Land and Environment Court New South Wales Medium Neutral Citation: Graham Trilby Pty Ltd v Valuer-General [2011] NSWLEC 68 Hearing dates: 4-7 April 2011 Decision date: 15 April 2011 Jurisdiction: Class 3 Before: Biscoe J Decision: (1) Appeals allowed (2) Proceedings listed to make orders determining values in accordance with judgment. (3) Parties to submit draft orders beforehand together with full hypothetical development calculation. Catchwords: VALUATION OF LAND - hypothetical development method preferred to comparable sales method - determination of average selling price of lots in subdivision, profit and risk, contingency on development costs, interest period and interest rates - value of unusable residential zoned land. Legislation Cited: Baulkham Hills Local Environmental Plan 2005 Environmental Planning and Assessment Act 1979 s 94 Valuation of Land Act 1916 ss 6A, 14L, 37 Cases Cited: Brewarrana Pty Ltd v Commissioner of Highways (1973) 32 LGRA 170 Bronzel v State Planning Authority (1979) 44 LGRA 34 Graham Trilby Pty Ltd v Valuer-General [2008] NSWLEC 217 River Bank Pty Ltd v Commonwealth (1974) 4 ALR 651 Graham Trilby Pty Ltd v Valuer-General [2009] NSWLEC 1087 Category: Principal judgment Parties: Graham Trilby Pty Ltd (Applicant) Valuer-General (Respondent) Representation: Mr I Hemmings (Applicant) Mr J Maston (Respondent) McCabe Terrill Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 30412/10, 30413/10, 30414/10 JUDGMENT 1These are three appeals under s 37 of the Valuation of Land Act 1916 against the Valuer-General's valuation of 16.48 hectares of bushland in Lot 161, Deposited Plan 1007387 ( Land ) off Cattai Creek, Kellyville as at 1 July 2007, 1 July 2008 and 1 July 2009. The applicant has the onus of proving its case: s 40(2). 2The Land is vacant bushland, devoid of improvements. The Land is elevated and falls to Cattai Creek at its northern boundary. It adjoins existing residential land to the south and west, which the applicant subdivided. Cattai Creek is the major creek in the area connecting to the Hawkesbury River. 3The Land is zoned partly 2(b) Residential and partly Open Space 6(a) (Existing and Proposed Public Recreation) under the Baulkham Hills Local Environmental Plan 2005. The 2(b) zone encourages development of a predominantly single dwelling, low density character. 4The Land's highest and best use is for residential subdivision development and resale of the finished allotments. 5The areas of the Land in the two zones are as follows: + Residential 2(b) Zone 77,358 m2 ; + Open Space 6(a) Zone 87,442 m2 ___________ 164,800 m2 (16.48 ha) 6The Residential zoned land comprises: + Usable Residential land 73,400 m 2 + Unusable Residential land 3,958 m 2 7The unusable Residential land is unusable because it is too steep. It adjoins the 6(a) Open Space land which is similarly steep and falls to Cattai Creek. STATUTORY CONTEXT 8Section 6A of the Valuation of Land Act 1916 provides: 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. (3) Notwithstanding anything in subsection (1), in determining the land value of any land, being land in relation to which, at the date to which the valuation relates, there was a water right: (a) the land value shall include the value of the right, and (b) it shall be assumed that the right shall continue to apply in relation to the land. (4) For the purpose of determining the value of a water right, the value of any water secured by, or referable to, that right is to be ignored. 9Section 6A(1) refers to "land improvements" which are defined in s 4 as follows: Land improvements means : (a) the clearing of land by the removal or thinning out of timber, scrub or other vegetable growths, (b) the picking up and removal of stone, (c) the improvement of soil fertility or the structure of soil, (d) the restoration or improvement of land surface by excavation, filling, grading or levelling, not being works of irrigation or conservation, (d1) without limiting paragraph (d), any excavation, filling, grading or levelling of land (otherwise than for the purpose of irrigation or conservation) that is associated with: (i) the erection of any building or structure, or (ii) the carrying out of any work, or (iii) the operations of any mine or extractive industry, (e) the reclamation of land by draining or filling together with any retaining walls or other works appurtenant to the reclamation, and (f) underground drains. 