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Mir and ors v Valuer General [2009] NSWLEC 1309 (24 September 2009)

Last Updated: 30 September 2009

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Mir and ors v Valuer General [2009] NSWLEC 1309

PARTIES:
APPLICANTS
John and Marie Mir
Mir Bros (Hollywood Creations) Pty Limited
Mir Bros Trading Pty Limited
Mirco Finance Pty Limited
Mir Bros High Rise Apartments Pty Limited
Mir Bros Industries Pty Limited

RESPONDENT
Valuer General

FILE NUMBER(S):
30129 of 2007

CATCHWORDS:
VALUATION OF LAND :- appropriateness of land values

LEGISLATION CITED:
Valuation of Land Act 1916
Environmental Planning and Assessment Act 1979

CASES CITED:
Spencer v Commonwealth [1907] HCA 82; (1907) 5 CLR 418
Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 1999 CLR 413
Attard v Value General [2006] NSWLEC 351; (2006) 146 LGERA 384,
Commissioner for ACT Revenue v Rosnet Pty Ltd (1994) 83 LGERA 440,
Myer (SA) Stores Ltd v Value General (1986) 60 LGERA 158
Morts Dock and Engineering Coy Ltd v The Valuer General (1923) 6 LGR 162
Pamalco Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 [No 3] 71 LGERA 441
Graham Trilby Pty Limited v Valuer General [2008] NSWLEC 217

CORAM:
Brown C

DATES OF HEARING:
29, 30 June 2009, 1, 2, 3 July 2009, written submissions 31 July 2009

JUDGMENT DATE:
24 September 2009

LEGAL REPRESENTATIVES

APPLICANT
Mr P Tomasetti SC
SOLICITORS
Storey and Gough

RESPONDENT
Mr J Maston, barrister
SOLICITORS
Valuer General

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

Brown C

24 September 2009

30129 of 2007

APPLICANTS

John and Marie Mir

Mir Bros (Hollywood Creations) Pty Limited

Mir Bros Trading Pty Limited

Mirco Finance Pty Limited

Mir Bros High Rise Apartments Pty Limited

Mir Bros Industries Pty Limited

RESPONDENT

Valuer General

JUDGMENT

COMMISSIONER: These are appeals under s 37 of the Valuation of Land Act 1916 against the decision of the Valuer General to determine the land value of 4 parcels of land at the Base Dates of 1 July 2000 and 1 July 2003. The 4 parcels of land comprise most of the land within Lot 2 in DP 1042471 located off Clydesdale Drive and Badgally Road, Blairmount.
Lot 2 comprises a major portion of the Blairmount residential suburb. The existing developed part of the Blairmount contains largely single detached housing. This land was developed in the early 1980s.
Five parts of Lot 2 have been separately valued because they are held in separate ownership, although only 4 parts of Lot 2 are subject to this appeal. These are:

Property 1 - (Vol 13913 Fo 32) - 2.868 ha,

Property 2 - (Vol 13913 Fo 30) - 7.372 ha,

Property 3 - (Vol 13913 Fo 29) - 7.378 ha, and

Property 4 - (Vol 13912 Fo 122) - 41.538 ha.

The valuations

The Valuer General’s land values are:

2000 Base Date

Property 1 - $300,000,

Property 2 - $330,000,

Property 3 - $390,000, and

Property 4 - $3,100,000.

2003 Base Date

Property 1 - $1,500,000,

Property 2 - $2,850,000,

Property 3 - $2,000,000, and

Property 4 - $10,500,000.

Mr Maundrell’s land values on behalf of the Valuer General are:

2000 Base Date

Property 1 - $358,000,

Property 2 - $1,250,000,

Property 3 - $750,000, and

Property 4 - $4,400,000.

2003 Base Date

Property 1 - $700,000,

Property 2 - $2,320,000,

Property 3 - $1,220,000, and

Property 4 - $10,250,000.

Mr Carrapetta’s land values on behalf of the applicant are:

2000 Base Date

Property 1 - $181,750,

Property 2 - $236,500,

Property 3 - $246,500, and

Property 4 - $2,000,000.

2003 Base Date

Property 1 – $482,500 or $425,000 based on the Valuer General’s engineering assumptions,

Property 2 - $1,800,000 or $632,500 based on the Valuer General’s engineering assumptions,

Property 3 - $500,000 or $400,000 to $425,000 based on the Valuer General’s engineering assumptions, and

Property 4 - $7,015,000 or $7,225,000 based on the Valuer General’s engineering assumptions.

