3of6 Pty Ltd v Valuer General of NSW

[2023] NSWLEC 1798

Land and Environment Court

New South Wales

Medium Neutral Citation:

3of6 Pty Ltd v Valuer General of NSW [2023] NSWLEC 1798

Hearing dates:

Conciliation Conferences on 13 October 2023 and 6 November 2023

Date of orders:

22 December 2023

Decision date:

22 December 2023

Jurisdiction:

Class 3

Before:

Davidson AC

Decision:

Proceedings 2023/00176967

The Court orders:

(1) The land value of the property legally described as Lot 6 in Deposited Plan 595328, known as 2 Ashford Avenue Milperra NSW is confirmed as $4,990,000 for the valuing year 1 July 2020, in accordance with s 6A of the Valuation of Land Act 1916.

(2)   The proceedings are otherwise dismissed.

Proceedings 2023/00176981

The Court orders

(1) The land value of the property legally described as Lot 6 in Deposited Plan 595328, known as 2 Ashford Avenue Milperra NSW is confirmed as $6,990,000 for the valuing year 1 July 2021, in accordance with s 6A of the Valuation of Land Act 1916.

(2)   The proceedings are otherwise dismissed.

Proceedings 2023/00176990

The Court orders:

(1)   The appeal is upheld.

(2) The land value of the property legally described as Lot 6 in Deposited Plan 595328, known as 2 Ashford Avenue Milperra NSW is amended to $12,000,000 for the valuing year 1 July 2022, in accordance with s 6A of the Valuation of Land Act 1916.

Catchwords:

VALUATION APPEAL – land valuer – conciliation conference – agreement between the parties - orders

Legislation Cited:

Land and Environment Court Act 1979 ss19, 34

Land and Environment Court Rules r 3.7

Bankstown Local Environmental Plan 2015

Valuation of Land Act 1916 ss 6A, 29, 34, 35, 35AA, 37, 38, 39, 40

Category:

Principal judgment

Parties:

3of6 Pty Ltd (Applicant)
Valuer General (Respondent)

Representation:

Counsel:
S Kanagaratnam (Applicant)
M Carpenter (Respondent)

Solicitors:
Stanton and Stanton (Applicant)
Crown Solicitor of NSW (Respondent)

File Number(s):

2023/176967
2023/176981
2023/176990

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicants appeal the Valuer General’s Determinations dated 4 April 2023 pursuant to s 37(1) of the Valuation of Land Act 1916 (NSW) (Valuation Act) in respect of the valuation of the land value of the property legally described as Lot 6 DP 595328 and known as 2 Ashford Avenue Milperra NSW (the land):

1. The proceedings fall within Class 3 of the court’s jurisdiction pursuant to s 19(b) of the Land and Environment Court Act 1979 (LEC Act).

2. The statutory power or function to be exercised in determining the proceedings are s 34(3)(a) of the LEC Act and s 40(1)(b) of the Valuation Act.

3. The Applicant appeals the Determinations of the Valuer General made on 4 April 2023 in respect of the objection by the Applicant to the valuations of the land value of the land as of 1 July 2020, 1 July 2021, and 1 July 2022.

Planning Background

2. Relevant features of the land are as follows:

1. The land is located in Milperra, a suburb in the City of Canterbury-Bankstown.

2. The land was zoned, as at the relevant dates, IN2 under the Bankstown Local Environmental Plan 2015 (LEP).

3. The site area of the land is 14,550 square metres.

4. The land has a south-westerly aspect from its street frontage. The land is rectangular in plottage and is an inside lot, with no rear lane access.

5. An open drainage easement forms part of the land. The drainage easement is 20.115 metres wide at the land’s road frontage, with a bridge travelling over easement. The easement travels parallel to the northern side boundary from the front boundary through to the rear western boundary.

Valuation objections and appeal

3. The valuation objections and history of the appeal include:

1. On 1 July 2020 the Land was valued at $4,990,000.00.

2. On 1 July 2021 the Land was valued at $6,990,000.00.

3. On 1 July 2022 the Land was valued at $13,900,000.00.

4. On 2 March 2023 the Applicant (through its representative Mr Tim Slattery) lodged objections to the Valuer General in respect of the Land valuations as at 1 July 2020, 1 July 2021, and 1 July 2022.

5. On 4 April 2022 the Valuer General disallowed the applicants objections.

6. On 2 June 2022 the Applicant filed three appeals in Class 3 of the Court’s jurisdiction, under s 37(1) of the Valuation Act.

7. The matters were provided with case numbers 2023/00176967 (1 July 2020), 2022/00176981 (1 July 2021), and 2022/00176990 (1 July 2022).

Legislation - Valuation of Land Act 1916

4. Section 6A of the Valuation Acts provides as follows:

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.

5. Further, Pt 4 of the Valuation Act states:

Part 4 Appeals to Land and Environment Court

Division 1 Appeals

37   Right of appeal

(1)  Any person entitled under Part 3 to object to a valuation may appeal to the Land and Environment Court if the person is dissatisfied with the Valuer-General’s determination of any such objection to the valuation concerned (whether or not the person was the objector).