10Part 1B Division 3 of the Valuation of Land Act provides for an allowance for profitable expenditure on land. Section 14L provides: 14L Expenditure for which allowance is to be made (1) For the purpose of ascertaining the land value of any land, the Valuer-General is to ascertain a reasonable allowance for profitable expenditure by the owner, occupier or lessee in respect of: (a) any effective land improvements on or appertaining to the land, and (b) any visible and effective improvements which, although not on the land, have been constructed: (i) for the purpose of supplying water to the land, or (ii) for the purpose of draining the land, protecting the land from inundation or making some other provision for the more beneficial use of the land. (2) In the case of a stratum, the Valuer-General is also to ascertain a reasonable allowance for profitable expenditure by the owner or occupier on any visible and effective improvements which, although not in the stratum, have been constructed exclusively for the benefit of the stratum. (3) An allowance for profitable expenditure is to be calculated on the assumption that: (a) the allowance is being calculated at the date by reference to which the land value is being determined, and (b) any improvements that have been taken into account for the purpose of ascertaining the land value of the land were in existence at the date referred to in paragraph (a). (4) An allowance for profitable expenditure is to be entered in the Register of Land Values in respect of any land value to which it relates. EARLIER APPEALS 11The land has been the subject of two earlier valuation appeals to the Court relating to the 1 July 2005 base date ( 2005 Appeal ) and 1 July 2006 base date ( 2006 Appeal ). 12The 2005 Appeal was Graham Trilby Pty Ltd v Valuer-General [2008] NSWLEC 217. Jagot J adopted the comparable sales method and determined that the land value was $13,028,420 and that the s 14L allowance was $702,197. 13The 2006 Appeal was Graham Trilby Pty Ltd v Valuer General [2009] NSWLEC 1087 ( 2006 Appeal ). Parker AC adopted the hypothetical development valuation method and determined that the land value was $10,839,880. The land value of the Open Space 6(a) land was agreed between the parties at $2,639,880, as it is in the present proceedings: this was the amount determined in the 2005 Appeal at [38]. The s 14L allowance was agreed. VALUATION EVIDENCE 14Mr Douglas Bowen is the applicant's valuation expert. Mr Robert Maundrell is the Valuer-General's valuation expert. Mr Maundrell's view is that value should be determined by the comparable sales method with the hypothetical development method as a check. Mr Bowen's view is that there are no reliable comparable sales and therefore value should be determined by the hypothetical development method. 15Mr Maundrell was the Valuer-General's valuer in the 2005 and 2006 Appeals. In the 2005 Appeal he relied on six en globo comparable sales as the primary evidence of land value and used the hypothetical subdivision (ie residual analysis) as a check. Mr Bowen was not involved in the 2005 and 2006 Appeals. 16In the present case, the statutory land values determined by the Valuer-General and the values assessed by the parties' valuers are as follows: Statutory Mr Maundrell Mr Bowen $ $ $ 1 July 2007 12,624,000 10,000,000 8,860,000 1 July 2008 10,000,000 10,000,000 8,450,000 1 July 2009 12,600,000 10,000,000 8,270,000 17The 1 July 2008 statutory assessment was reduced on objection from $12,6000 to $10 million. It is unclear why objections to the statutory assessments for 1 July 2007 and 1 July 2009 were not also similarly reduced on objection. In any event, the Valuer-General now supports Mr Maundrell's values. The 2007 and 2009 appeals therefore must be allowed at least to that extent. 18The valuers assigned a value to the Residential 2(b) zoned land and a separate value to the 6(a) Open Space zoned land. Then, by summation, they produced a total value for the land. They agreed that the value of the Open Space zoned land at each base date was $2,639,880 based on an area of 87,996 m 2 at $30/m 2 . 19The land is entitled to an allowance under s 14L(1)(b) for water supply and sewerage works. The expense relates to works which, although not on the Land, have been held to be visible and effective improvements which have been constructed by the Rouse Hill Infrastructure Corporation: 2005 Appeal at [53]. The valuers have agreed that that allowance is $720,000 as at 1 July 2007, 1 July 2008, and 1 July 2009. 20The valuers have agreed that it is reasonable to assume that a subdivision of the Land would yield 45 residential lots. This number allows for the fact that a threatened flora species is growing within the 2(b) Residential zoned area, for which a conservation area is to be set aside. 21The valuers have agreed that the Land is within a bushfire prone area and that it is accordingly necessary to provide the required asset protection zones in the subdivision design, in accordance with advice from a bushfire consultant. COMPARABLE SALES METHOD 22It is first necessary to decide the methodological dispute. Mr Maundrell used the comparable sales method with the hypothetical development method as a check. Mr Bowen used the hypothetical development method (also known as the residual method) because he considered that there were no reliable comparable sales. 