During the hearing, the parties accepted the land values of the Valuer General for Properties 1, 2 and 3 for the 2000 Base Date so the only contested land values are for Property 4 for the 2000 Base Date and Properties 1, 2, 3 and 4 for the 2003 Base Date.

The evidence

For the Valuer General, expert evidence was provided by Mr Andy Ludvik on town planning issues, Mr Robert Maundrell on valuation issues and Mr Terry Hams on engineering issues.
For the applicant, expert evidence was provided by Mr Paul Grech on town planning issues, Mr Frank Carrapetta on valuation issues and Mr Danny Boubli on engineering issues.

The relevant planning requirements

There was agreement between Mr Ludvik and Mr Grech on the relevant planning controls at the relevant Base Dates. At the 2000 Base Date, Lot 2 was subject to the provisions of Campbelltown Interim Development Order No 25 (IDO 25), gazetted in May 1977. Lot 2 was the subject of a number of different zonings, being:

2(b) Residential B,

7(a) Scenic Protection,

6(a) Open Space (Local),

5(a) Special Uses (Drainage Reserve),

5(a) Special Uses (School), and

3(c) Neighbourhood Business.

A copy of the IDO 25 zoning map is attached to the statement of Mr Grech.
IDO 25 was accompanied by further details in the form of a Development Control Plan map that replicated the IDO 25 zonings and provided the location of future roads to further guide the development of Lot 2.
Development Control Plan 79 - Residential Development Policy (DCP 79) was originally adopted by Campbelltown City Council on 30 May 1995 and applied at the 2000 Base Date and the 2003 Base Date. DCP 79 provided specific requirements for the design and minimum requirements for residential development and the need to incorporate concept proposals for open space and riparian corridors.
Campbelltown Local Environmental Plan – District 8 (Central Hills Land) was gazetted on 29 January 1988 and applied to part of Lot 2 with the effect of changing part of the 7(a) zone under IDO 25 to a similar 7(d1) Environmental Protection (Scenic) zone although the range of permitted uses remained similar to those under IDO 25.
At the 2003 Base Date, Lot 2 was subject to the provisions of Campbelltown (Urban Area) Local Environmental Plan 2002 (LEP 2002) gazetted on the 22 February 2002. The main changes to the zone boundaries from IDO 25 were adjacent to the school zone and the neighbourhood business zone. Objectives for the zones were added by LEP 2002 but there were no major changes to the designated areas for the different land uses on Lot 2 from IDO 25.
A copy of the LEP 2002 zoning map is attached to the statement of Mr Grech.

A hypothetical subdivision

The experts relied on a hypothetical subdivision of the 4 properties prepared by John M Daly & Associates Pty Ltd (see Attachment 1). The hypothetical subdivision generally adopted land uses consistent with IDO 25 and LEP 2002 but with some changes. It was generally agreed by all experts that the hypothetical subdivision represented a reasonable subdivision of the 4 properties. There was some disagreement between the experts on some areas of the hypothetical subdivision and these are explained later in the judgement. The hypothetical subdivision provides a total of 202 lots and a breakdown of the different land uses in the following way:
Property 1 - this property is triangular in shape with an eastern boundary adjoining the M5 Motorway and its northern boundary having a frontage to Exmoor Place. A watercourse cuts through the property near its northern boundary. The property has a total site area of 2.868 ha. The breakdown of the different land uses is:

residential –18,180 sq m,

riparian setback – 3,400 sq m, and

drainage – 7,100 sq m.

Property 2 - this property is generally rectangular in shape with a undulating to steep topography. The property is cut by a watercourse in the north-eastern part of the site. The property has a total site area of 7.372 ha. The breakdown of the different land uses is:

residential – 45, 620 sq m,

riparian setback – 5,200 sq m,

drainage – 14,000 sq m, and

scenic protection – 8,900 sq m.

Property 3 - this property is generally rectangular in shape with a undulating to steep topography. The property is cut by a watercourse in the north-eastern part of the site. The property has a total site area of 7.378 ha. The breakdown of the different land uses is:

residential – 22,780 sq m,

riparian setback – 6,600 sq m,

drainage – 18,700 sq m,

scenic protection – 11,700 sq m, and

open space – 14,000 sq m.

