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[2004] NSWLEC 291
Land and Environment Court (NSW)
2004-06-22
Mr J
Original judgment source is linked above.
Introduction 1 This is an appeal against the Valuer-General's determination of the owner's objection to the 2002 valuation of the following parcels of land: DP 14895 section 1, lots 4-6, 14 and 15 section 2, lots 10-36 section 3, lots 1-36 section 4, lots 1-18 section 5, lots 1-12 section 6, lots 1-4, 9-13 and 16-32 section 7, lots 1-32 section 8, lots 1-16; and DP 133919 , lot 1971.
2 The total area of the land is 29.7ha, of which 9.7ha is lot 1971 in DP 133919. The land was valued twice for the base date of 1 July 2002. It was valued on 14 October 2002 on one notice of valuation at $12,000,000 and reduced on objection to $2,900,000. A further 26 notices were issued (presumably superseding the earlier single notice), with valuation date of 7 August 2003, covering the same land as 26 separate properties with a total value of $7,535,000. The applicant contends that the true value is $1,042,000.
Description of the property 3 The site, called Seaside City, is located south of Tweed Heads, between Kingscliff and Cabarita/Bogangar. To the south is a residential/tourist housing development, called Casuarina Estate. To the north is a proposed residential/tourist development called Salt City. 4 The site was subdivided during the 1920s into 204 allotments, though the subdivision was never constructed. While the streets and lanes are not formed or constructed, they have been transferred to Tweed Shire Council (the council) as public roads. For reasons unknown, the site has acquired the unlikely name of Seaside City.
5 The last use of the site was for sand mining. Apart from three derelict workers' cottages dating from the sand mining days, there are no buildings on the property. One street, Catherine Street, was, however, constructed in 1999. The three derelict houses face Catherine Street.
6 The subdivision is in eight sections. Sections 1 and 5 are beachfront allotments. Sections 2 and 6 comprise the second and third rows from the beach. Sections 3 and 7 comprise the fourth and fifth rows. Sections 4 and 8 comprise the sixth row. The rear boundary of the allotments in the sixth row is to lot 1971, an area zoned 7(a) Environmental Protection (Wetlands and Littoral Rainforests). Crossing the subdivision are three north-south running streets, two north-south running rear lanes, one east-west running street and two east-west running lanes. The 26 notices of valuation mentioned above relate to the land bounded by these streets and lanes.
7 Of the 204 allotments in the Seaside City subdivision, 172 are within the applicant's ownership. Of the 34 beachfront allotments, 17 are in the applicant's ownership. Of the 34 allotments in the second row, 19 are in the applicant's ownership. The remaining 136 allotments in the third, fourth, fifth and sixth rows are all in the applicant's ownership.
8 The greater part of Seaside City is zoned 2(f), a zone of which the primary objective is to encourage tourist development and in which dwelling houses are prohibited. The eastern part is zoned 7(f) Environmental Protection (Coastal Lands), a zone in which buildings generally are not permitted. The zone boundary runs through the beachfront allotments at an oblique angle to the front and rear boundaries. Neither the 2(f) nor the 7(f) zone permits dwelling houses; however, the 2(f) zone permits tourist development.
9 Lot 1971 is to the west of the subdivision and extends to Cudgen Creek. It is zoned 7(a) Environmental Protection (Wetlands and Littoral Rainforests). Under the conditions of consent relating to the Casuarina Estate, lot 1971 must be dedicated to the council. At the date of valuation, as well as at the time of the hearing, the transfer has not been completed. Valuations since 1989 10 Since 1989 the valuation of this property has fluctuated. There have been several amendments on objection and appeal. This is the fourth appeal before the Court since 1993. 11 The applicant purchased the site in October 1989 for $4,000,000. On 1 July 1989 the property was valued at $3,500,000 and amended on objection to $3,250,000. On 1 July 1993 the property was valued at $3,250,000. That valuation was amended on objection to $2,450,000. On appeal to this Court, the valuation was amended to $2,000,000.
12 On 1 July1996 the property was valued at $2,000,000. On appeal to this Court the valuation was amended to $900,000. On 1 July 1998 the property was valued at $895,000. On 1 July 1999 the valuation remained at $895,000. On 1 July 2000 the property was valued at $3,000,000. On 1 July 2001 the property was valued at $5,000,000. On objection the value was not changed. On appeal to this Court it was amended to $1,2000,000.