23Wells J observed in Bronzel v State Planning Authority (1979) 44 LGRA 34 at 38 : ...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. 24That having been said, if sufficiently reliable comparable sales are available, direct comparison is widely accepted as the conventional valuation technique: River Bank Pty Ltd v Commonwealth (1974) 4 ALR 651 at 652 (Stephen J); Hyam, The Law Affecting the Valuation of Land in Australia (4 th ed, 2009) at 190-208. The obvious basis of the preference was explained by Jagot J in the 2005 Appeal at [27]: ...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. 25Whether a sale is sufficiently comparable is a question of fact and degree. Some adjustment is always necessary; too much adjustment will render it unsafe to use: Brewarrana Pty Ltd v Commissioner of Highways (1973) 32 LGRA 170 at 180. 26Of the six comparable sales identified in the 2005 Appeal at [30], only one was used in the 2006 Appeal and none are used in the present appeal. 27In the 2006 Appeal Mr Maundrell for the Valuer-General relied upon nine sales: at [17] and [19]. Of those nine sales, Mr Maundrell still relies upon five in the present appeal. The Commissioner decided that all five were of "very limited comparability" and "of limited relevance": at [21], [22], [25], [28], [29]. He added that none were "directly relevant comparable sales": at [30]. 28Those five sales were: * 3 Balmoral Road, Kellyville. * 20 and 22 Burns Road, Kellyville. * 999 Benbullen Way, Kellyville. * 87 and 90 Fyfe Road, Kellyville. * 78 Fyfe Road, Kellyville. 29The Commissioner concluded at [41]: It is well recognized that, if comparable sales are available, the direct comparison of sales evidence approach is the conventional method of valuation. However, given the absence of directly comparable sales, the provision of only one indirectly relevant comparable sale for consideration and the absence of a transparent rationale for the level of adjustment made, I concur with the Applicant and consider that reasonable reliance cannot be placed on the use of the direct comparison of sales evidence approach to valuation for the subject property residential land in this case. 30The Commissioner recognised that there was significant agreement between the valuers which enhanced the prospect of the hypothetical development method of valuation being reliable and safe. He said at [44] (omitting citations): Despite the large number of variables for assumption within the hypothetical development method of valuation, Mr Maundrell and Mr Juniper appear to have been able to agree all except the number of lots, gross realization and appropriate allowance for profit and risk. I consider that the extent of agreement between Mr Maundrell and Mr Juniper, or certainty of assumptions concerning variables, enhances the prospects of the hypothetical development method of valuation being reliable and safe in this case...This has lead [sic] to their respective valuations under the specified range of assumptions being relatively close and within bounds that are not unreasonable. 31The Valuer-General invites me to find that the above five sales are comparable and relevant. Such factual findings would conflict with the factual findings of the Commissioner in the 2006 Appeal. 32As a general principle, in my opinion, the Court should not make conflicting findings of fact in consecutive valuation appeals relating to the same land where there is no significant difference in the evidence, unless it is convinced that the earlier finding is wrong. Courts should strive to be consistent. 33The evidence in relation to the five sales is not significantly different in the present case. Mr Bowen, the applicant's valuer, holds the view that they are not reasonably comparable because the level of adjustments that have to be made are too large to achieve a reliable result. 34Mr Maundrell provided an "objection report" to the Valuer-General in response to the applicant's 2008 objection before the proceedings commenced. In this report Mr Maundrell made explicit adjustments to each of the five sales for location/suburb, size, state and constraints (bushfire prone, development costs, lot yield). This was an attempt to respond to the need for transparency indicated by the Commissioner in the 2006 Appeal at [41]. The total adjustments in each case ranged up to 75 per cent. In my view such a high level of adjustments provide some support for the Commissioner's determination of the comparability of the sales: see [27] above. Mr Maundrell was cross-examined on that report and it was then tendered by the applicant. In cross-examination he conceded that there were errors in some of the adjustments in the report. 35In Mr Maundrell's report prepared for these proceedings and tendered earlier by the Valuer-General, he largely abandoned that particular attempt at transparency. He did not explicitly make these adjustments in the objection report except for size. His view, as I understand it, is that whereas size is an objective matter, adjustments for the other factors are subjective and are better subsumed in an overall adjustment based on his experience. 