Property 4 - this property is generally irregular in shape with a undulating to steep topography. The property is cut by a watercourse in the north-eastern and southern parts of the site. The property has a total site area of 41.538 ha. The breakdown of the different land uses is:

residential – 91,780 sq m,

riparian setback – 39,600 sq m,

drainage – 27,400 sq m,

scenic protection – 245,300 sq m, and

open space – 8,100 sq m, and

neighbourhood business – 3,200 sq m.

The highest and best use

Mr Ludvik and Mr Grech agreed that the highest and best potential use of each of the properties at each of the base states would be:

residential zoned land - a residential subdivision which creates vacant lots for sale,

neighbourhood business zones land - neighbourhood shops,

environmental protection zoned land - subdivision along zone boundaries to contain the 2 dwellings on Property 4 and the creation of a residue lot on Properties 2 and 3. The residue lot on Properties 2 and 3 would be undersized for the erection of a dwelling house but could be possibly be sold in conjunction with a residential lot or used for open space purposes,

open space or drainage zoned land - public open space and drainage purposes in conjunction with the subdivision and development of the balance of the land.

Mr Ludvik and Mr Grech agreed that a prudent purchaser would take into consideration a range of matters, when determining the likely development potential of the properties at each of the Base Dates. These matters would be:

flooding,

ecological,

aboriginal archaeology,

European heritage,

subdivision/road design,

acoustic, and

landscaping/scenic quality.

Mr Ludvik and Mr Grech helpfully agreed that the matters of flooding and ecological considerations are the primary matters that would affect the development potential of the properties. Other relevant matters agreed by Mr Ludvik and Mr Grech include:

the drainage/riparian corridors would need to be designed for the 4 properties,

an acoustic barrier would need to be designed for the 4 properties and constructed prior to any development of the properties,

the subdivision of all residentially zoned land would likely to be capable of being developed as one, and

the neighbourhood business zoned land could be developed independently of the other land uses.

Mr Hams and Mr Boubli agree on a large number of aspects of the hypothetical subdivision, however disagree on:

the width of the riparian corridor required to be provided in the creek environment,

the length of the bridge across the riparian area for the southern leg of Clydesdale drive,

the extent of the acoustic barrier along the property boundary with the adjacent freeway, and

the cost of the works required to embellish the riparian and drainage areas in the hypothetical subdivision.

Mr Maundrell and Mr Carrapetta rely on the evidence of their engineering experts for their preferred valuations. For the 2000 Base Date, Mr Maundrell and Mr Carrapetta agree that the highest and best use of Property 4 was land banking for future development.
For the 2003 Base Date, Mr Maundrell and Mr Carrapetta disagree on the highest and best use of the 4 properties. Mr Maundrell is of the view that the highest and best use is for residential subdivision whereas Mr Carrapetta maintained that the highest and best use is for land banking for future development.

The basis for assessing land value

Section 6A of the Valuation of Land Act 1916 (the Act) relevantly states:

6A Land value

(1) The land value of land is the capital sum which the fee-simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona-fide seller would require, assuming that the improvements, if any, thereon or appertaining thereto, other than land improvements, and made or acquired by the owner or the owner’s predecessor in title had not been made.

(2) Notwithstanding anything in subsection (1), in determining the land value of any land it shall be assumed that:

(a) the land may be used, or may continue to be used, for any purpose for which it was being used, or for which it could be used, at the date to which the valuation relates, and

(b) such improvements may be continued or made on the land as may be required in order to enable the land to continue to be so used,

but nothing in this subsection prevents regard being had, in determining that value, to any other purpose for which the land may be used on the assumption that the improvements, if any, other than land improvements, referred to in subsection (1) had not been made.

Section 27(2) of the Act relevantly states:

27 Where lands are to be separately valued

....

(2) Lands which...are separately owned, shall be separately valued....

Clause 40 of the Act provides:

40 Powers of Land and Environment Court on appeal

(1) On an appeal, the Land and Environment Court may do any one or more of the following:

(a) confirm or revoke the decision to which the appeal relates, (b) make a decision in place of the decision to which the appeal relates,

(c) remit the matter to the Valuer-General for determination in accordance with the Court’s finding or decision.

(2) On an appeal, the appellant has the onus of proving the appellant’s case.