13 On 1 July 2002 the property was valued at $12,000,000. On objection, it was reduced to $2,900,000. The date of valuation was 14 October 2002. The objection was determined on 4 July 2003. Subsequently twenty-six new notices of valuation were issued, with a valuation date of 7 August 2003, covering the same area and for the same base date, with a total value of $7,535,000. The appeals are against both valuations for 1 July 2002.
Should the land be valued as one parcel or 26 parcels? 14 Counsel for the respondent, M J Maston submitted that s 27(1) of the Valuation of Land Act 1916 (the Act) required the property to be valued as 26 separate holdings as public roads separated the property into 26 holdings. The applicant's representative, Mr F Wilson, submitted that since the roads had not been constructed (apart from Catherine Street), they were paper roads and should not be considered roads pursuant to s 27(1). I note that the Act contains no definition of a road. I can find no definition of a road in any other relevant Act, which would allow me to conclude that a dedicated, registered but unbuilt road is not a road for the purposes of s 27(1). I have therefore no option but to accept Mr Maston's submission that 26 separate notices of valuation must be issued for the property. 15 In the event, whether the property is valued as one or as 26 holdings makes little difference to the evidence, since all the experts based their valuations on the sum of the separate values of the 172 parcels. Whether the value of the property is derived by the addition of 172 values, or by adding the values first into 26 groups and then adding them again to produce the total, does not change the result. The only real difference is the size of the one-line-of-sale discount adopted, if any.
The respondent's evidence 16 Mr G Bewes, a valuer, had prepared and filed with the Court a report on valuing the land on a single notice of valuation. Mr Maston was reluctant to tender the report on the grounds that the valuation was for a single holding. I do not accept that this is a reason for withholding Mr Bewes' report. Mr Bewes calculated the value of the property by adding the values he attributed to each of the 172 allotments. His evidence is therefore relevant and I directed Mr Maston to tender it. 17 In his report Mr Bewes attributed values between $10,000 and $38,000 to the undeveloped allotments. He attributed $125,000 to the three lots containing derelict houses (and thus presumably existing use rights) on Catherine Street. His valuation for the property came to $2.9 million. Mr Bewes' valuation was the basis of the first notice of valuation for 1 July 2002, ie the notice that was subsequently replaced by 26 separate notices totalling $7,535,000. 18 The respondent relied also on a report by Mr J Palmer, a town planner, who was not required for cross-examination. The gist of Mr Palmer's report was that in July 2002 he would have advised a hypothetical purchaser that, while a dwelling house on a single allotment was prohibited on 2(f) land, if applications were lodged with the council for a combination of residential, tourist accommodation and tourist facilities for existing lots (my emphasis) within the subject land, such applications would be consistent with the 2(f) Tourism zone objectives and the list of permissible uses. It would therefore be likely to gain approval. 19 Mr G Burgis, a valuer, gave evidence in the respondent's case. He was responsible for the VG's second valuation that resulted in a total value of $7,535,000. Mr Burgis had not acquainted himself with either Mr Bewes' earlier valuation for the same base date, or the Court's decision on the land value for 2001. Mr Burgis agreed that there had been no recent sales in Seaside City. He therefore based his valuation on the sale of an allotment in Casuarina, since he regarded this as the nearest comparable sale. He assumed that a hypothetical purchaser in 2002 would have expected to receive development approval in Seaside City in three years, ie by 2005. Mr Burgis' method of valuation was as follows: · He took as the comparable sale an allotment of 3,000m2 in She-Oak Lane Casuarina (referred to as Sale 1). The land is zoned 2(e) and the council has approved a medium density development on it. · He applied the rate per m2 of the Casuarina sale to the lots on the subject land on the west side of Lorna Street, resulting in a value of $375,000. · He deducted $110,000 for marketing and development costs. · He deducted 33.3% to account for what he called the zoning situation. · He deducted 50% to account for the risk of delays and non-co-operation by other owners. After all the adjustments the value of an allotment on the west side of Lorna Street was $60,000. · Based on $60,000 he applied values to the other allotments depending on how favourably they compared with the Lorna Street allotments. This resulted in values ranging from $30,000 to $90,000. To the three lots in Catherine Street on which there are existing dilapidated houses, Mr Burgis attributed values of $130,000 to 150,000. · Mr Burgis then added the individual values into 26 groups defined by the unmade streets and lanes. The total value of the 26 groups of allotments was $7,535,000.
