floors of the proposed development. The riverfront location would have been an attraction to the market place. The issue of public transport was one that required investigation due to the numbers of people using the proposed building.

[211] As the before development was very large, the leasing take-up would be of concern and it was likely that preleasing would be a prerequisite to development. From his examination of leasing take-up and potential developments in the location of the site, Mr Johnston concluded that there was a potential oversupply of commercial accommodation in the area of the subject land.

[212] In the after situation, Mr Johnston said, the balance area may be injuriously affected by both onramps to the bridge, and accordingly additional noise abatement steps may be necessary. However there was also some enhancement in the after situation because the location of the site would allow easy access to the site and to the City centre.

[213] Mr Johnston relied on six transactions for the purpose of his direct comparison valuation. The first of those transactions was a contract for the sale of land at 98 Montague Road, South Brisbane, the Parmalat Multiplex contract, which did not settle. The use to be made of that contract was a matter of dispute between the parties and this issue is discussed further below. The remaining five transactions relied on by Mr Johnston were completed sales. Mr Johnston analysed each of his sales to a rate per square metre of land and potential GFA and adjusted the figures as described above.

[214] The table below sets out brief details of the transactions other than the three sales described above.[12]

[215] Mr Johnston considered that the most comparable sales available for comparison with the subject property were those situated at 98 and 144 Montague Road, South Brisbane. As the properties were located in close proximity to the subject property with similar planning constraints (although there was some variation for 144 Montague Road), a close comparison could be drawn between the sites. Mr Johnston considered that they demonstrated the market place interpretation of the potential of the location.

[216] Mr Johnston said that a prospective purchaser of the subject site would conclude that there would be a medium to high risk involved in achieving a GFA beyond that demonstrated in the transactions at Montague Road, as the price paid was consistent with a purchaser's opinion as to the potential for each site. If the price paid were based on the possibility that the GFA would exceed 4, the purchaser risked financial exposure because that GFA may not be achieved.

[217] Mr Johnston's Sales 2 and 3 are common to Mr Robertson and Mr Horsburgh. Mr Johnston's Sale 6 is Mr Robertson's Sale 4. Those sales are considered below.

[218] This contract contained a clause whereby the contracting parties agreed not to disclose any confidential information relating to the provisions of the contract, the negotiations relating to the contract and the performance of the contract.

[219] A copy of the contract was produced to the Court, and is the subject of a restrictions order made by the Court on 18 November 2008. The parties and relevant witnesses were given access to the contract for the purpose of these proceedings and subject to undertakings signed by them that they would not disclose its content. Subject to hearing the parties' submissions, it is proposed to restrict publication of the sections of this decision dealing with the details of this contract as specified in the orders made at the time of delivery of the judgment.

[220] The Parmalat Multiplex site is situated at 98 - 128 Montague Road, South Brisbane, in the vicinity of the subject land. A contract of sale of the site between Parmalat Australia (vendor) and Multiplex Montague Pty Ltd (purchaser) was executed on 6 November 2007. The contract was not completed and was rescinded by agreement.[13]

[221] RESTRICTED

[222] RESTRICTED

[223] This contract was Mr Johnston's prime indication of value in the location. He relied on the contract because the Parmalat land was located directly opposite the subject property, although it was a large site, nearly twice the land area of the subject. The majority of the Parmalat land is in the same precinct as the subject land. Use of this transaction removed the need to make the adjustments that would be necessary when one goes outside the area. Mr Johnston said that, by comparison with the subject, the Parmalat Multiplex site had no river frontage but that city and river views were envisaged from the fourth level of the proposed development. In general terms the Parmalat Multiplex site was inferior to the subject because of the lack of river frontage.

[224] RESTRICTED

[225] RESTRICTED

[226] Neither Mr Robertson nor Mr Horsburgh relied on this contract and Mr Johnston's use of it in his valuation was trenchantly criticised by the other parties for a number of reasons.

[227] Dr Smith suggested to Mr Johnston that the transaction was not a genuine contract but a put and call option.

[245] Mr Robertson's most comparable sales were the sale of the residual site and the sale at 144 Montague Road - his sales 1 and 2.

