Boensch v Valuer-General of New South Wales

[2025] NSWLEC 1458

Land and Environment Court

New South Wales

Medium Neutral Citation:

Boensch v Valuer-General of New South Wales [2025] NSWLEC 1458

Hearing dates:

24 and 26 March 2025, 7 April 2025.

Date of orders:

27 June 2025

Decision date:

27 June 2025

Jurisdiction:

Class 3

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) The Land Value for Lots 37 and 38 in Deposited Plan 14244 for the Base Date of 1 July 2022 is $1,260,000 in accordance with ss 6A(1) and (2) of the Valuation of Land Act 1916.

(3) The exhibits are retained.

Catchwords:

VALUATION OF LAND — correct information and methodology to apply as at valuation date

Legislation Cited:

Land and Environment Court Act 1979, ss 19, 39

Valuation of Land Act 1916, ss 4, 6A, 14A, 14L, 26, 29, 35C, 37, 38, 40

Parramatta Local Environmental Plan 2011

Cases Cited:

Arcus Shopfitters Pty Ltd v Western Australian Planning Commissioner [2002] WASC 174; (2002) 125 LGERA 180

Bone v Wallalong Investments [2012] NSWSC 137

Chircop v Transport for NSW [2014] NSWLEC 63

DBW Reynolds Pty Ltd as trustee for the DBW Reynolds Family Trust v Public Transport Authority [2023] WASC 165

Everest Project Developments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 & the Roads and Traffic Authority of New South Wales [2010] NSWLEC 88

Hammock Investments Pty Ltd v Valuer General of New South Wales [2024] NSWLEC 1673

Kelliher v Commissioner for Main Roads (No 2) [2015] WASC 478

Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413; [1999] HCA 25

Kogarah Town Centre Pty Ltd v Valuer-General (No 3) [2014] NSWLEC 1124

Limina Holdings Pty Ltd ATF Galileo Superannuation Fund v Valuer-General of New South Wales [2019] NSWLEC 110

McKay v Commissioner for Main Roads (No 7) [2011] WASC 233

NSW Cremation Co Pty Ltd v Valuer-General [2016] NSWLEC 135

Parramatta City Council v Valuer-General (1964) 10 LGRA 160

Roads and Traffic Authority of New South Wales v Mosca (2006) 146 LGERA 335; [2006] NSWCA 159

Sales and Ors v Transport for NSW (No 2) [2021] NSWLEC 96

Secretary to the Department of Economic Developments, Jobs, Transport & Resources v Manor Lakes (Werribee) Pty Ltd [2017] VSCA 114

Vilro Pty Ltd v Roads and Traffic Authority (NSW) (2010) 179 LGERA 47; [2010] NSWLEC 234

Warwick Farm Central Pty Ltd v Valuer-General [2024] NSWLEC 25

Willis v Roads and Maritime Services (NSW) [2015] NSWLEC 165

Texts Cited:

Parramatta Development Control Plan 2011

Category:

Principal judgment

Parties:

Franz Boensch (Applicant)
Valuer-General of NSW (Respondent)

Representation:

Counsel:
F Boensch (Self-represented) (Applicant)
B Goodyear (Respondent)

Solicitors:
Self-represented (Applicant)
Crown Solicitor of NSW (Respondent)

File Number(s):

2023/296844

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant has appealed the Valuer-General’s valuation of land pursuant to s 6A(1) of the Valuation of Land Act 1916 (VL Act) as at the Base Date of 1 July 2022 (Base Date) in relation to the land known as 255 Victoria Road, Rydalmere NSW 2116 and being the whole of the land in Lots 37 and 38 in Deposited Plan 14244 (Land).

2. The Agreed Chronology (Ex A tab 6 CB 95-96) provides the following details:

1. On 22 July 2022 the Valuer-General issued a Notice of Valuation for the Land as at the Base Date valuing the Land pursuant to s 6A of the VL Act at $1,400.000 (Valuation)

2. On 18 March 2023 the Applicant lodged an objection to the Land value pursuant to s 29(3A) of the VL Act.

3. On 30 March 2023 Mr Murray Allen, registered Valuer employed by the Valuer-General makes a recommendation that the Land Value be reduced to $1,260,000.

4. On 3 July 2023 the Applicant lodges a Further Objection to the changed Land Value of $1,260,000 pursuant to s 29(3A) of the VL Act.

5. On 19 July 2023 the Valuer-General allows a partial objection to the Land Value reducing it to $1,260,000 pursuant to s 35C(2) of the VL Act.

6. On 18 September 2023 pursuant to s 37(1) of the VL Act the Applicant files an appeal in this Court, and the appeal is filed in accordance with the time provisions in s 38(1) of the VL Act.

3. The Applicant contends for a value for the Base Date of $675,000. The Valuer-General has valued the Land as at the Base Date at $1,260,000.

4. The Applicant constructed a retaining wall on his boundary adjacent to Subiaco Creek. The Valuer-General accepted the retaining wall as a Land improvement as defined by s 4(1)(e) of the VL Act.

5. The Land has the following characteristics:

1. It comprises two adjoining allotments, with Lot 37 being a rectangular shaped parcel of 183.3m², and Lot 38 being an irregular almost triangular shaped allotment of 417.3m² which adjoins a natural watercourse known as Subiaco Creek on the eastern side. The total area of the Land is 600.8m². Pursuant to s 26 of the VL Act, both Lots 37 and 38 in Deposited Plan 14244 are included in the one valuation.