The valuation approach

Maundrell

Mr Maundrell states that the best method of valuation is by direct comparison of en globo sales evidence for all the properties for both Base Dates. In his opinion, a hypothetical purchaser would consider the potential of the consolidated properties rather than individual properties. It is unlikely that each property would be developed separately due to the individual shape of each property and the issues involved with the development of the drainage system.
The most suitable approach would be for a developer/investor/speculator to consolidate the various parcels. It could be argued that Property 4 could be developed separately but this is unlikely given that the drainage works would need to be undertaken by the developer and/or the costs negotiated with downstream owners before development commenced. As with any parcel consolidation, there is always some risk that ultimately creates delays.
Mr Maundrell acknowledges that he is required to consider what a developer would pay for the individual parcels of land, each as a separate entity, however, it would be expected that a hypothetical purchaser would have access to all currently available information on the land's potential so as to undertake meaningful negotiations and ultimately a sale. This knowledge would include the benefits of co-operation with other landowners to achieve a more timely and mutually beneficial development of the properties.
Notwithstanding Mr Maundrell’s adoption of the comparable sales method of valuation, he also carries out an assessment based on the hypothetical development method of assessment to confirm his principle method of valuation.

Carrapetta

For the 2000 Base Date, Mr Carrapetta found that the redevelopment of the individual parcels was not financially viable so the assessment was made on the comparable sales method of assessment. At the 2003 Base Date, Mr Carrapetta adopts the hypothetical development method of valuation. He considers that this form of assessment to be the more appropriate method of valuation as it would be the method that a developer would adopt when considering the purchase of these properties because the inherent features and site constraints warrant individual consideration.
Mr Carrapetta identifies the following matters that support his valuations:

Property 1:

the balance of the site is landlocked and can only be redeveloped once the adjoining and neighbouring properties are developed,

access to the rear part of Property 1 is available only through the construction of a bridge over the creek within Properties 2 and 3,

unless developed in conjunction with the adjoining properties, the cost of trunk drainage works makes redevelopment unfeasible, and

the construction of a noise barrier is required given the site joins the M5 Motorway.

Property 2:

the balance of the site is landlocked and can only be redeveloped once the adjoining and/or neighbouring properties are developed,

access to the property is available only through the construction of a bridge over the creek within Property 3,

unless developed in conjunction with the adjoining properties, the cost of trunk drainage works makes redevelopment unfeasible,

a contribution towards the construction of a noise barrier is likely given the site is in close proximity to the M5 Motorway,

high road costs due to half road fronting the riparian area, and

subdivision in isolation is likely to require the construction of two temporary roads.

Property 3:

the balance of the site is landlocked and can only be redeveloped once the adjoining and/or neighbouring properties are developed,

access to the property is available only through the construction of a bridge over the creek within Property 2, unless developed in conjunction with the adjoining properties,

the amount of trunk drainage works is high and

only about 39% of the site is available for residential development,

Property 4:

if developed prior to Properties 1, 2, and 3 the developer would be forced to fund costs of trunk drainage works and any arrangements for recoupment of pro rata costs at a later date,

part of the neighbourhood business area may fall within a riparian setback,

the need for a bridge or culverts to gain access to the residential part of the site, and

high road costs associated with half road frontage to drainage land, riparian areas and open space.

Mr Carrapetta further states that a prudent developer/purchaser would also take into consideration that there would be time delays in obtaining council approval and approval for the determination of the riparian setback requirements. This may in turn lead to some yield issues, delays and additional costs.
There is a potential unwillingness of individual owners to agree on cost sharing for bridge work rendering some sites totally isolated. Due to the uncertainty of these events happening and the unknown timeframe, together with the limited demand for land in this locality, a prudent purchaser would have justification for heavily discounting the value in comparison to other, but less constrained development sites. In his opinion, a prudent developer/purchaser would be unwilling to consider a purchase unless the site was offered at a bargain basement price or a heavily discounted price that allows for a relatively higher profit and risk factor/margin.
Mr Carrapetta rejects the use of the comparable sales approach because of a lack of en globo sales evidence within the immediate locality. In his opinion, the en globo sales used by Mr Maundrell are far removed from the area of the properties, are superior locations, do not have similar features, are not located adjacent to a public housing suburb (Claymore) and consequently require numerous adjustments.