[246] The sale of the residual land: Mr Robertson relied on the sale of the residual land as his primary evidence of value. The residual land was sold in October 2007 for $9,000,000 to Multiplex. In analysing the sale, Mr Robertson adopted the LVO density for the site, namely 18,380 m² GFA (a plot ratio of 5.7). He analysed the sale price to approximately $2,830 per m² of site area and approximately $490 per m² of GFA. Mr Robertson adopted a rate of $675 per m² of GFA for the before value of the subject land which, he said, equated to a 30% increase (approximately) on the rate applicable to the sale of the residual land. He disagreed with the proposition that, if a developer paid $675/m² GFA, there would be no profit in the development. Mr Robertson said that it has to be assumed that the vendor is knowledgeable and willing etc and that that person will not give the land away.

[247] Mr Robertson considered that the sale of the residual site was the most comparable with the subject property because the site was sold within the same period of time as the date of resumption, although it was a distressed sale. While some adjustment was necessary to apply the sale to the subject land in the before case, that adjustment was nothing like the adjustments required for the other comparable sales.

[248] In applying the sale, Mr Robertson made an adjustment of 10% to take account of the forced nature of the sale and a further adjustment of 30% to allow for the impact of the injurious affection on the residual land caused by the construction of the public works, as compared with the before subject. His calculations were -

Apply a 10% allowance for a distressed sale ($490 x 1.1) = $539

Adopt a 30% allowance for the injurious affection ($539 x 1.3) = $700.

He then reduced the rate per square metre of GFA from $700 to $675 to take account of the enhancement that the Hale Street link would bring to South Brisbane in terms of improving the commercial attractiveness of the area.

[249] Mr Robertson considered the sale was a distressed sale because it was sold by a mortgagee in possession. When asked to explain why, if the sale at $9,000,000 represented market value as agreed by the parties, it mattered whether the vendor was a mortgagee in possession or anyone else, Mr Robertson's response appeared to be that it was a distressed sale because it was a mortgagee sale. In the end he said that he did not consider that the $9,000,000 was strictly market value and that the price should be uplifted by a factor of 10% to $9,900,000.

[250] Assuming the use of the sale of the residual land as evidence of value, I do not consider that Mr Robertson's allowance of 10% for the distressed nature of the sale is legitimate. Such an allowance is contrary to the agreed position of the parties that the sale price of $9,000,000 represents the market value of the property.

[251] Mr Robertson said that his 30% adjustment for injurious affection was a judgment and reflected his opinion of the value of the site if it had not been injuriously affected. He considered that the figure was probably conservative. A number of factors adversely affected the balance site post resumption, Mr Robertson said.

[252] One significant factor was the Hale Street Bridge road infrastructure and the additional noise that would be generated by the road traffic. He had no acoustic information as to the additional noise. The road elevations would impact on city views from the site although he conceded that to some degree at least, those views would have been obstructed by the GOMA building. The resultant irregular configuration of the site post resumption was less efficient than the original site. Moreover the residual land had less river frontage.

[253] An area of land along Bouquet Street was included in the resumption for road widening purposes. Although this meant that the owner would not have to dedicate part of the land for that purpose nor incur the associated costs, Mr Robertson considered that, on balance, the loss was greater than the gain. The owner had suffered the loss of the land and the opportunity to offset contributions and negotiate additional GFA, if road dedication had been required.

[254] As at the date of sale of the residual land there was a moratorium on development of the site until 30 June 2010 because the Brisbane City Council was leasing the site for construction purposes. Mr Robertson considered this to be a double edged sword because, although the purchaser had the benefit of a holding income while obtaining development approval, it would not want the site to remain undeveloped for three years, given the purchase price and the strength of the market. He did not accept that it would have taken three years from the date of resumption to obtain development approval.

Rate per square metre of land shown by sale = $2,828

[259] There is no other sales evidence which supports a price of $3,547/m² of land for the subject in the before case, leading to the conclusion that this value is high. This may be because the allowances for injurious affection and enhancement are inaccurate. While I consider that the sale is relevant, I do not consider that too much weight should be placed on the sale applied in this way.

[260] 35 Boundary Street, South Brisbane: This property is Mr Robertson's sale 5. The property is 1,567 m² in area and sold in September 2006 for $2,750,000. Mr Robertson analysed the sale to $1,755 per m² of land and $516 per m² of GFA. At the date of sale a development approval was in place for a 5 floor commercial building with 5,430 m² of GFA.