20 Mr Burgis assumed that the existing street pattern would be constructed and that all the sites had medium density potential. He agreed that where a purchaser does not see development potential within five years, the value of land becomes purely speculative. The value of speculative sales quoted in his report ranged from $2 to $19 per square metre. I assume from this that he does not think that the 33% discount applies to "zoning situations" where the change of zoning may take more than five years. 21 Mr Maston submitted that there were two reasons for the large difference between Mr Bewes' and Mr Burgis' valuations. The first was that Mr Bewes assumed that the land could be developed for dwellings, while Mr Burgis assumed that it could be developed for medium density housing and tourist development. The second was that Mr Bewes allowed a 40% discount for a sale in one line, while Mr Burgis did not think any discount was appropriate.
The applicant's evidence 22 In 2002 the applicant had lodged three development applications on land within the property. One application was for a bed and breakfast establishment, which is a permissible use in the 2(f) zone and was refused. The other two applications were for integrated tourist development comprising multi-dwelling housing for tourist accommodation and retail facilities, which are also permissible uses. They were referred to the Minister via the Department of Infrastructure Planning and Natural Resources (DIPNR) as the consent authority. The applicant tendered a council report setting out the council's comments on the application. The gist of the comments was that the council did not support the applications because they were premature, and because the planning of Seaside City had to be comprehensively approached. 23 The Court read the report of Mr V Feros, a town planner, who was not required for cross-examination. Mr Feros has worked on the planning of both Salt and Casuarina Town, as well as prepared the three development applications mentioned above. The gist of his evidence was that despite its position between Salt and Casuarina Town, the paper subdivision called Seaside City had little development potential compared to its neighbours. The reasons were that it had no overall plan, no roads and services; its statutory planning regime was different; it was in fragmented ownership and suffered from an outdated subdivision pattern designed more than 70 years ago. Because there was no single owner, it would be difficult to re-plan the subdivision pattern. Mr Feros saw no prospect of development in Seaside City in the short or medium term. 24 On 19 November 2003 the council adopted the Tweed Coast Strategy Development Control Plan No 51. The Plan expressly excludes Seaside City. However, that Seaside was not excluded from the Plan when it was in draft form, ie at the time the land was valued.
25 In May 2004 the council resolved to rezone Seaside City to 2(e), "residential tourist zone" that permits dwelling houses. The resolution was not new, as it had already been made in 2000 in the same terms. The report to the council on the rezoning suggested a timetable of 42 weeks, though it is not clear whether this included time with DIPNR and the Minister. For the purposes of this decision, the date of May 2004 is so recent that I have not given it material weight.
26 The applicant relied on the evidence of Mr J Robertson, a valuer who provided a report and gave oral evidence. Mr Robertson criticised Mr Burgis' approach to the valuation as both confusing and not supportable. In his opinion, it was not appropriate to adopt a comparable sale in an existing subdivision with a dwelling right, when no such right existed in Seaside City. To assume in 2002 that development consent could be obtained for Seaside City by 2005 would have been an ill-advised approach for a developer to take.
27 In response to Mr Bewes' 40% discount for one line of sale, and Mr Burgis' opinion that no discount should be given, Mr Robertson said that a discount of about 25% was appropriate. The basis of such a discount is that a prudent purchaser would expect to pay less for an allotment where he/she is purchasing a large number of them at the same time. A vendor is also likely to accept less for an allotment where he/she is able to sell a large number at the same time.
28 Mr F Wilson, who represented the applicant and who is not a qualified valuer, valued the property at $1,042,000. His valuation was based on a value of either $10,000 to each of the 172 allotments, with a 40% discount for sale in one line, or alternatively $6,000 without 40% discount.
Findings Wide divergence of the valuations in evidence 29 The Court had before it four valuations for the property. Three of the valuations were by registered valuers, but this fact did not result in their valuations being close to each other. As an example, the following values were attributed to each of lots 19-27 in Section 2 of the subdivision: Mr Bewes $19,000 Mr Burgis $40,000 Mr Richardson $5-10,000 Mr Wilson $6,000 30 The explanation for the significant differences is that the valuers assumed different development potential for Seaside City. Mr Burgis assumed that by 2005 council would be likely to approve, on any or all the allotments in Seaside City, a development application for a medium density integrated tourist development including 50% permanent housing. Mr Bewes based his valuation on sales within Seaside City that predated the last appeal to the Court and that the Court had already found were not suitable comparable sales. Mr Richardson and Mr Wilson assumed that Seaside City has no short or medium term development potential.
31 To come to its decision, the Court must prefer one or the other side's assessment of Seaside City's prospects of development.
