Anderson v Valuer-General - [2005] NSWLEC 151

Land and Environment Court

of New South Wales

CITATION:
Anderson v Valuer-General [2005] NSWLEC 151

PARTIES:
APPLICANT
Alec Anderson, Hugh Anderson and Murray Anderson
RESPONDENT
Valuer-General

FILE NUMBER(S):
31059 of 2004

CORAM:
Nott C

KEY ISSUES:
Valuation of Land :- land value of a parcel of land without lawful access

LEGISLATION CITED:
Valuation of Land Act 1916, s 37
Conveyancing Act 1919, s 88K

DATES OF HEARING: 22/03/05

EX TEMPORE JUDGMENT DATE:
03/22/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Anderson, one of the applicants
RESPONDENT
Mr A Pickles, barrister
SOLICITOR
Crown Solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

22 March 2005

31059 of 2004: Alec Anderson, Hugh Anderson and Murray Anderson v Valuer-General

JUDGMENT

1 This is an appeal under s 37 of the Valuation of Land Act 1916 in respect of the land value of Lot 1 DP 201644 at No.69 Amos Lane, Bundanoon, as at 1 July 2003. The Valuer-General originally determined the land value as at that date to be $201,000. Upon considering the applicant’s objection that the value was too high because the subject land is landlocked and does not have formal legal access to a public road, the Valuer-General amended the valuation to $180,000. The land value formerly determined as at 1 July 2000 was $45,000.

2 At the hearing Mr A Anderson, who is one of the three tenants-in-common who own the subject land, appeared in person and gave evidence on behalf of the owners. Evidence for the Valuer-General was given by registered valuer Mr P Gardner.

3 The evidence from Mr Gardner indicates by reference to comparable sales that the value of the subject land, assuming that it had lawful access, would be $240,000. However, I indicated that I had some reservations about some of the adjustments that were made to the comparable sales, particularly for topography and location and because five of the six comparable sales involved sewered land and the subject land was unsewered.

4 After a short adjournment the parties agreed as a compromise that the starting point for ascertaining the land value of the subject land would be $201,000 assuming that the subject land had lawful access.

5 The issue then was: what deduction from the $201,000 should be made on account of the fact that an intending purchaser would take into account the need to obtain a formal right-of-way to the closest public road, Amos Lane.

6 In considering what deduction should be made, Mr Gardner gave two alternatives. First, a purchaser could negotiate and come to an agreement with the owner over which the right-of-way would be granted, namely Canhill Pty Ltd, in which case Mr Gardner was of the opinion that $25,000 should be allowed to cover matters of uncertainty and costs involved in coming to such an agreement.

7 Secondly and alternatively, if the land had to be acquired pursuant to s 88K of the Conveyancing Act 1919, Mr Gardner was of the opinion it would be reasonable to allow…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWLEC 151
Decision Date: 03/22/2005

CaseChat Overview and Summary

This case concerns an appeal brought by Alec Anderson, Hugh Anderson, and Murray Anderson against the Valuer-General regarding the valuation of a parcel of land at Lot 1 DP 201644 at 69 Amos Lane, Bundanoon. The dispute arose from the Valuer-General's initial valuation of the land as $201,000 as at 1 July 2003, which the applicants contested on the basis that the land was landlocked and lacked lawful access to a public road. After considering the applicants' objection, the Valuer-General reduced the valuation to $180,000, but the applicants remained unsatisfied and appealed to the Land and Environment Court of New South Wales.

The central legal issue before the court was the appropriate deduction to be made from the land value for the lack of lawful access to a public road. The applicants argued for a deduction of $163,416, which represented the costs of constructing a road from the subject land to Amos Lane, including ancillary costs. In contrast, the Valuer-General suggested a deduction of $42,000, which included compensation for the land, costs of legal proceedings, and an amount for the increased risk associated with the acquisition process.

The court examined the historical context of the land and surrounding properties, including the resumption of a previous right-of-way by the council and subsequent informal arrangements for access. The court considered that an intending purchaser would likely negotiate a right-of-way for a sum less than $43,000. The court found that the appropriate allowance for the lack of lawful access should be about $42,000, which was in line with the Valuer-General's suggestion. This deduction from the assumed land value of $201,000 resulted in a final land value of $159,000.

In its judgment, the court upheld the appeal and altered the land value to $159,000 as at 1 July 2003. The exhibits, other than exhibits 1, 2, and A, were ordered to be returned.

Orders