2. The two lots have a total northern frontage to Victoria Road of 11.15m, a rear (southern) boundary on Mary Parade of 32.64m, a western side boundary of 30.48m, and an eastern side boundary being the high-water mark of Subiaco Creek.

Figure 1 from Mr Galanos’s Valuation Report with the Land being depicted in yellow highlight. The aerial photography and cadastral mapping obtained from the “RP Data property…” (Ex F tab C2 EB 1829)

3. The Land has a gentle to moderate cross-fall from west to east with vehicular access from both Victoria Road and Mary Parade. The Land has good exposure to Victoria Road (a main thoroughfare consisting of 6 lanes), however, the access is off a quieter street also called Victoria Road which is bitumen sealed road with concrete kerb and guttering.

4. All essential services of electricity, town water and sewer are available and connected to the Land.

5. Pursuant to Parramatta Local Environmental Plan 2011 (PLEP 2011) the Land is zoned IN2 Light Industrial.

6. Parramatta City Council’s (Council) Flood Map (Ex B tab A1, EB 18) (the Blue Map) shows Subiaco Creek running down the page, with the Land marked in red. The chainages on the Blue Map most relevant are chainages 4200 and 4212, which are marked up in straight red lines which identifies the maximum flood levels on the Land. The Land is identified as mostly within the “High Risk Area”, and partly within the “Medium Risk Area” or “Low Risk Area” (Ex F tab B1 Figures 2 on Ex F EB 1722 and Local Flood Risk categories showing subject land and comparable sales on Ex F EB 1763):

1. 5.4m AHD for the 5% AEP flood event.

2. 6.08m AHD for the 1% AEP flood event; and

3. 9.57m AHD for the PMF flood event.

7. As can be seen from the Blue Map and its legend, the Land is partially affected by the “20 year flood” (light blue shading), and more so by the “100 Year Flood” (dark blue shading). The Blue Map is dated 30 September 2011 and would have been available to a hypothetical purchase of the Land as at the Base Date. Mr Allen, for the Valuer-General, relied upon the principles in Hammock [1] at [21]-[22], and in particular that there must be attributed to the parties a knowledge of all matters that affect its value; the seller and purchaser are assumed to be perfectly acquainted with the land, and cognisant of all circumstances which might affect its value; and buyers and sellers have access to all currently available information that affects the property.

   1. Hammock Investments Pty Ltd v Valuer General of New South Wales [2024] NSWLEC 1673 at [21]-[22].

8. The Red Map is extracted from Council’s “Know Your Flood Risk” website (Ex C tab A6 EB 469; and Ex F tab C1 at EB 1783). The Red Map shows the flood affectation of the Land and its surrounds by area coloured:

1. Red: being the “High Risk” areas, where “frequent flooding is common, this area will see the fastest flowing and deepest water”;

2. Orange: being the “Medium Risk” areas where “Flooding will be rare but this area has the potential for deep and fast flowing water” and

3. Yellow: being the “Low Risk” areas, where “Flooding is extremely rare but when this happens flooding will cover a large area with dangerous water in many places.”

9. Although the Applicant objected to tender of the “Red Map” it has been attached to his evidence. The Applicant was invited to cross examine Mr Dhiacou on the Red Map, which he did, and I note the Valuer-General submitted that the only inference reasonably available was that the Red Map was available to a potential purchaser at the Base Date. Having heard the cross examination of Mr Dhiacou by the Applicant I accept that the Red Map would have been available to a potential purchaser at the Base Date. (see para [26] below)

Legislation

Valuation of Land Act 1916

6. 6A   Land value

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.

…

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.

Legal Principles

7. The Court acts as a judicial valuer. [2]

   2. Kogarah Town Centre Pty Ltd v Valuer-General (No 3) [2014] NSWLEC 1124 at [53], [71].

8. Pursuant to s 40(2) of the VL Act, the Applicant bears the onus of proving its case. This is said to mean that the Applicant must establish that the issued land value is too high. [3]

   3. Warwick Farm Central Pty Ltd v Valuer-General [2024] NSWLEC 25 at [31] per Pritchard J (Warwick Farm).

9. If I, as judicial valuer, determine that the relevant land has a land value of less than the amount determined by the Valuer-General, this onus will be discharged. If the Applicant does not discharge its onus, the appeal must be dismissed and the issued Land value for 1 July 2022 stands. [4]

   4. Kogarah at [77].

10. The Court is not confined to accepting the case of one party or the other party and may use the evidence adduced in the proceedings or draw on the experience of the Court to make its own assessment. [5]

    5. Warwick Farm at [37].

11. The task under s 6A of the VL Act is to determine the land value of the fee simple in its unimproved state by assuming improvements (other than land improvements) have not been made. In the present case it is necessary for the Court and the valuer to assume that the improvements on the Land have not been made.