Seaside City's development potential 32 All the evidence suggests that Mr Feros' assessment of Seaside City's development potential is correct. He has more experience of planning in the area than Mr Palmer. His evidence is based on that experience as well as on the fate of the three development applications for Seaside City that he prepared. I note that Mr Palmer did not discuss the three development applications. I find his approach superficial. 33 The inactivity of the council in relation to Seaside City since 2000, the fragmented ownership of Seaside City, the lack of services and the out-of-date subdivision pattern suggest that it will be many years before the development of Seaside City can be contemplated. At present it has value only as highly speculative investment.
The value of the property 34 Under s40(2) of the Valuation of Land Act 1916, the applicant has the onus of proving its case. Therefore the applicant must prove that the Valuer-General's valuation is wrong and provide a credible basis for its own valuation. 35 Section 6A(1) of the Act defines land value. The Australian Property Institute Professional Practice 2000 defines "value" as the estimated amount for which an asset should exchange on the date of valuation between a willing buyer and a willing seller in an at arms length transaction after proper marketing wherein the parties each acted knowledgeably, prudently and without compulsion.
36 It is a well-established practice of valuation to derive land value from comparable sales. Where the sales are not entirely comparable, it is accepted that a valuer may make adjustments to account for the difference in time and nature of the comparable sale. However, a comparable sale must have a strong element of comparability in it. In this case it was common ground between Mr Burgis and Mr Richardson that there were no comparable sales in Seaside City. (Mr Bewes had assumed comparable sales, but the Court had found these inappropriate in an earlier appeal.) Mr Burgis considered a sale in Casuarina to be comparable, subject to adjustments. I do not accept that a sale in a developed suburb can be used as a comparison with land in Seaside City, whose development prospects are uncertain. In my opinion, Mr Burgis' assumption that the existing street pattern of Seaside City would be constructed or that all sites had medium density potential is so unrealistic that any valuation based on it must be flawed. 37 I note that Mr Burgis deducted 33.3% to account for what he called the zoning situation, and 50% to account for the risk of delays and non-co-operation by other owners. Why just these percentages? In response to a question, he could not substantiate that these were percentages hypothetical purchasers might actually apply to their investment calculations. I therefore reject Mr Burgis' valuation. This includes his valuations of the three allotments on Catherine Street with derelict houses on them. He appears to have assumed that these allotments have existing use rights. There was no indication in his report that there has been continuing residential use of these allotments including in the previous twelve months. However, even if existing use rights applied to the allotments, it is doubtful that a hypothetical purchaser acting with prudence and knowledge would purchase them as residential allotments, given that they are surrounded by over 200 undeveloped allotments without rights to a dwelling house. 38 This leaves the Court with Mr Richardson's valuation, which was based on a realistic assessment of Seaside City's development potential (or lack of it). Mr Richardson attributed a speculative value of $5,000 to $10,000 to each of the 172 allotments. In the absence of guidance where the value lies between $5,000 and $10,000, I adopt a value slightly above the average, ie $8,000. This brings the total value of 172 allotments to $1,376,000.
39 Mr Richardson said that a reasonable discount for one line of sale would be 25% (as against Mr Bewes' discount of 40%). It was not clear whether he said this with 172 lots in mind, or only 9 lots covered by most of the valuation notices. For abundant caution therefore I allow for only a 20% discount. This reduces the value from $1,376,000 to $1,100,800. 40 This leaves lot 1971 to be valued. I accept Mr Maston's submission that all land must be valued. Mr Bewes valued lot 1971 at $250,000. Mr Burgis valued it at $230,000. Mr Richardson did not value it. Mr Wilson attributed zero value to it, on the grounds that its transfer to the council is in train. In my opinion, $230,000 is too high, as it gives a similar per square metre value to Mr Burgis' "speculative" Sale 5 at Brunswick Heads, for land for which there was no obligation to transfer to the council. A lesser value of $100,000 (ie about $1 per square metre) appears more reasonable. I note, however, that valuing this parcel is completely artificial. It is unlikely that anyone acting prudently and knowledgeably would buy land with the obligation to transfer it to the council in the near future. Adding $100,000 to $1,100,800, the value of the property becomes $1,200,800.