36The comparable sales methodology employed by Mr Maundrell, as set out in his reports tendered in the proceedings, was described in the Valuer-General's closing written submissions as follows: (a)It is necessary to adjust not just for lot yield, but also for the qualities of the finished lots in the comparable versus the subject. (b)To do this adjustment, one makes a mathematical adjustment 1 for lot yield. (c)Adjustment 2 takes the per lot average value of the finished lots (representing their value in the market). (d)From this is deducted the calculated average finished lot prices of the comparable sale subdivision. The difference from the subject subdivision is thus given. (e)Multiplying this difference by the lot yield for the subject gives the average price adjustment on a per hectare value basis for the subject land. (f)A small deduction from the result is needed for the differences in profit and risk factor between the two subdivisions. A simple proportion gives this result. (g)The resultant figure, converted from hectares to m 2 (by dividing by 10,000) gives the amount to add to or subtract from the sale to adjust for all factors of difference in the average price variation per lot between the two subdivisions. 37The applicant makes the following criticisms of Mr Maundrell's methodology: (a)Adjustment 1 assumes a linear relationship between value and yield; (b)Adjustment 2 requires consideration of the gross realisation for the subject, an appropriate profit and risk for the subject, and construction costs for the subject. Within that calculation, Mr Maundrell said his adjustment for location/suburb, shape and constraints (including topography) are "embedded". The difficulty with this approach is that it requires the carrying out of, in effect, a hypothetical development analysis in order to adjust comparable sales. (c)Even if the difficulties can be overcome, the process demonstrates a range, after adjustment of $113 - $128/m2 for the comparables which do not support the $100 relied upon by Mr Maundrell. Even with their significant adjustment, they strictly have not been made comparable. 38In relation to the third criticism, I would observe that Mr Maundrell rationalised a rate of $100/m 2 on the basis that he was being conservative. In fact, the midpoint of the range of $113 to $148/m 2 is $128/m 2 which supports the 2008 statutory assessment of $12.6 million. The Valuer-General reduced that amount to $10 million on objection being taken. The applicant complains that Mr Maundrell was not consistently conservative because for one of the base dates he rounded up his assessed value from about $9.6 million to $10 million. 39The first question is whether the 2006 Appeal decision to adopt the hypothetical development method is distinguishable. 40The Valuer-General seeks to distinguish that decision on two grounds. First, the extent of agreement between the valuers as to the variables within that method was greater than in the present case. In the 2006 Appeal, the Commissioner noted that the valuers had agreed all variables except the number of lots, gross realisation and allowance for profit and risk. He considered that the extent of their agreement enhanced the prospects of the hypothetical development method being safe and reliable: at [44]. In the present case there are additional matters which have not been agreed in the hypothetical development calculation: length of the interest period, interest rates, and the contingency percentage. 41That is true but given that the interest rate difference is of little significance and that the other differences are within a reasonable range and able to be determined without undue difficulty, I do not think that is a sufficient point of factual distinction. 42The second point of distinction is said to be that in the 2006 Appeal both valuers conducted a comparative analysis, whereas in the present case only Mr Maundrell did. I do not think that is a sufficient point of factual distinction. The Commissioner criticised the sales as having very limited comparability yet they are pressed before me. Mr Bowen's view is consistent with that of the Commissioner. 43The Valuer-General's attempt to distinguish the 2006 Appeal decision also rests uneasily with the evidence of his expert, Mr Maundrell, that the hypothetical development method carries more weight on this occasion than previously because costs had been assessed by an engineering expert and were not his own estimate. 