[261] Mr Robertson said that the sale should be adjusted for the date and the fact that there was a development approval in place. It was also a small site. However, because it was a sale in close proximity to the subject, it was not a sale which should be ignored.

[262] Mr Johnston had not used this sale in his valuation but he was aware of it. He agreed with Mr Robertson that the sale was, overall, inferior to the subject.

[263] Mr Horsburgh approached the valuation by selecting sales in his area of comparison which were the urban renewal areas stretching from Highgate Hill and West End, through the CBD to Fortitude Valley and to Newstead. To that end he identified sales of development sites located in the urban renewal area within a 3 km radius of the Brisbane CBD.

[264] The features of the subject land emphasized by Mr Horsburgh in his oral evidence were that it was river front land (although there was a buffer between the land and the river) and it was an "island site". He saw a commonality with large development sites where developers were seeking to put together a large island of space that then relaxed the town planning environment because neighbours were not involved.

[265] Mr Horsburgh chose as his sales, properties which have characteristics similar to the subject site. The best sales, he said, were large sites in traditional industrial use areas with multi-staged high density commercial office development proposals. His selection of comparable sales was dictated by the size of the land and the development capacity and he also had regard to construction costs and market rents. In Mr Horsburgh's opinion, the productive capacity (plot ratio) of a particular site was the primary consideration which a purchaser would have in mind at the time of purchase.

[266] Mr Horsburgh had therefore chosen plot ratio as the crucial feature in his sales reconciliation. He thought that, rather than looking at smaller adjustments such as for contamination and piling infrastructure charges, the most significant point of difference was the productive capacity or the plot ratio differential.

[267] Relying on the reports by Thomson Adsett Architects and Buckley Vann Planning Consultants, Mr Horsburgh had determined that the maximum code assessable plot ratio for the subject site was 8.1:1. However, for the purpose of his valuation report, he adopted a plot ratio of 7. This was in recognition of the unique characteristics of the land - a very large undeveloped site in a high density planning precinct. He was also aware that in moving from the CBD towards either West End or Newstead there was a general town planning approach of reducing the plot ratio as the size of the sites increases in the industrial areas. Rather than reducing the dollars per GFA down to account for that, he considered that the more realistic approach was that a developer would adopt a smaller plot ratio of, in this case 7.1. All his discussions with development managers of the comparable sales properties showed that development capacity was the crucial issue.

[288] Mr Hinson SC tendered a copy of an email report, apparently commissioned by Greener Investments, from a Mr Horrigan, a valuer, who determined the before value in the order of $22,000,000 and the after value at around $9,000,000.[18] Mr Horsburgh pointed out that the valuation was clearly premised on the sale of the Parmalat site and its treatment as a valid sale. He said that at that time Mr Horrigan had not been informed that the Parmalat contract was not on foot. Mr Horsburgh saw the email as being the result of pressure that he had put on Mr Horrigan for an answer, because of his (Mr Horsburgh's) financial situation.

[289] Mr Hinson SC also tendered copies of two reports by Mr Greg Clarke, valuer. In the first report Mr Clarke assessed compensation at $15,800,000. In his second report, which is in draft form, he assessed compensation at $21,500,000. The direct comparison was carried out on a gross floor area basis.

[290] Mr Horsburgh said that because of the time pressures Mr Clarke had produced an initial draft and had told Mr Horsburgh subsequently in a meeting that there was a mistake at p.38 in his residual land calculation in that he had not applied the GFA rates that he had reconciled from his sales evidence through to his assessment of value. Mr Horsburgh believed that that was due to the haste with which Mr Clarke had done the calculation. Mr Clarke then corrected the draft.

[291] Mrs Amanda Horsburgh gave evidence about the pressures that she and her husband were under because of their financial difficulties and the time constraints imposed by the Court. She said that they had been let down by Mr Horrigan, their original valuer who had pulled out and had, in his email, given advice contrary to what he had said verbally to themselves and to Mr Clarke. Mr Horrigan's verbal advice was that they were talking about rates of $800 odd per square metre of GFA, whereas, in his email, his opinion is a rate of around $270 per m² of GFA based on a plot ratio of about 8. She said that the Horsburghs had no idea that they could have subpoenaed Mr Clarke and Mr Horrigan to give evidence.