Findings

The approach

The approach to the determination of land value assumes a hypothetical sale between a willing but not anxious vendor and a willing but not anxious purchaser (Spencer v Commonwealth [1907] HCA 82; (1907) 5 CLR 418). The parties are to be taken to be "perfectly acquainted with the land" and all of the circumstances (Spencer at 441) and "the market for the property is assumed to be an efficient market in which buyers and sellers have access to all currently available information that affects the property" (Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 1999 CLR 413).
Mr Maundrell and Mr Carrapetta adopt different approaches to the valuation exercise. Put simply, Mr Maundrell adopts a higher degree of potential co-operation than Mr Carrapetta, if there are different owners for each of the properties. In balancing the different approaches, I am more inclined to accept the approach adopted by Mr Maundrell for a number of reasons. While each property must be valued separately, I must be assumed that hypothetical vendors and purchasers would conduct their affairs in a market in which they act predictably, rationally and in their economic best interests. While there are clearly obstacles to the independent development of each of the properties (with the possible of exception of Property 4), this does not mean that each property should be treated as a stand-alone property with no consideration of the contextual relationship with other adjoining or nearby properties particularly when this relationship affects the attainment of the highest and best use of the property (see Attard v Value General [2006] NSWLEC 351; (2006) 146 LGERA 384, Commissioner for ACT Revenue v Rosnet Pty Ltd (1994) 83 LGERA 440, Myer (SA) Stores Ltd v Value General (1986) 60 LGERA 158 and Morts Dock and Engineering Coy Ltd v The Valuer General (1923) 6 LGR 162)
In my view, it would be reasonable to assume that each of the properties would be owned by persons who have knowledge of the relevant market, would act rationally and in their best economic interests. On this basis, it would not be unreasonable to expect that there would be some co-operation and equitable sharing of development costs based on the particular characteristics of each of the properties so that each landowner would maximise the value of their property. This is not an abnormal process in the development of greenfield development sites where there are often multiple owners wishing to develop but cannot do so without the cooperation of other owners in the area.
Considerable support for the need for the joint development of the subject properties comes from the Environmental and Planning and Assessment Act 1979 where it could be reasonably argued that the individual development of the properties (even assuming it was viable) would be inconsistent with the object in s 5(a)(ii), in that it would not reflect the "economic and orderly" development of the land when compared to the "economic and orderly" development of the land as shown in the hypothetical subdivision (or something similar). It could also be reasonably argued that there would be a reasonable basis for the rejection of an application to develop an individual property that did not give due regard to its relationship with adjoining properties, particularly when there are development control plan or similar documents, such as IDO 25, DCP 79, the Central Hills DCP that are designed to guide the overall form of development for the consolidated properties.
These are matters that could reasonably be expected to be known by a hypothetical vendor and purchaser of each parcel and the price paid for the properties would likely reflect an adjustment for risk. The significant difference between Mr Maundrell and Mr Carrapetta on an adjustment for this risk highlights their different approaches.

The method of valuation

Mr Maundrell and Mr Carrapetta adopt different methods of valuation for the 2003 Base Date. In considering the competing methods, I am satisfied that the comparable sales method used by Mr Maundrell is the appropriate method in this case. Hemmings J in Pamalco Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 [No 3] 71 LGERA 441 (at 447) relevantly states:

Long experience has demonstrated that the most acceptable and reliable approach to the ascertainment of the value of land is the "selling approach" which was explained in Spencer v Commonwealth of Australia [1907] HCA 82; (1907) 5 CLR 418. In my opinion, the selling test described therein is as appropriate today as when initially formulated. The loss to the dispossessed owner is the sum which a prudent purchaser would be prepared to pay to the vendors for the land at the date of resumption after a hypothetical process of voluntary bargaining. For that purpose each party must be assumed to be cognisant of all relevant circumstances which might affect the value of the land.

There are many acceptable valuation approaches, and a hypothetical development exercises are also a valid and useful tool in the hands of an expert valuer. However, the inevitable multiplicity of assumptions and adjustments make such mathematical hypothetical assessment less reliable than the "selling" approach based on market sales of comparable land with the minimum of adjustment.

These comments are supported by Jagot J in Graham Trilby Pty Limited v Valuer General [2008] NSWLEC 217, where Her Honour states (at 26):

26 A convenient starting point for the methodological dispute is the observation of Wells J in Bronzel v State Planning Authority (1979) 44 LGRA 34 at 38 that:

...this Court should be slow to reject any method that, in expert hands, is capable of yielding a result within bounds that are not unreasonable. The limitations of every method must, of course, always be kept clearly in mind. I am of the opinion that the approach likely to result in the most direct and reliable resolution of the outstanding differences between the valuations is to consider the particular features of each valuation that are capable of yielding to adverse criticism.