44In the circumstances, I propose to adopt the 2006 Appeal findings concerning the comparability of the said five sales; and to follow the 2006 Appeal decision that the hypothetical development method rather than the comparable sales method should be employed. HYPOTHETICAL DEVELOPMENT METHOD 45The valuers agreed on all the variables for a hypothetical subdivision analysis except for four items. Those four items, each valuer's assessment and my determination are as follows: (a)Average selling price of 45 lots: Mr Bowen $417,000 Mr Maundrell $428,000 Court $428,000 (b)Profit and risk: Mr Bowen 20 % Mr Maundrell 17.5% Court 17.5% (c)Contingency on development costs: Mr Bowen 8% Mr Maundrell 5% Court 8% (d)Interest period: Mr Bowen 21 months Mr Maundrell 15 months Court 21 months (e)Interest rates: 2007 2008 2009 Mr Bowen 9.3% 9.6% 10.0% Mr Maundrell 8.6% 10.0% 8.8% Court 8.6% 10.0% 8.8% Average selling price 46The first contentious item in the hypothetical development method is the average selling price (ie gross realisation) of each of the 45 lots on the Land. 47In reaching their respective conclusions, Mr Maundrell and Mr Bowen each considered other sales. Each then exercised his judgment to estimate the selling price of each of the 45 lots in the hypothetical subdivision on the subject land, with the following average result: (a)Mr Maundrell $428,000 (b)Mr Bowen $417,000 48The difference between the two average estimates is remarkably small: 2.5 per cent. 49In the 2006 Appeal the Commissioner determined that the gross realisation of the 45 lots was $19,250,000: at [59]. That equates to an average (rounded) of $428,000 per lot. 50Although the subdivision plan in evidence before me may be more detailed than it was in the 2006 Appeal, I propose to follow the 2006 Appeal decision and accept Mr Maundrell's evidence that the average selling price of the 45 lots is $428,000. Profit and risk 51For profit and risk Mr Maundrell adopted 17.5 per cent and Mr Bowen adopted 20 per cent. 52Their estimates were based on their professional experience. They agreed that because the subject land was difficult to develop, the allowance should be higher than usual. 53In the 2006 Appeal the Commissioner decided that, reflecting the relative complexity of development of land of this nature, the allowance should be 17.5 per cent. I propose to follow that decision and accept Mr Maundrell's evidence that the allowance should be 17.5 per cent. Contingency on development costs 54Mr Maundrell's allowance for a contingency on development costs was 5 per cent. Mr Bowen's allowance for contingency was 8 per cent. 55Each valuer earlier adopted apparently opposite positions. 56In Mr Maundrell's objection report for the Valuer-General in response to the applicant's objection (prior to the commencement of the proceedings), he adopted 8 percent. In his reports tendered in these proceedings he adopted 5 per cent. Under questioning, his explanation was that on further consideration he had decided on 5 per cent because engineering development costs estimates of November 2009 in evidence made more certain what the development costs would be (as compared with a valuer's estimate) and justified a lower contingency allowance. 57In Mr Bowen's report he said that for 1 July 2008 he had allowed a five per cent contingency in estimating the sale price per lot as at 1 July 2008. However, in his hypothetical subdivision calculations annexed to that report he adopted a five per cent contingency for 1 July 2007 but an eight per cent contingency for 1 July 2008 and 1 July 2009. In cross-examination he was unable to explain how these discrepancies had occurred. 58In this rather confused state of the evidence, I am inclined to favour the figure favouring the applicant of eight per cent. Interest Period 59The valuers' competing positions as to the DA assessment period and the development and selling period were as follows: Bowen Maundrell (a) DA assessment period 9 months 6 months (b) Development and selling period 24 months 18 months TOTAL _________ _________ 33 months 24 months 60The valuers agreed that interest should be calculated on the DA assessment period and on half the later development and sales period when sales are reducing debt. Therefore, their competing interest periods are as follows: Mr Bowen 21 months (9 + 12 (ie 24 ¸ 2)) Mr Maundrell 15 months (6 + 9 (ie 18 ¸ 2)) 61Thus, the difference in their interest periods is six months. 62As interest is said to be in excess of $60,000 per month and as the valuers are six months apart, an interest allowance in excess of $360,000 turns on the determination of this issue. 63Mr Maundrell's uncontradicted evidence was that the agreed development and selling period in the 2006 Appeal was two years. 