12. Section 6A(1) also requires the postulation of a notional sale which is assumed to take place in a market and the seller would conclude the sale for the highest price it could obtain in that market. [6]

    6. Trust Company of Australia Ltd v Valuer-General (2007) 154 GLERA 437, [2007] NSWCA 181 at [32].

13. For the purposes of that notional sale, value is determined by:

1. Forming an opinion as to what a willing purchaser will pay and not an unwilling vendor will receive for the property. In determining that value, there must be attributed to the parties a knowledge of all matters that affect its value;

2. Supposing both the seller and the purchaser to be perfectly acquainted with the land, and cognisant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property; and

3. Assuming an efficient market in which buyers and sellers have access to all currently available information that affects the property. [7]

   7. Kenny & Good Pty Ltd v MGICA (1992) Ltd 199 CLR 413; [1999] HCA 25 at [49]-[51] (Kenny & Good).

14. The value of the Land is to be determined on the basis of the highest and best use of the land. [8]

    8. Turner v Minister of Public Instruction (1956) 95 CLR 245; [1956] HCA 7 at p 283.

15. There is no explicit recognition in the VL Act of the highest and best use of the land concept, but the Australian Property Institute considers it to be “the use of the property that maximises its potential which is physically possible, legally permissible, and financially feasible”. [9]

    9. Limina Holdings Pty Ltd ATF Galileo Superannuation Fund v Valuer-General of New South Wales [2019] NSWLEC 110 at [91] (Limina).

16. The Court should approach the task by determining what was the “most profitable potential use” of the land, [10] having regard to planning and all other relevant factors affecting its present and future potential. [11]

    10. Vilro Pty Ltd v Roads and Traffic Authority (NSW) (2010) 179 LGERA 47; [2010] NSWLEC 234 at [17].

    11. Willis v Roads and Maritime Services (NSW) [2015] NSWLEC 165 at [24].

17. The value of the land is determined by ascertaining what a willing purchaser would pay and what a not unwilling vendor would receive for the property. [12]

    12. Kenny & Good at [49].

18. The parties to the hypothetical sale are assumed to be “fully informed” and to make “all proper enquiries”. [13]

    13. Everest Project Developments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 & the Roads and Traffic Authority of New South Wales [2010] NSWLEC 88 at [58]

19. The land must be valued at the relevant date in its existing condition with all its potentialities as potentialities. [14]

    14. Roads and Traffic Authority of New South Wales v Mosca (2006) 146 LGERA 335; [2006] NSWCA 159 at [15].

1. In considering the potentialities of the relevant land, the valuer may take into account not only the present use to which the land is applied but any more beneficial use to which it may reasonably be applied. [15] This exercise is underpinned by concepts of feasibility, realism, practicality and reasonableness reviewed in the context of all the ‘circumstances’ of the land. [16] However, consideration must only be given to ‘realistic options’, [17] and remote and speculative possibilities are to be disregarded. [18]

   15. Limina at [113].

   16. Limina at [113].

   17. Limina at [116].

   18. DBW Reynolds Pty Ltd as trustee for the DBW Reynolds Family Trust v Public Transport Authority [2023] WASC 165 at [71(x)] per Martin J.

2. Any future beneficial use must be assessed as follows:

1. The onus is on “the person or authority seeking to establish a value based upon some different use from that which is authorised by the restrictions the burden of showing the practicability or reasonableness of the land being devoted to some such use: and needless to say, this extends to showing the probability of some relaxation or variation of the scheme and the means by which that is likely to be achieved” (Parramatta City Council v Valuer-General (1964) 10 LGRA 160, Else-Mitchell J at top of page 170).

2. In Kelliher v Commissioner for Main Roads (No. 2) [2015] WASC 478 Pritchard J held at [105] that “the concept of highest and best use requires that the valuation take into account the potential of the land to be used for that more profitable use (after necessary planning approval)”; and at [106] “in the context of a question about the prospects, at the date of valuation, of future planning permission being given for a particular (more profitable) use, it is well established that the question is to be approached objectively, by reference to orderly and proper planning, not subjectively by reference to the likelihood of particular decision-makers approving the contemplated future use: McKay v Commissioner of Main Roads (No 7) [2011] WASC 233 [307] (Beech J), citing Trandos v Western Australian Planning commission [2001] WASCA 346; (2001) 117 LGERA 256 [73] (Anderson J, Wheeler J & Einfield AJ agreeing); see also De Ieso v Commissioner for Highways (1981) 27 SASR 248; (1981) 47 LGRA 412, 253 (Wells J).”

3. In Secretary to the Department of Economic Development, Jobs, Transport & Resources v Manor Lakes (Werribee) Pty Ltd [2017] VSCA 114, the Victorian Court of Appeal observed at [40] that “[i]n the event that the potential requires the implementation under a planning scheme of regulatory change or the construction of public services such as a mains sewer, urban water supply or road link, it will be necessary for the valuer to take into account the risks and contingencies affecting the realisation of the potential which gives the land its market value.”

4. In Limina Sheahan J held that the ‘real world’ complications with the site overwhelmed the Valuer-General’s opinion and hypothesis in that case. [19]

   19. Limina at [128].

3. It is well established that, if comparable sales are available, the direct comparison of sales evidence approach is the conventional method of valuation. [20]

   20. Sales and Ors v Transport for NSW (No 2) [2021] NSWLEC 96 at [191] per Robson J; NSW Cremation Co Pty Ltd v Valuer-General [2016] NSWLEC 135 at [84] per Robson J.