27 That having been said it is well recognised that, if comparable sales are available, direct comparison has repeatedly been identified as the “conventional valuation technique” (see, for example, the summaries in Alan Hyam, The Law Affecting the Valuation of Land in Australia, (3rd ed, 2004), at 126 – 141 and Douglas Brown, Land Acquisition, (5th ed, 2004), at [4.9]). The basis for this preference is obvious - if comparable sales are available then they represent direct evidence of the market’s evaluation of all of the variables that a valuer must otherwise account for by a subjective opinionative process in the residual or hypothetical development approach. This proposition underscores why the fact that developers buying en globo parcels may routinely use a residual analysis to determine land value is an insufficient reason (at least considered in isolation) to disregard or place little, if any, weight on comparable sales.

While the reliability of the comparable sales method of valuation can be questioned in some circumstances, I am satisfied that the comparable sales method is appropriate in this case because:

the sales are en globo land,

the 2000 Base Date sales were zoned rural although ear-marked for residential development, and as such the sales would reflect a more conservative value,

the 2003 Base Date sales were zoned for residential or urban purposes, similar to that of the subject properties,

it would be unreasonable to expect multiple nearby sales of residentially zoned en globo land, particularly when the properties in this appeal involve most of the undeveloped land in Blairmount

the sales used by Mr Maundrell are not that distant from the properties that a reasonable adjustment could not be made for distance,

the sales at the 2000 Base Date are not overly close to the Base Date but the market at the time was relatively flat, and

the sales at the 2003 Base Date are close to the Base Date when the market at the time was relatively buoyant.

The subjective opinionative process in the residual or hypothetical development approach referred to by Jagot J in Graham Trilby is highlighted in the evidence of the valuers in their assessment of the profit and risk. Mr Maundrell (in response to Mr Carrapetta) provides the following assessment:

20% for the hypothetical approach over Lot 2.

17.5% for the hypothetical approach over Parcels 1-3.

17.5% for the hypothetical approach over Parcel 4.

Mr Carrapetta, for comparison, provides the following assessment:

25% for the hypothetical approach over lot 2 DP1042471.

25% for the hypothetical approach over Parcels 1-3.

25% for the hypothetical approach over Parcels 4.

Mr Carrapetta provides the following profit and risk assessment for the Properties 1, 2 and 3 for both his original valuation (Original)and the Valuer General engineering assumptions (Revised ):

40% for the hypothetical approach over Parcel 1 (Original),

35% for the hypothetical approach over Parcel 1 (Revised),

45% for the hypothetical approach over Parcel 2 (Original),

35% for the hypothetical approach over Parcel 2(Revised),

35% for the hypothetical approach over Parcel 3 (Original)

35% for the hypothetical approach over Parcel 3 (Revised).

A consistent theme running through the evidence of Mr Carrapetta was a stated or implied assumption of non-cooperation in the joint development of the properties, if the properties were in different ownerships. I do not accept that the degree of non- cooperation suggested by Mr Carrapetta is likely to occur for the reasons set out in earlier paragraphs so I would be more inclined to accept the profit and risk assessment by Mr Maundrell, if hypothetical development approach was to be used.
I do not accept Mr Carrapetta’s strongly put position that the proximity of Claymore has a significant impact on the value of the properties. I prefer the approach of Mr Maundrell who, while acknowledging the existence of Claymore and the public housing status of the suburb, accepts that Badgally Road and the open space along this road, provides a physical barrier between Blairmount and Claymore. The quality and type of housing in the existing residential parts of Blairmount have a significantly higher level of presentation and amenity than those found in Claymore and, in my view, supports Mr Maundrell’s approach of a lesser impact on land values different housing and consequent land values, than expressed by Mr Carrapetta.

The engineering evidence

Mr Boubli and Mr Hams provided costs for the development of the 4 properties based on the hypothetical subdivision. Some of the matters raised by Mr Boubli and Mr Hams impinge on the potential might yield and the value of the properties because of necessary engineering works.
Mr Hams estimates the development costs at $12,669,059 or $62,409 per lot based on 202 lots whereas Mr Boubli estimates the cost of development at $14,124,700 or $83,086 per lot based on 170 lots. The major areas of differences between Mr Boubli and Mr Hams in the lot yield and development costs relate to:

the appropriate width for the riparian area,

the cost of the bridge over the creek,

drainage costs, and

the cost of a noise barrier.