64The applicant submits that the site has difficulties which have the potential to lengthen the DA assessment period. The first difficulty is the necessity for the issue of a certificate by the Rural Fire Service, as a concurring authority. Secondly, the land is heavily timbered and an endangered flora species is located on it. Consequently, there will be a need for a flora and fauna report and the engagement of other government agencies in the assessment of potential impacts upon the endangered species. Thirdly, the topography is difficult in parts including where a road has to be dropped over a significant cliff line. 65There are statistics, on which the applicant relies, that the mean average time for development approval in this local council area in the 2008/2009 year was just under six months, and in the 2009/2010 year was just over eight months. Given the difficulties on the subject land, the applicant submits that these statistics reinforce the conclusion that the DA assessment period in the present case would be nine months. The Valuer-General submits that these statistics are not meaningful without further analysis of what lies behind them. 66The Valuer-General submits that a prudent vendor would bring engineering costs reports into existence to enhance the selling price before the relevant base dates and provide them to the purchaser, and that this would accelerate the DA assessment period. 67I am persuaded that the difficulties associated with this site, as identified in the applicant's submission, would probably lead the prudent vendor and purchaser to accept a nine month period for the development approval assessment period. I think this would be so even if an engineering costs report was available. The statistics should be viewed with caution but tend to reinforce this conclusion. 68It appears that in the 2006 Appeal the Commissioner accepted 24 months for the development and selling period and I propose to do the same. 69Accordingly, I find that the interest period is 21 months (9 + 12 (ie 24 ¸ 2)). INTEREST RATES 70The interest rates adopted by the valuers were as follows: Bowen Maundrell 2007 9.3% 8.6% 2008 9.6% 10.0% 2009 10.0% 8.8% 71The valuers' different interest rates for different periods are said to have no significant financial consequence overall because each valuer's rates sometimes favours the applicant and sometimes does not, according to the period. The issue, therefore, is one of principle. 72The interest rates adopted by Mr Maundrell for 2007 and 2008 were taken from the Reserve Bank's published small business weighted average rate on credit outstanding at the beginning of each of the 2007 and 2008 years. That type of rate for 2009 was 7.15 per cent. However, for 2009 Mr Maundrell did not adopt that rate but switched to the Reserve Bank's published small business variable non-residential secured overdraft rate of 8.8 per cent. The reason for the switch, he explained, was that it reflected his knowledge of what development companies were actually paying. His understanding was that the market was paying the weighted average of 8.6 per cent in 2007 and of 10.0 per cent in 2008, but that in 2009 the market was paying the small overdraft rate of 8.8 per cent. 73The interest rates adopted by Mr Bowen were those which the applicant told him the applicant was paying. However, Mr Bowen did not investigate whether the applicant's credit was atypical of a potential developer. 74I consider that in a hypothetical development analysis it is preferable to adopt an objective rate which is not dependent on an assessment of the credit of the particular applicant. 75Accordingly, I adopt Mr Maundrell's rates of 8.6 per cent as at 1 July 2007, 10.0 per cent as at 1 July 2008 and 8.8 per cent as at 1 July 2009. UNUSABLE RESIDENTIAL ZONED LAND 76Unusable Residential zoned land has an area of 3,958 m 2 . It is unusable because of its steepness. It is adjacent to steep land zoned Open Space, which is adjacent to Cattai Creek. 77Naturally, the unusable Residential land is not part of the hypothetical development assessment. Its relevance is that Mr Maundrell added value for it of $118,740 calculated at $30/m 2 . He adopted the rate of $30/m 2 for 6(a) Open Space zoned land determined in the 2005 Appeal after a 50% reduction from $60/m 2 for time, risk and delay. Mr Bowen does not add value for the unusable Residential land because he considers it worthless. 78In the 2005 Appeal the Council's contributions plan under s 94 of the Environmental Planning and Assessment Act 1979 and an acquisition clause, cl 44, in its local environmental plan influenced Jagot J's determination of the value of the Open Space zoned land: at [6] and [38]. The land within the 6(a) zone is part of the Cattai Creek Conservation Area. Cattai Creek is the major creek in the area connecting to the Hawkesbury River. The Council's contributions plan under s 94 authorised the collection of funds for the acquisition of an Open Space corridor along the creek. The local environmental plan supports these provisions with its acquisition clause, cl 44, in the following terms: (1) The owner of any land within Zone 5 (a) and lettered on the map "Community Facility" or "Local Drainage" or any land within Zone 6 (a) may, by notice in writing, require the Council to acquire