[292] I do not consider that I can attach any weight to the evidence of Mr Horrigan's and Mr Clarke's opinions as to the value of the subject land as neither valuer was called to give evidence in support of the valuations.

Residual land/hypothetical development valuations

[293] All the witnesses who gave valuation evidence undertook a residual land exercise as a check method of valuation, although both Mr Robertson and Mr Horsburgh emphasized the variations that would result from changing the inputs. It is well recognized that such a valuation methodology is not ideal because of those issues. In this case, I have decided that the prudent purchaser could reasonably expect that Council would approve a development with a GFA approximately 10,000 m² larger than the proposal put forward by the respondent. There is no evidence of the costings for such a development. In those circumstances I consider that any residual land calculation would be fruitless and I have not undertaken that exercise.

[294] The weight of the evidence indicates that the common sales, 144 Montague Road (first sale), and 512 Wickham Street are very relevant to the valuations. 56 Edmonstone Street is less so because of its location. Montague Road shows a rate of $2,137/m² land and 512 Wickham Street shows $2,924/m² land. 56 Edmonstone Street shows $1,236/m² land.

[295] For the reasons discussed previously, I consider that the Parmalat Multiplex contract should be taken into account. It shows $1,978/m² land. The site is much larger than the subject.

[296] Mr Horsburgh's sale 1, Newstead Circle, is also relevant although there are contamination issues. That site is also much larger than the subject and has a much lower achievable GFA than the subject. The sale analyses to $2,014/m² land. I do not consider that Mr Horsburgh's Sale 5, Waterloo Junction, can be used in the absence of any analysis as to the value of the hotel and liquor licence included in the sale.

[297] The remaining sales of the valuers and Mr Horsburgh are of less relevance.

[298] The respondent's valuer has applied a rate of $2,500/m² land to the subject land on the basis of a development with a plot ratio of 3.87:1. As indicated above I consider that the reasonable purchaser would anticipate a plot ratio of 4.98:1. On that basis I consider that such a purchaser would expect to pay more than $2,500/m² for the subject land in the before case. The sale with the most comparable GFA is 512 Wickham Street which showed $2,781/m² land or $2,924/m² land after making Mr Johnston's adjustments. There are differences between the sale and the subject particularly the retail potential of the sale and the different planning regime applicable. To be weighed against that is the riverside location of the subject. The property at 144 Montague Road is much smaller than the subject and the Parmalat Multiplex site is much larger. Both are in inferior locations, as compared with the subject, because they have no river frontage. Taking all those circumstances into account, I consider that the subject should be valued at $2,900/m² land which gives a value of $25,592,500 which may be rounded to $25,600,000. This represents $582/m² of GFA on a proposed GFA of 44,000/m².

[299] The value of the land in the before case is determined at $25,600,000. The value of the residual land is agreed at $9,000,000. The total compensation payable is, therefore, $16,600,000. The Court has been advised that advances totalling $13,500,000 have been paid. The balance payable is, therefore, $3,100,000. I will hear the parties as to any orders to be made in respect of the payment of that sum and interest.

[302] Compensation is determined in the sum of Sixteen Million, Six Hundred Thousand Dollars ($16,600,000).

[3] De Ieso v Commissioner of Highways (1981) 47 LGRA 412 at 417.

[4] Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 at 558.

[5] Recommendation 2, "Smart Cities: rethinking the City Centre".

[12] For convenience, the second to sixth transactions are referred to as Sales 2 to 6, although it is clearly understood that the first transaction was not a completed sale.

[13] The rescission appears to have occurred late in 2008 - see Exhibit 36.

[14] See Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 557.

[15] Freestone v Parramatta City Council (1974) 34 LGRA 35 at 49.

[16] Daandine Pastoral Company Pty Ltd v Commissioner of Land Tax (1947) 7 The Valuer 299.

[17] [1981] NSWLR 547 at 576.

[19] Chief Executive, Department of Natural Resources and Department of Mines v QNI Metals Pty Ltd [2002] QLAC 71; (2002) 23 QLCR 261 at 267.