Balranald Gypsum Pty Ltd v Department of Planning Industry and Environment

[2022] NSWLEC 1010

Land and Environment Court

New South Wales

Medium Neutral Citation:

Balranald Gypsum Pty Ltd v Department of Planning Industry and Environment [2022] NSWLEC 1010

Hearing dates:

Conciliation conference on 15 December 2021

Date of orders:

7 January 2022

Decision date:

07 January 2022

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

1) The appeal is upheld.

2) The land value of Lot 1184 in Deposited Plan 762595 at Ivanhoe Road, Balranald NSW as at 1 July 2019 is $73,900.

3) Each party to bear their own costs of the proceedings.

Catchwords:

OBJECTION TO VALUER GENERAL’s DETERMINATION OF LAND VALUE – conciliation conference – agreement between the parties – orders

Legislation Cited:

Balranald Local Environmental Plan 2010

Land and Environment Court Act 1979, ss 34, 39

Valuation of Land Act 1916, ss 14F, 37, 38, , 40

Category:

Principal judgment

Parties:

Balranald Gypsum Pty Ltd (Applicant)
Valuer General (Respondent)

Representation:

Counsel:
M Seymour (Applicant)
P Rankin (Solicitor) (Respondent)

Solicitors:
Brian V O’Haire (Applicant)
Crown Solicitor of NSW (Respondent)

File Number(s):

2021/263882

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 37 of the Valuation of Land    Act 1916 (Valuation Act) against the Valuer General’s determination of objection dated 7 May 2021 for land owned by the Applicants.

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

2. The statutory power or function to be exercised in determining the proceedings are ss 34(3) and 39(2) of the LEC Act, and s 40(1) of the Valuation Act.

Background

2. The title to the land is Lot 1184 in Deposited Plan 762595 with an address known as Ivanhoe Road, Balranald NSW 2715 (the Land).

3. The Land has an area of 148.09ha and it is zoned RU1 (Primary Production) zone under the Balranald Local Environmental Plan 2010.

4. The land is valued having regard to s 14F of the Valuation Act, and it is considered the highest and best use of the Land is for gypsum mining and grazing of livestock. The mine is nearing the end of its economic life.

5. The Land is located immediately north of Balranald.

6. The Valuer General’s issued land value pursuant to s 14F of the Valuation Act of $79,000 as at 1 July 2019.

7. The following Schedule details the calculations made for the purposes of these proceedings to determine the value of the Land pursuant to s 14F of the Valuation Act:

^{Figure 1: Valuer General’s Schedule of calculations made for the purposes of these proceedings to determine the value of the Land pursuant to s 14F of the Valuation Act.}

8. The Applicant was dissatisfied with the determination

9. The Applicant appealed the Valuer General’s determination of value on 20 July 2021.

Legislation

Valuation of Land Act 1916

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).

(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.

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.

10. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 15 December 2021. I presided over the conciliation conference.

11. 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 the Court upholding the appeal, and the parties agreeing to the valuation of the Land pursuant to s 14F of the Valuation Act as at 1 July 2019

12. 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 ss 34(3) and 39(2) of the LEC Act and s 40(1) of the Valuation Act to determine the valuation of the Land as at 1 July 2019 to be $73,900.

13. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

1. The Valuer General made a determination of the value of the Land as at 1 July 2019 on 7 May 2021 in accordance with s 14F of the Valuation Act.

2. The Applicant was dissatisfied with the Valuer General’s determination of Land value.

3. The Applicant was out of time in accordance with s 37(1) of the Valuation Act to file an appeal, and the Court granted leave to the Applicant to file the appeal in accordance with s 37(2) on 24 September 2021.

4. The parties reached agreement as to the Land value and filed a s 34 Agreement on 15 December 2021.

5. In accordance with s 40(1)(b) I shall make Orders upholding the appeal, and determine the Land value, as agreed by the parties, as at 1 July 2019 at $73,900.

14. 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) of the LEC Act.

15. 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.

16. The Court orders:

1. The appeal is upheld.

2. The land value of Lot 1184 in Deposited Plan 762595 at Ivanhoe Road, Balranald NSW as at 1 July 2019 is $73,900.

3. Each party to bear their own costs of the proceedings.

…………………………

M Peatman

Acting Commissioner of the Court

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Decision last updated: 07 January 2022