4. In using the comparable sales method, the valuer must explain which of the sales is the most important comparable sale and why, and what adjustments have been made to reach a conclusion about the value of the relevant land. The direct comparison method may involve four steps:

1. First, accumulation of a pool of potentially comparable sales.

2. Secondly, analysis to convert them to a common basis of measurement such as a unitary rate (for example, per m²) improved or unimproved (through allowance for existence or absence of improvements).

3. Thirdly, adjustment to reflect identified differences between them and the subject property (e.g. size, location, use, and date). Too much adjustment may make it unsafe to use a sale.

4. Fourthly, application of the adjusted unitary rates of the potentially comparable sales to the subject property in order to determine its value. This may involve attributing differing weight to the different comparable sales according to their degree of comparability (for example, direct, indirect or limited). [21]

   21. Arcus Shopfitters Pty Ltd v Western Australian Planning Commissioner [2002] WASC 174; (2002) 125 LGERA 180 at [78] per Pullin J (Arcus); Bone v Wallalong Investments [2012] NSWSC 137 at [32-33] per Dougall J.

5. Whether a sale is sufficiently comparable is a question of fact and degree and, although some adjustment is always necessary, too much adjustment will render it unsafe to use. [22]

   22. Chircop v Transport for NSW [2014] NSWLEC 63 at [35] per Biscoe J.

Issues

20. The issues to be determined are:

1. What evidence would be available to the hypothetical purchaser as at the Base Date of 1/7/2022?

2. Noting the Valuers agreed on all the adjustments to the agreed list of comparable sales (location, date, size, utility, etc) but disagreed on the discount to be applied for the flooding impact on the Land. (Ex F EB 1839). The ‘evidence’ substantially relates to the discount for the impact on the Land of Subiaco Creek.

1. Has the Applicant proved his case in accordance with ss 6A(1) and (2), and 40(2) of the VL Act?

Expert evidence

21. Various objections were raised by the Applicant and the Valuer General. With the exception of those pages specifically excluded from the tender material, the further objections are to be dealt with in relevant cross examination, or the weight I give to such evidence.

22. The documents excluded from the relevant tenders were as follows:

1. Ex D Evidence Book Volume 3 excluding the Final Flood Study Report by Stantec Dated 13/6/2024, commencing at EB 948 to 111. [23]

   23. Tcpt, 24 March 2025, p 3(15-18).

2. Ex E Evidence Book Volume 4 excluding EB 1115-1202 which is the remainder of the Stantec Report 13/6/24. [24]

   24. Tcpt, 24 March 2025, p 4(46-48).

3. Ex F Evidence Volume 5 excluding pages 1486 to 1665; 1686 to 1678, 1679 to 1712. Noting that the Red Map on EB 1673 will be the subject of cross examination. [25]

   25. Tcpt, 24 March 2025, p 14(11-14).

4. Ex G Bundle of Documents prepared by the Applicant, admitted subject to weight. [26]

   26. Tcpt, 24 March 2025, p 16(27-29).

Hydrology

23. The Applicant did not lead any expert evidence in the area of hydrology, and relied upon his own research and extracts from Parramatta City Council’s (Council) files and Council’s website.

24. The Respondent relied upon the Individual Expert Report on Flooding by Daniel Dhiacou dated July 2014 and filed on 18 July 2024 (Ex F tab B1, pp EB 1713 – 1763) (Dhiacou Report).

25. In opening the Applicant raised an objection to reliance upon the map in Appendix F to the Dhiacou report (Red Map). In examination in chief Mr Dhiacou’s response to the objection was as follows:

1. “I got it from the respondent’s statement of facts.” [27]

   27. Tcpt, 24 March 2025, p 22(20).

2. “So it is based on four flood studies the SMEC Flood Study 2004: the SKM Flood Study 2005 and 2006, and the SMEC Flood Study 2013. The information – the data from those four flood studies are combined in a visual representation to show – to produce the Red Map.” [28]

   28. Tcpt, 24 March 2025, p 22(38-41).

3. In response to the question: “What part or significance does the red map play in your analysis in your expert report?”, Mr Dhiacou replied: “It doesn’t play any importance really. It just is a visual representation of the data in those four flood studies, and as a flooding expert I’ve relied on the data at each individual site in those four flood studies. So it’s a nice pretty picture, but the data that underlies it is what’s important from my point of view.” [29]

   29. Tcpt, 24 March 2025, p 22(43-48).

4. In response to the question: “1 July 2022 to 30 March 2023, are you aware of any flood studies published containing data that could be fed into and populated the Red Map?, Mr Dhiacou replied: “No I’m not.” [30]

   30. Tcpt, 24 March 2025, p 23(4-6).

26. Mr Dhiacou’s evidence in chief in set out below, and extracted from the Dhiacou Report.

1. As there is no available site survey information, I have instructed and supervised MA (Martens & Associates Pty Ltd) staff to review Light Detection and Ranging (LiDAR) data provided by Intergovernmental Committee on Surveying and Mapping (CSM 2019), which indicates that site ground levels are 1.72-6.04 metres above the Australian Height Datum (m AHD). Site levels are highest at the north western site boundary and fall towards the south eastern site boundary towards Subiaco Creek.

2. The flood certificate (Figure 1) indicates the following maximum site flood levels, based on the SKM flood studies (dated 2005 & 2006):

   (a)   5% annual exceedance probability (AEP) or in in 20 average recurrence interval (ARI) – 5.40m AHD.