(2)  An appeal may not be made on the ground that the objection is taken to have been disallowed, as referred to in section 35C (4), unless written notice of the objector’s intention to appeal on that ground has been given to the Valuer-General at least 14 days before the appeal is made.

(3)  No person or body has jurisdiction or power to conduct a review or hear an appeal in respect of the determination of an objection except as provided by this Part.

38   Time for appeal

(1)  An appeal must be made not later than 60 days after the date of issue of the notice of the Valuer-General’s determination of the objection.

(2)  The Land and Environment Court may allow a person to appeal after the 60-day period.

39   Grounds of appeal

The appellant’s and respondent’s cases on an appeal are not limited to the grounds of the objection.

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.

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 13 October 2023, and 6 November 2023. I presided over the conciliation conference.

7. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved determining the value of the land pursuant to s 6A of the Valuation Act, and to make a decision in place of the decision to which the appeal relates pursuant to s 40(1) of the Valuation Act.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 40(1) of the Valuation Act to make a decision in place of the decision to which the appeal relates in relation to land value of the land as of 1 July 2021.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the proceedings fall within Class 3 of the Court’s jurisdiction pursuant to s 19(b) of the LEC Act, with the jurisdictional prerequisites of relevance in these proceedings being ss 6A and 40(1) of the Valuation Act, and explained how the jurisdictional prerequisites have been met:

1. The Applicant is the owner of the freehold estate in the land (s 29(1)(a) of the Valuation Act).

2. On 10 January 2023, the Chief Commissioner of State Revenue issued a Land Assessment Notice to the Applicant. The Respondent’s valuation notices, pursuant to s 29 of the Valuation Act, was contained within that assessment in relation to the 2020, 2021 and 2022 valuation years (Determinations).

3. On 2 March 2023, pursuant to s 29(3A) of the Valuation Act, the Applicant (through its representative Mr Tim Slattery) lodged an objection against the Determinations within the prescribed time for lodging an objection, pursuant to s 35(1)(b) of the Valuation Act. The valuation used as the basis of the land tax assessment of 10 January 2023 had not been the subject of a prior objection, and as such s 35AA of the Valuation Act did not apply.

4. On 4 April 2023, the Respondent disallowed the Applicant’s objection.

5. On 2 June 2023, the Applicant filed three Class 3 Valuation appeals pursuant to s 37(1) of the Valuation Act, seeking the revocation of the Respondent’s decision to value the land in the amount that she did. The Applicant contended that the value the Respondent had assigned to the land was too high (pursuant to s 34(1)(a) of the VL Act).

6. For the purposes of the conciliation conference, the parties’ valuation experts (Lester Alvis for the Applicant and George Boulougouris for the Respondent) each applied s 6A of the Valuation Act by conducting an analysis of (what they considered to be) comparable sales to determine whether the value the Respondent had assigned to the land was too high.

7. On an appeal under s 37 of the Valuation Act, the Land and Environment Court may make any one or more of the orders set out in s 40(1) of the Valuation Act in order to dispose of the proceedings. The agreement reached between the parties to resolve the proceedings complies with s 40(1)(a) of the Valuation Act for proceedings 2023/176967 and 2023/176981 (as it confirms the Determinations to which the appeal relates) and s 40(1)(b) for proceedings 2023/176990 (as it makes a decision in place of the Determination to which the appeal relates) and is thus a decision that the Land and Environment Court has the jurisdiction and power to make.

10. For the reasons set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3)(a) and (b) of the LEC Act to “disposal of proceedings in accordance with the parties’ decision”.

11. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notation

Proceedings 2023/00176967

12. The Court notes:

1. Each party is to bear its own costs in these proceedings.

Proceedings 2023/00176981

13. The Court notes:

1. Each party is to bear its own costs in these proceedings.

Proceedings 2023/00176990

14. The Court notes:

1. Each party is to bear its own costs in these proceedings.

Orders:

Proceedings 2023/00176967

15. The Court orders:

1. The land value of the property legally described as Lot 6 in Deposited Plan 595328, known as 2 Ashford Avenue Milperra NSW is confirmed as $4,990,000 for the valuing year 1 July 2020, in accordance with s 6A of the Valuation of Land Act 1916.

2. The proceedings are otherwise dismissed.

Proceedings 2023/00176981

16. The Court orders:

1. The land value of the property legally described as Lot 6 in Deposited Plan 595328, known as 2 Ashford Avenue Milperra NSW is confirmed as $6,990,000 for the valuing year 1 July 2021, in accordance with s 6A of the Valuation of Land Act 1916.

2. The proceedings are otherwise dismissed.

Proceedings 2023/00176990

17. The Court orders:

1. The appeal is upheld.

2. The land value of the property legally described as Lot 6 in Deposited Plan 595328, known as 2 Ashford Avenue Milperra NSW is amended to $12,000,000 for the valuing year 1 July 2022, in accordance with s 6A of the Valuation of Land Act 1916.

Michael Davidson

Acting Commissioner of the Court

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Decision last updated: 22 December 2023