Width of riparian setback for residential lots and neighbourhood business lot

The evidence

Mr Boubli states that the hypothetical subdivision, adjacent to the riparian corridor to the north of Clydesdale Drive, shows the rear boundaries within 5 to 10 m from the top of the bank of a watercourse. In his opinion, this setback does not satisfy the intent of the Guidelines on Integrated Development and the Rivers and Foreshores Improvement Act 1948 (the Guidelines) where the setback is to allow for the effective management of riparian zones and control development adjacent to watercourses. He states that prior to granting approval for development within 40 m of a prescribed watercourse, a detailed survey and site inspection is required by the Department of Water and Energy (DWE) to assess the site topography, and the likely impacts of the proposed development on the watercourse, including the flora and fauna habitat. In accepting that the 40 m distance is an arbitrary "trigger" for DWE involvement and consent, it is unreasonable to expect that simply because a setback of 40 m or more has been provided by the hypothetical subdivision in one location, that a reduced setback can be provided elsewhere. In his opinion, Mr Boubli states that a 40 m riparian corridor adjacent to the main watercourse should be provided.
Mr Hams states that the top of the bank for the main watercourse through the site has been estimated from aerial photographs and contours. This line has then been offset by 40 m to address the DWE requirements. Mr Hams states that based on his experience of past projects of a similar nature, the extent of the riparian areas to meet the requirements of DWE is flexible and for practical reasons in this case, the line has been rationalised to prevent an unduly curved road alignment. The line also closely follows the zone boundary. Importantly, the secondary creek passing under the northern leg of Clydesdale Drive is not considered to be as significant as the main creek, given the significantly smaller catchment for this part of the creek. Given that significant riparian areas are provided adjacent to the main creek, Mr Hams expects that the buffer distances to the secondary creek would be reduced significantly and that the drainage corridor provided by the zone boundaries would be considered adequate for this creek line.

Findings

Mr Boubli provided two plans indicating the extent of a 40 m riparian area on the hypothetical subdivision (Exhibits M and N). The latter plan provided a reassessment of the original plan and showed a greater encroachment on some proposed lots. For Property 1, there is a relatively small encroachment on the two new lots created at the end of Exmoor Place. In my view, this encroachment has no measurable impact on the value of Property 1. For Property 3, there is an encroachment on all three new lots created off Clydesdale Drive. The effect is to reduce the number of lots to a single lot. Property 4 would suffer the greatest impact from a 40 m riparian area. The neighbourhood business land, according to Mr Boubli, is significantly reduced and 10 of the 12 lots shown on the hypothetical subdivision on the southern side of the drainage reserve would be lost.
The Guidelines provide the purpose of the riparian area as maintaining and enhancing local native vegetation wherever possible adjacent to rivers, estuaries and lakes to provide a natural filter for runoff, stabilise stream banks and provide habitat and corridor functions for flora and fauna. Generally, a 40 m riparian area is recommended for major watercourses and a 20 m riparian area for minor watercourses.
I am satisfied that the watercourse within Properties 2 and 4 is a minor watercourse and at worst, requires a 20 m riparian area. The lots in question on Property 2 adjoin an existing allotment and there would appear to be little benefit in reducing the lot size in this location. The Guidelines provide some flexibility and are subject to a site assessment and as part of this assessment the additional riparian areas provided for the major watercourse would be relevant considerations.
Given the flexibility provided by the Guidelines for an appropriate setback, the potential to adjust the hypothetical subdivision to compensate for some, if not all of the lots suggested by Mr Boubli to be affected by the riparian area, the uncertainty of accurately defining the riverbank and the provision of additional land beyond that required for a riparian area in the major watercourse, I am satisfied that a willing but not anxious purchaser would accept that the hypothetical subdivision provides a reasonable basis for assessing a lot yield for the site of 202 lots.

Cost of bridge

The evidence

Mr Hams and Mr Boubli disagreed on the cost of the bridge across the riparian area for the southern leg of Clydesdale Drive. Mr Hams estimates the cost at $2,150,000 whereas Mr Boubli estimates the cost at $2,475,000. There was agreement on of the estimated flow width in the drainage system and that there should be a 0.5 m freeboard above the 1% annual recurrence interval (ARI) flood level however the difference in cost relates to the lengthening of the distance between the abutments supporting the bridge deck. Mr Hams proposes the supporting structures to be located within the riparian area but outside the 1% ARI flood level whereas Mr Boubli proposes no supporting structures within the riparian area.