   (b)   1% AEP or 1 in 100 ARI – 6.08m AHD.

   (c)   Probable maximum flood (PMF) – 9.57m AHD.

3. Based on the available LiDAR and flood levels, flood depths at the site are approximately:

(a)   5% AEP – approximately range from 0.00-3.68m. The south eastern portion of the site adjacent to Subiaco Creek is inundated in this event, while the north western portion of the site if flood free.   

(b)   1% AEP – approximately range from 0.04-4.36 m. The site is completely inundated in the 1% AEP flood with only very shallow flood depths at the north western portion of the site.

(c)   PMF – approximately range from 3.53-7.85 m.

1. The SKM flood study 2006 indicates that the 1% AEP site flood velocity ranges from 0.93 to 1.28 m/s. These flow velocities are unlikely to cause erosion or scour at the site, which would begin to occur at approximately 1.3-1.8 m/s for gravel and 1.8 m/s for grass CPAA Manual).

2. The Council ‘Know Your Flood Risk’ website …….identifies the site as mostly within the ‘High Risk Area’, and partly within the ‘Medium Risk Area’ or ‘Low Risk Area’ (Figure 2). These are defined as:

   (a)   High Risk Area: ‘High hazard flood area within the 1% …AEP (1:100)’.

   (b)   Medium Risk Area: ‘Medium and low hazard area in the 1% AEP (1:100)’.

   (c)   Low Risk Area: ‘Area from the 1% AEP (1:100) up to the Probable Maximum Flood.

3. A summary of the site flood characteristics is tabulated in Appendix D.”

4. Based on the site flood characteristics, I consider compensatory earthworks to be acceptable on the site to achieve an improved development footprint, subject to the outcomes of the site-specific flood modelling. These compensatory earthworks would be required to ensure no loss of flood storage on site to prevent cumulative offsite flood impacts.”

Appendix F – Local Flood Risk Categories showing subject land and comparable sales – Ex F tab B1 EB 1763 (Referred to in the proceedings as the ‘Red Map’)

27. In Part 3 (EB 1725 [23]) of the Dhiacou Report, Mr Dhiacou considers the site flooding development controls imposed by Council in relation to permissible development within the IN2 – Light Industrial Zone. Mr Dhiacou then applies the Council’s controls in its Development Control Plan 2011 (DCP 2011) in the medium flood category risk based on Table 2.4.2.1.2 of DCP 2011, inter alia as follows:

“(a)   The habitable floor flood planning level is the 1% AEP flood level plus 500 mm freeboard (6.58 mAHD).

(b)   All structures would be required to have flood compatible building materials up to the 1% AEP floor level plus 500 mm freeboard (6.48m AHD) and to be certified to this level against the forces of floodwater, debris and buoyancy.

(c)   The proposed development should demonstrate no increase to flood effects offsite, having regard to loss of flood storage, changes in flood levels and velocities, and the cumulative impact of multiple potential developments in the floodplain. Based on the site flood affectation, these criteria could be met with compensatory cut and fill that demonstrates no loss of flood storage in the 1% AEP event, supported by site specific flood modelling to demonstrate acceptable changes to offsite flood characteristics.

(d)   Garages and enclosed car parks are to be protected to the 1% AEP flood level (6.08m AHD) by either elevating the parking areas, or providing restraints or vehicle barriers.

(e)   Any basement ramp should be at or above the 1% AEP flood level plus 500 mm freeboard (6.58m AHD).

(f)   There is no control for enclosed carpark levels, but if it is below the 1% AEP flood level (6.08m AHD) adequate warning systems, signage and exits are required.

(g)   Reliable pedestrian or vehicular access is requiredto an area of refuge above the PMF level. This can be provided either off-site or on-site with an upper storey above the PMF level (9.57m AHD).

(h)   A flood emergency response plan or similar is required.

1. There can be no storage of materials below the 1% AEP flood level (6.08m AHD).”

   28. In Part 5 of the Dhiacou Report (Ex F tab B1 pp EB1730-1735) Mr Dhiacou proposes 2 site development options, but firstly sets out the existing site conditions:

Dhiacou: Figure 4: Existing site conditions (Ex F EB 1732)

1. Option 1: compensatory works only. Option 1 is shown in Figure 5 (Ex F EB 1733).

Dhiacou: Figure 5: Proposed Development Scenario 1: compensatory works only

2. Option 2: compensatory works plus a suspended structure: Option 2 is shown in Figure 6 (Ex F EB 1733). I have not copied Option 2 as it was ultimately not relied upon by either valuer.

3. Mr Dhiacou has utilised the LiDAR Mapping for Figures 4 and 5 above.

4. Mr Dhiacou’s evidence, as extracted from Ex F EB 1731, EB 1732, and EB 1741 is set out below:

“37   For both Scenarios 1 and 2, flood modelling would be required to confirm acceptable offsite flood impacts. …..

38.   In my view, both of these options comply with the PDCP 2011 flood planning requirements and allow for development of a large portion of the site, and in the case of Scenario 2, the majority of the site. The concept designs therefore demonstrate that the site development potential is constrained by the flood affectation to some extent, but development options exist at the site.