the land. (2) On receipt of such a notice, the Council must acquire the land if: (a) the land is included in a program for the acquisition of land by the Council current at the time of receipt of the notice, or (b) the Council is of the opinion that the owner of the land will suffer hardship if the land is not acquired within a reasonable time, but the Council is not required to acquire the land if it might reasonably be required to be dedicated as a condition of consent to a development application. (3) Until the land referred to in subclause (1) is acquired by the Council, a person may, with development consent, carry out development on that land. (4) Such a consent may be granted subject to conditions requiring either or both of the following, with or without the payment of compensation by the Council: (a) the removal of the building or work for which consent is granted, (b) the reinstatement of the land or removal of any waste material or refuse. (5) In considering whether to grant consent as referred to in subclause (3), the consent authority must take into consideration: (a) the effect of the proposed development on the cost of acquisition, and (b) the imminence of acquisition. (6) Land acquired under this clause may be developed with development consent for any purpose, until such time as it is required for the purpose for which it was acquired. 79In the 2005 Appeal, Jagot J concluded at [38]: The concerns raised by Mr Barlow about the open space land cannot be lightly dismissed... Although I accept Mr Maundrell's reduction for size to $60 per m2 I consider his further 25% reduction for the time and risk factors too low having regard to the size of the open space and the lack of any capacity of the buyer to require acquisition unless and until the land is placed by the Council on the acquisition program or the Council forms an opinion on hardship. As Mr Maundrell said, the land will not be placed on a program until the development application (or possibly consent) stage is reached. This could mean that a buyer has to hold the open space for many years. Mr Barlow's approach (to equate the value of the land to the s 94 contributions payable and no more) is too extreme; but I am satisfied that the allowance for delay and risk should be in the order of about 50% to take into account the very large area of open space and the terms of the acquisition clause in the LEP. This gives a value for the open space land of $2,639,880. 80The unused Residential land is not zoned Open Space. Therefore cl 44 does not apply to it and no application can be made to the Council to acquire it under cl 44. 81Therefore, the applicant submits, either the unusable Residential land is worthless or, if 50 per cent is the discount in the case of Open Space land which has the benefit of cl 44, then there must be a significantly higher discount where no application can be made under cl 44. 82The Valuer-General points out that the Council's contributions plan records that Cattai Creek is the major creek line in the area, runs to the Hawkesbury River and bears on the water quality in that river. The plan states that in this respect the future management of Cattai Creek requires special consideration. Mr Maundrell commented that this in effect gives the Open Space land priority. The Valuer-General submits that the Council is evidently gathering Open Space land for conservation and water catchment purposes. The Valuer-General submits that the Council would not allow the unusable land to lie as an idle, un-maintained parcel, which could become eroded and pollute Cattai Creek when topographically and physically it is connected to and forms part of steep Open Space land. Rather, the Council would treat the unusable Residential zoned land and the adjoining Open Space land as one. 83Both parties' submissions carry weight. The conclusion I have reached is that value should be attributed to the unusable Residential land but that the degree of risk is higher than for Open Space land because cl 44 does not apply to it. Therefore, in my opinion, the rate of $30/m 2 should be discounted by 50 per cent to $15/m 2 . CONCLUSION 84The three appeals are allowed. The proceedings will be listed before me at 9.30am on 18 April 2011 to make orders determining values as at each base date in accordance with my judgment. The parties are to submit agreed or competing draft orders beforehand, together with a full hypothetical development calculation. I propose to publish that calculation with the orders in a short further judgment in order that the calculations leading to my valuations are transparent. The exhibits may be returned. Amendments 28 April 2011 - Typographical errors. Amended paragraphs: Cover sheet and paragraphs 12 and 13 07 March 2012 - omission of jurisdiction field Amended paragraphs: cover page 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. Decision last updated: 07 March 2012