Findings

In balancing the different approaches of Mr Hams and Mr Boubli, I am satisfied that the additional costs associated with locating supporting structures outside the riparian area is not a fundamental or necessary design feature of the bridge. In practical terms, the unrestricted area proposed by Mr Boubli under the bridge and within the riparian area will achieve little in terms of achieving the aims of a riparian area. I can comfortably conclude that a willing but not anxious purchaser would accept that the supporting structures for the breach could be located within the riparian area but above the 1% ARI flood level.

Drainage costs

Mr Hams and Mr Boubli disagreed on the cost of embellishing the riparian and drainage areas. Mr Hams estimates the cost at $1,170,000 (planting of 7.8 ha at $150,000/ha) whereas Mr Boubli estimates the cost at $2,299,500 (including trash racks and litter control at $60,000). The difference in cost is $1,069,500.
Mr Hams states that the majority of Campbelltown was developed prior to riparian areas being fully considered so little local data is available. Camden is the next nearest local government area to the site and as such is considered a reasonable source of data and the basis of his assessment.
Mr Boubli states that the embellishment of the riparian areas needs the provision of erosion and flow measures to control increased runoff within the watercourse as a result of the development. The rates adopted from Camden are based on attenuation of flows off the site and hence upon a "natural" pre-development flow regime. There is no flow attenuation within the development and so the flow within the watercourse will be increased as a result of an increase in impervious areas and will be discharged to the watercourse in a series of outlets, which concentrates the flow. Further, the upstream flows will be conveyed through the site and discharge to the watercourse as a concentrated flow, rather than a sheet flow as in the existing predevelopment state. These increased and concentrated flows would generally be controlled by a series of natural engineering features, such as rock pitching to the invert and creek banks, dense planting and regeneration within the drainage corridor and riparian areas.

Findings

On this issue, I generally agree with the conclusions of Mr Boubli. At the Base Dates, the works required for the drainage and riparian areas would likely have been more than the planting of trees, as suggested by Mr Hams. The treatment of stormwater flows generated by the development needs to be addressed and would require some engineering measures to address the additional and more concentrated flows from the development of the properties.

Noise barrier

Mr Hams and Mr Boubli disagreed on the extent of the noise barrier required along the southern boundary with the South-Western Freeway. Mr Hams maintains that the noise barrier should be located along the rear property boundaries of the proposed lots in Property 1 with some returns adjoining the drainage land whereas Mr Boubli maintains that the noise barrier should be extended across the full width of the drainage land. The additional cost estimated by Mr Boubli is $39,600 for an additional 40 m of barrier and an extension of the freeway culvert at a cost of $150,000.

Findings

In the absence of any acoustical evidence, it is not possible to conclude whether the additional works suggested by Mr Boubli are required however the cost of the additional acoustical barrier is not a large expense and would not impact on the valuations of the properties in any meaningful way even if the additional fencing was required. I am not satisfied that some other means of providing the additional acoustical fencing for the proposed lots could not be found without the need for the extension of the freeway culvert and as such, it is not a cost that should be included in the valuation of the properties.

The valuation of Property 4 at the 2000 Base Date

Carrapetta evidence

In accepting that the property can be developed in isolation from Properties 1,2 and 3, Mr Carrapetta states that the residential area of 9.11 ha indicates a yield of 114 residential lots however based on the evidence of Mr Boubli, the riparian zone is likely to be required to be widened because of a standard setback from the bank of the nearby creek and the yield would be reduced by up to 10 lots. For similar reasons, the area set aside for neighbourhood business may also be reduced in size.
Mr Carrapetta’s states that Property 4 is not financially viable to redevelop at the 2000 Base Date based on net realisation of $5,861,070 and development expenses of $7,220,884. On this basis, the estimated land value is minus $1,359,814 (and includes a cost sharing agreement for drainage works) but before allowances for holding costs, acquisition costs and land purchase.
In response to Mr Maundrell’s direct comparison of en globo sales evidence, Mr Carrapetta provides 5 sales from the Elderslie Release Area. The sales are:

Sale 4 - Elderslie

Area: 18.78 ha.

Sale price: $1,420,000 ($76/sq m).

Zone: Rural 1(a).

Contract date: 22 September 2000.