…

53   In summary, I do not consider the site’s flood affectation makes the site development impossible. Rather, the two conceptual site developments demonstrate that development options exist with respect to flooding and the site could be successfully developments (sic) for commercial or industrial purposes.”

29. Throughout the hearing Mr Boensch raised the issue of development being designed to take into account the PMF. As set out in Mr Dhiacou’s evidence, the 1% AEP is 6.08m AHD and the PMF is 9.57m AHD. However, for the purposes of developing the subject land the design criteria to the PMF is the incorrect test. The correct test is set out in Council’s DCP 2011, Table 2.4.2.1.2 which requires development to comply with the 1% AEP and not the PMF.

Valuation - Applicant

30. Mr Constantine Dean Galanos gave valuation evidence for the Applicant. Mr Galanos’s evidence in chief, extracted from his Valuation Report (Ex F tab C2), is set out below:

1. The zoning of the Land is E4 General Industrial pursuant to PLEP 2023. (Ex F, tab C2, EB 1832 [34]; tab C3, EB 1851 [7])

2. [39] “Flooding is however clearly a significant issue with the Subject Property.” (Ex F EB 1833)

3. [46] “I have been provided with a copy of a survey plan (prepared by John P Bald dated 04 May 1993 or the Bald Survey…” (Ex F EB 1834)

4. [47] “I have also sighted an extract of the Parramatta City Council Flood Map… Noting that the Eastern portion of the land sits in line with Subiaco Creek (a known floodway), some 80% and/or more of the land (by area) accordingly is therefore exposed to potential egregious levels of impairment vis-à-vis flood impact.” (Ex F EB 1834)

5. [49] “I have reviewed the Hazard Vulnerability Classification (PMF) Parramatta River Study (prepared by “Stantec…dated 30 May 2023). That plan clearly shows the subject property to have up to 40% of its area impacted either by H5 or H6 categories”. (Ex F EB 1834)

6. [50] “Notwithstanding the above, I note that the ‘footprint’ or ‘legend’ in the Stantec Plan appears to show a building footprint larger than the current actual building footprint. This may be a result of that surveyors’ confusion vis-à-vis the shed; but in any case the impacted areas are (in reality) likely to be greater than that shown on the map, and in my estimation possibly up to 80-90%.” (Ex F EB 1834)

7. [69] “As previously noted, the subject property is burdened with no insubstantial inundation risk…These risks clearly make redevelopment of the land financially unviable and unsustainable, despite any (theoretical or other) impetus notionally supporting any such outcome.” (Ex F EB 1837)

8. [71] “There clearly appears to be a paucity of suitable directly comparable sales evidence in this matter, having regard to the factors that burden the land. In order to illustrate the impact on value vis-à-vis physical impairment caused by flooding, I have accordingly had reference to discount factors/allowances (made by the market) for said physical impairment.” (Ex F EB 1838)

9. [72] “There are residential land holdings…within the Liverpool LGA…that are subject to drainage detention restrictions during the initial years of the development period. Generally the sales of these…water detention sites…occurs off market and these in most cases reflect a discount to residential lots that are otherwise unencumbered in this manner…” (Ex F EB 1838)

10. [73] “The restriction is temporary in nature and falls away in say circa 5-10 years, as distinct from the situation in this instance where the affectation is, for all intents and purposes, in perpetuity (and therefore permanent and where the discount should rationally be higher).” (Ex F EB 1838)

11. In Part 4.2 Mr Galanos applies the direct comparison method to determine the value of the Land, noting:

1. The Valuers agreed on all the adjustments to the agreed list of comparable sales (location, date, size, utility, etc) but disagreed on the discount to be applied for the flooding impact on the Land. (Ex F EB 1839)

2. Applying the analysis of the drainage detention allotments in Liverpool LGA, Mr Galanos applies a further adjustment (discount) of between 58% - 83% making a midpoint of 70%. [77] (Ex F EB 1839)

3. Mr Galanos then determines a range of value for the Unimproved Capital Value of the Land pursuant to s 6A(1) of the VL Act to be between $950/m² to $1,300/m² arriving at a mid-point of $675,000. [80]– [81] (Ex F EB 1840)

12. In the Valuers’ Joint Report (Ex F, Tab C3, pp EB 1851-1853) Mr Galanos states, inter alia:

1. “DG has questioned the veracity of the conclusions (related to development potential and other matters) outlined in the Martens Fooding Report, based upon omission from the …Report, intentional or otherwise, of what DG perceives as key issues of fact and the extent to which flooding otherwise impairs the Subject Property. In that regard, DG gives equal or more weight to flooding evidence provided by the Applicant.” [12]

2. “DG refutes the conclusions drawn from the assertion(s) in the Martens Flooding Report that state (in the first instance) that the land can be redeveloped with compensatory earthworks. DG maintains that whilst the assertions so made in the Martens Flooding report may be correct in principle, they are incorrect from the practical standpoint in that the costs associated with such works make redevelopment economically unviable…” [16]

3. “DG has otherwise relied upon the same comparable sales and agrees with the adjustments made to the land value in regard to the matters listed in Points of Agreement when comparing the sales with the Subject Property, but with the exception of adjustment for flooding. DG accordingly believes the analysed land values require much greater negative adjustments for flooding, when compared with the Subject Property, and has made further adjustments to the analysed land values derived from the sales of between -60% and -70%.” [24]

31. In cross examination Mr Galanos responded as follows:

1. The Land is in the Rydalmere Industrial Precinct and the industrially zoned land has been increasing in value in recent years. [31]

   31. Tcpt, 26 March 2025, p 125(29-37).

2. The Land is well positioned relative to and serviced by an extensive road infrastructure network. [32]

   32. Tcpt, 26 March 2025, p 125(44-47).

3. A potential purchaser of industrial land would consider road access beneficial. [33]

   33. Tcpt, 26 March 2025, p 126(5-14).

4. At Tcpt, 26 March 2025, p 127(28-32), Mr Galanos accepted that he took into account things after the Base Date (1.07.2022), namely the Stantec Report and map.

