Averala Pty Limited v Valuer-General
[2006] NSWLEC 258
•05/05/2006
Land and Environment Court
of New South Wales
CITATION: Averala Pty Limited & anor v Valuer-General [2006] NSWLEC 258 PARTIES: APPLICANTS
RESPONDENT
Averala Pty Limited (Matters 05/30897 and 05/30898)
Michael Tchadovitch (Matter 05/30899)
Valuer-GeneralFILE NUMBER(S): 30897, 8 & 9 of 2005 CORAM: Moore C KEY ISSUES: Valuation of Land :- LEGISLATION CITED: Valuation of Land Act 1916 DATES OF HEARING: 4 & 5 May 2006 EX TEMPORE JUDGMENT DATE: 05/05/2006 LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Mr A Hyam, barrister
INSTRUCTED BY
Rosier Partners
Ms A Pearman, barrister
INSTRUCTED BY
NSW Crown Solicitor
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMoore C
05/30897 AVERALA PTY LTD v VALUER GENERAL5 May 2006
05/30898 AVERALA PTY LTD v VALUER GENERAL
05/30899 MICHAEL TCHADOVITCH v VALUER GENERAL
INTERIM JUDGMENT (IN MATTER 05/30899)
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
1 COMMISSIONER: These appeals, pursuant to s 37 of the Valuation of Land Act 1916 (the Act), are to a number of statutory valuations as at a base date of 1 July 2004. There are two applicants in the three separate matters. With respect to the last of the matters, Mr Tchadovitch is the objector. In the other two, a company of which Mr Tchadovitch is a director is the objector.
2 The three appeals involve 23 Norfolk Place, North Richmond; 23A Norfolk Place, North Richmond and 28A Norfolk Place, North Richmond.
3 On the view which was undertaken yesterday of a number of sites, it was agreed that the evidence in each of the proceedings would be taken as evidence in the others.
4 As the evidence has unfolded disclosing a difficulty in obtaining strict comparisons between the material provided by the expert valuers, Mr Dobrow for the objectors and Mr Brogan for the respondent, it was agreed between the parties that this afternoon, in order to endeavour to provide some guidance to the parties to see if appeals 05/30897 and 05/30898 could be resolved, I would give what amounts to an interim finding in appeal 05/30899 relating to 28A Norfolk Place, North Richmond.
5 Mr Brogan and Mr Dobrow were of considerable assistance in the witness box in taking me through their differences over elements in an adjustment table prepared, electronically, by Mr Dobrow.
6 As a consequence, after I gave a series of short determinations on the various elements of adjustment where there were differences between them as to the appropriate percentage adjustment required, I arrived at deduced land values for this objection site:
- of $181,000 from the comparison sale at Flinders Place, North Richmond;
- of $268,000 from the comparison sale at Ivy Street at McGrath’s Hill; and
- of $408,000 from the comparison sale at Riverview Street, North Richmond.
7 Mr Hyam, counsel for the applicants, has provided me, as part of his submissions, a portion of an article entitled “The Use of Comparable Sales for Market Valuations” which appeared in the February 1991 edition of The Valuer commencing at page 332. The article was authored by Mr Patrick Rowland.
8 Mr Hyam asks me to have regard to a proposition put by Mr Rowland, on the opening page of that article. This submission essentially asks me to consider whether or not a hypothetical purchaser of the property at 28A Norfolk Place would also stand, appropriately, as a hypothetical purchaser for any or all of the substitutional sales that are urged on me as comparable sales.
9 He put that I should adopt and apply the proposition being expressed in the article, “the property sold is a comparable sale if the buyer would have considered the property to be valued as an alternative”, those being Mr Rowland’s words. I propose so to do.
10 I am satisfied that, in this case, the comparable sale at Flinders Place would have been considered by the buyer of 28A Norfolk Place as a possible alternative in the same market.
11 I am satisfied that the same proposition applies to the property at Ivy Street at McGrath’s Hill.
12 These conclusions are subject, in both instances, to differences between the properties. The three of them (28A Norfolk PLace and the two comparable sales) are properties with outlooks towards the river (although in differing directions and aspects) across what is (and will remain for the foreseeable future) vacant land which should be regarded as open space not likely to be developed.