41 I am strengthened in the above conclusion by two matters. First, the Valuer-General's valuations for this property for 2002 have been, to say the least, haphazard. Within a short time the Valuer-General attributed the following values for the same land for the same valuation date: $12,000,000, $2,900,000 and $7,535,000. This hardly demonstrates a well-thought-out and consistent approach. Second, I note that in 2003 the Court concluded that the value of the land for 2001 was $1,200,000. The evidence before the Court in this appeal persuades me that nothing has changed between 2001 and 2002 to justify a major change of value. The respondent's submissions 42 The Court received the written submissions of Mr Maston on 15 June 2004. I deal with the main points:
43 Mr Maston submits the applicant relies heavily on the Court's earlier decision. If that is so, I have not relied on it in this judgment, other than to derive some comfort from the fact that the 2001 and 2002 valuations exhibit some consistency.
44 Mr Maston submits that the breaking up of the land into 26 separate valuations substantially alters its value. I do not accept that this is so. It is the same land and a prudent purchaser would apply the same principles to the purchase.
45 Mr Maston submits that the evidence clearly shows that the land had development potential in 2002 and has such potential now. In my opinion, the evidence showed exactly the contrary. The council's resolution, taken shortly before the hearing, to return, after years of procrastination, to the task of rezoning the land is meaningless without an indication of DIPNR's and the Minister's attitude. It is the Minister that effects the rezoning.
46 Mr Maston submits that the three development applications that the applicant has lodged demonstrate that the land has development potential. The contrary is the case. The lodging of the applications demonstrates at best that the applicant thought at one stage that it had development potential. The fact that the council has rejected one application and expressed opposition to the other two, suggests that the land has no development potential.
47 Mr Maston submits that Mr Robertson prepared his evidence late. I accept that this is a valid comment. Had Mr Maston objected to the evidence being admitted at a late stage, I would have extended the hearing time to allow the respondent to respond. There was no such objection. Mr Maston also submits that Mr Robertson was not properly instructed. Mr Robertson's evidence, which I accept was sketchy, was based on the instruction that the land has no development potential. Since I have accepted this basic premise, minor omissions from his instructions are not of sufficient significance to render his evidence worthless.
48 Mr Maston submits that Mr Robinson is wrong is taking into consideration the fact that many of the beachside parcels are in other ownerships, since this does not affect the saleability of individual parcels. The point of Mr Robertson's evidence was that there was no market for the individual parcels. I have accepted that evidence.
49 Mr Maston submits that the council has accepted the existing subdivision pattern. While I agree that the council has been sending mixed signals about Seaside City, the overwhelming message is that the existing subdivision and street pattern are unacceptable. This is not a surprising conclusion, given the date of the subdivision and the many events that have taken place since then, including the introduction of town planning legislation and coastal protection and the emergence of the concept of ecological sustainability.
50 Mr Maston submits that Mr Burgis's comparable sales were comparable and Mr Robertson was wrong in saying that they were not. I have already dealt with this issue above. Suffice it to say that the 33% and 50% discounts for lack of certainty, on which Mr Burgis's valuation was based suggest that he did not really think the land had much chance of being developed. Mr Burgis said that investors do not speculate beyond five years. The development of this land is certainly more than five years away.
51 Mr Maston refers to Mr Burgis's reliance on the fact that there is strong demand for tourist development in the area. This is irrelevant. The reason that Seaside City is without short or medium term development potential is not that there is a lack of demand for land in such desirable location, but rather that its fragmented ownership and antiquated subdivision pattern make its development along modern town planning lines difficult. While the difficulties may eventually be overcome through the concerted effort of the various owners, the council and the State planning agency, there is no indication that his will happen soon.
52 Finally, Mr Maston submits that the Court ought to accept Mr Palmer's evidence because it was not challenged in cross-examination. The same can be said of Mr Feros' evidence. In my opinion, Mr Pamer's evidence was unconvincing. The fact that the applicant did not require him for cross-examination is not a reason for accepting it.
Orders 53 The Orders that follow refer to land value on 1 July 2002 and · dismiss the appeal that the applicant lodged against the single notice of valuation that was superseded by the 26 subsequent notices; · uphold each of the 26 appeals lodged against the 26 subsequent notices of valuation; and · determine the value of the land covered by each notice according to the principles established in this judgment.
Dr John Roseth
Senior Commissioner
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Richtech
Valuer-General
CITATION : Richtech v Valuer-General [2004] NSWLEC 291 Applicant: Richtech Pty Ltd PARTIES : Respondent: Valuer-General FILE NUMBER(S) : 30920 of 2003; 30349-30374 of 2004 CORAM: Roseth SC KEY ISSUES: Valuation of Land :- development potential of land LEGISLATION CITED: CASES CITED: DATES OF HEARING: 24/05/2004 and 25/05/2004 DATE OF JUDGMENT: 06/22/2004