5. The direct comparison approach to valuation is only as reliable as the comparable sales used, and if there are no comparable sales, there’s no direct comparison approach. [34]

   34. Tcpt, 26 March 2025, p 128(1-28).

6. Mr Galanos agreed that he should only give opinion evidence based on his expertise, and that any opinion given outside his expertise he ‘would not ask the Commissioner to consider it’. [35]

   35. Tcpt, 26 March 2025, p 129(1-49).

7. Mr Galanos agreed that if he gave an opinion without any reasoning for that opinion, he would not ask the Court to consider it. [36]

   36. Tcpt, 26 March 2025, p 130(17-20).

8. He also agreed that he is not a qualified or experienced structural engineer, nor a hydrologist, nor does he have any qualifications in the fields of surveying or spatial science or geospatial science of geographical information system. [37]

   37. Tcpt, 26 March 2025, p 130(30-49).

9. Mr Galanos agreed that he was not qualified to make the following statements in his evidence in chief:

1. “Any hypothetical designed engineered solutions suggested in the Martens report are subject to structural failure.” [38]

2. Hydrology statements in respect of hazard vulnerability classifications as set out in the Martens’ report, and the effect of both the flooding affectation impairments and applicable flood hazard guidelines. [39]

3. That Mr Galanos relied upon the Applicant’s flooding evidence over that provided by Mr Dhiacou in his report, and he does not ask the Court to rely upon [12] of the Valuers’ Joint Report. [40]

4. Mr Galanos agreed that he took the Bald survey from 1993 as the best survey evidence, in preference to the LiDAR survey information relied upon by Mr Dhiacou as that was the most recent survey information Mr Dhiacou could access. [41]

5. In various parts of his evidence in chief, and the Valuation Joint Report, Mr Galanos relied upon the evidence of the Stantec map which was produced after the Base Date, as had the Hazard Vulnerability Classification for flooding. [42]

   38. Tcpt, 26 March 2025, pp 131-133, 134(1-23).

   39. Tcpt, 26 March 2025, pp 134(40-50), 135.

   40. Tcpt, 26 March 2025, p 137(1-25).

   41. Tcpt, 26 March 2025, pp 138(32-49), 139-140, 141(1-42).

   42. Tcpt, 26 March 2025, pp 142-145, 146(1-37).

32. In re-examination the Applicant took Mr Galanos to cl 2.2 of his Valuation Report (Ex F tab C2 EB 1826) to demonstrate that Mr Galanos took into account the ‘Department of Planning and Environment Flood Risk Management Guide FB03’ which apparently had the same or similar information in it as has the Stantec report. Although Mr Galanos states in cl 2.2 that he had taken this document into consideration, nowhere in the substance of his report does he refer to this document. Instead he refers to the Stantec report over and over again. On that basis I do not consider that by referencing a document in his references in cl 2.2 overcomes the mistake in his valuation evidence that he relied upon the Stantec report which was produced after the Base Date.

33. In final submissions the Respondent summarised why the Court should not rely upon Mr Galanos’s evidence:

1. Mr Galanos retracted passages in his own report and the Valuers’ Joint Report (Ex F EB 1852 [17]). [43]

   43. Tcpt, 26 March 2025, p 127(28-32).

2. Mr Galanos agrees that if he gave an opinion without any reasoning, he would not ask the court to consider it. [44]

   44. Tcpt, 26 March 2025, p 130(17-20).

3. He accepts that he acted outside his expertise as he is not a qualified structural engineer, and the court should not consider his opinion in this regard. [45]

   45. Tcpt, 26 March 2025, pp 131(19-30), 132-133, 134(1-23).

4. Mr Galanos confirms that he relied upon the Bald survey report for his Valuation and not the LiDAR evidence in the Flooding Report. [46] The Bald survey is dated 1997. Mr Galanos did not speak to Mr Bald and nor did he know why the Bald survey was drawn, [47] and he preferred the Bald survey to the LiDAR survey notwithstanding that the Bald survey was prepared a quarter of a century before the LiDAR survey. [48]

5. Mr Galanos took into account the Stantec map (EB 1706) when preparing his Valuation report. [49] Mr Galanos relied upon the Stantec map which is not in evidence as it was not in existence at the Base Date. [50]