13 Although in the case with Ivy Street it is not, in fact, open space, (being private land) it is the position from its present and approved pre-school development and zoning that it is not likely to be developed to obscure or obstruct the outlook from the sale site.
14 Therefore, those three sites are all ones which the same hypothetical purchaser might have considered.
15 I am satisfied that a hypothetical purchaser of the Riverview Street property would not be the same hypothetical purchaser of 28A Norfolk Place. The Riverview Street property:
- is significantly further away from the open space;
- lacks the same degree of pleasance of outlook as the other three sites;
- is closer, as was pointed out, to the shopping centre with the attendant noise and bustle; and
- is on a through element of a street whereas each of the other sales are in cul-de-sacs (whether at the head or somewhere on the stem of the cul-de-sac).
16 I therefore consider it appropriate to discard the Riverview Street sale for the purposes of this determination.
17 There are a number of significant differences (that I do not propose to go through in detail) that would make the purchaser apply different considerations to Flinders Place and Ivy Streets sites. They relate to matters such as access; difficulty to build; developable area; proximity to the river and the like.
18 I am satisfied overall, taking them together and doing this on a very brief basis to provide some guidance and assistance to the parties, that the deduced value for the Flinders Place site is intuitively low. I am satisfied that the deduced value for the Ivy Street property is, perhaps, at or marginally higher than would be appropriate for the 28A Norfolk Place objection site taking into account all of the adjustments between the two locations.
19 In summary, without trying at this stage of the proceedings to go through the matters in detail, I am satisfied that the 28A Norfolk Place property would probably be a more pleasant place to live compared to the Ivy Street property but that the Ivy Street property would have a number of advantages arising from its location.
20 Doing as best I am able, without attempting to republish the table of adjustments that have been dealt with by the witnesses, I consider that an appropriate analysed resultant land value for 28A Norfolk Place would be somewhere between $250,000 and $265,000 as at 1 July 2004.
21 The applicants bear, by virtue of the terms of s40(2) of the Act, the onus of establishing that the statutory valuations should be disturbed.
22 The applicants had, in each instance, it was conceded by the respondent at the commencement of the proceedings, already discharged the necessary onus to disturb the value as the value contended for by the respondent, in each of the proceedings, was lower than that which had been entered on the valuation roll.
23 I have given this interim decision in an endeavour to assist the parties to resolve the remaining matters. However, the opportunity will be provided to address the other two sites and to re-agitate these interim findings.
24 Any further joint report may be done based on all the three comparison sales – those being Riverview Street, Flinders Place and Ivy Street. However, the parties now have my view on the utility of the Riverview Street sale and the parties will obviously need to persuade me why I should discard that position if either of them wishes to re-enliven Riverview Street sale for comparative purposes.
25 I therefore give the following directions:
- The matter is set down for further hearing before me at 10am on 9 June;
- The parties are to file a further joint report from the valuers by the close of business on 5 June;
- By the close of business on 5 June, the second applicant is to provide the respondent, electronically in accordance with Practice Direction 2 of 2005, with Mr Dobrow’s spreadsheet for 28A Norfolk Place;
- The further joint report in (2) is to be filed electronically, in accordance with Practice Direction 2 of 2005, with a separate Court communication to be sent advising that this has been filed;
- Liberty to relist before me on two days notice;
- If either party wishes to re-agitate this interim decision concerning 28A Norfolk Place, that party is to notify the other party (by letter) and the Court (by E-court) by the close of business on 5 June; and
- If neither party notifies the other and the Court that it wishes to re-agitate this interim decision concerning 28A Norfolk Place, I will make orders in chambers confirming a value for that property, as at 1 July 2004, of $255,000.
26 I also indicate that I have not had a reference to me, under the Land and Environment Court Act 1979, of the issue of costs in these proceedings. If either party wish to agitate the issue of costs, this issue has to be dealt with separately by a Notice of Motion.
- Tim Moore
Commissioner of the Court
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