6. In the agreed four comparable sales, Mr Galanos and Mr Allen agreed on all adjustments to the sales except for the impact of flooding. Mr Galanos considered that the difference between the flood affectation on the comparable sales on the one hand, and the flood affectation on the subject land on the other, is so great that the comparable sales should be adjusted down by about 60%-70% on account of those flooding differences. [51] Mr Galanos could not identify where he had considered the flooding impact on the four comparable sales as at the Base Date. [52] Instead he relied upon the map in the Stantec report which was produced after the Base Date. [53] “We’re heard a lot from Mr Boensch about his experience of flood affectation on the subject land, but understandably, not even Mr Boensch can give lay evidence about the flood affectation of the comparable sales because he hasn’t lived there for 30-odd years” [54] … “this is a gaping hole in the applicant’s case. Namely, the lack of analysis of the flood affectation of the comparable sales, something that Mr Galanos himself accepted would need to be done.” [55]

1. Reliance upon the ‘detention tank sales’ in Liverpool LGA without giving any comparable sales evidence – Mr Galanos agreed that if there is no direct comparable sales evidence, there is no direct comparison approach. [56] In further reference (Ex F EB 1843) to the Austral sale at 99 Ninth Avenue, Mr Galanos accepts that unless there are some comparable sales to support the figure of $775,000 it is really a misuse of the direct comparison valuation method. [57] It is not a question of weight to be given to the Austral sales, it is outside Mr Galanos’s expertise and the court should put a red line through that evidence. Mr Galanos uses the figure of $775,000 to say, well it would have sold for $775,000 but it did sell for $135,000, therefore the discount of 83%. There is no sales evidence to support the figure of $775,000, and Mr Galanos concedes that this problem infects all of the detention site sales. [58] Further, these sales are potentially not even market transactions. Mr Galanos concedes: “We believe them to be market transactions,” [59] and “Well, generally, they do sell off market.” [60]

2. In cross examination on the application of ss 6A(1) and (2) of the VL Act, Mr Galanos agreed that he should take into account the assumptions in s 6A(2), and if he failed to do so his report would be undermined. [61] He then agreed that he had not made any explicit comments on s 6A(2) in his Valuation report. [62]

   46. Tcpt, 26 March 2025, pp 137(27-50), 138(24-49).

   47. Tcpt, 26 March 2025, pp 138-139.

   48. Tcpt, 26 March 2025, pp 138(43-49), 139(1-24), 140, 141(1-43).

   49. Tcpt, 26 March 2025, pp 142(50), 143(1-48).

   50. Tcpt, 26 March 2025, pp 144(5-8, 19-22, 29, 47), 145(1-37).

   51. Tcpt, 26 March 2025, p 147(23-35).

   52. Tcpt, 26 March 2025, p 148(16-49).

   53. Tcpt, 26 March 2025, p 149(1-27).

   54. Tcpt, 7 April 2025, p 250(32-35).

   55. Tcpt, 7 April 2025, p 250(37-39).

   56. Tcpt, 26 March 2025, p 128(5-28).

   57. Tcpt, 26 March 2025, p 129(41-49).

   58. Tcpt, 26 March 2025, p 161(11-38).

   59. Tcpt, 26 March 2025, p 161(46).

   60. Tcpt, 26 March 2025, p 162(10).

   61. Tcpt, 26 March 2025, p 168(6-35).

   62. Tcpt, 26 March 2025, p 170(25-28).

Valuation – Respondent

34. Mr Murray Allen gave valuation evidence for the Respondent. Mr Murray’s evidence in chief, extracted from his Valuation Report (Ex F Tab C1), is set out below:

1. PLEP 2011 (PLEP 2011) applies to the Land:

1. The Land was zoned IN2 Light Industrial in the PLEP 2011. (Ex F EB 1778)

2. The objectives of the IN2 Light Industrial zone were (Ex F EB 1779):

• “To provide a wide range of light industrial warehouse and related land uses.

• To encourage employment opportunities and to support the viability of centres.

• To minimise any adverse effect of industry on other land uses.

• To enable other land uses to provide facilities or services to meet the day to day needs of workers in the area.

• To support and protect industrial land for industrial purposes.”

3. The Height of Buildings Map shows the maximum height of any building is not to exceed 12 metres. (Ex F EB 1780)

4. The Foreshore Building Line Map shows part of the Land is affected by it, and it appears to be approximately 1m wide and variable, extending west from Subiaco Creek. (Ex F EB 1780)

2. Mr Allen considers the highest and best use to be either:

1. Scenario 1 in the Flooding Report by Mr Dhiacou, adopting a developable area of 289m², and assessing the value of the Land under s 6A(1) of the VL Act. Mr Allen did not adopt Scenario 2 of the Flooding Report because of the “unknown but possible high perceived cost of constructing a suspended structure” (Ex F EB 1781 [65]).

2. The value of the Land based upon the existing use of the Land as a two level combined industrial/residential building with a total floor area of approximately 320m² under s 6A(2) of the VL Act (Ex F EB 1781 [66]).

3. Mr Allen relied upon the Flooding Report by Mr Dhiacou to determine the impact of flooding along Subiaco Creek upon the Land.

4. Based on Mr Allen’s calculations under ss 6A(1) and 6A(2) he considers the highest and best use of the Land to be in accordance with Scenario 1 of the Flooding Report under s 6A(1) of the VL Act (Ex F EB 1781 [67]).

5. Mr Allen set out his valuation rationale, market approach and detailed analysis of the comparable sales on EB 1782 – EB 1787 followed by his Sales adjustments/summary on EB 1788.

6. Allen’s summary analysis of the comparable sales is found on Ex F EB 1788, Table 3 sale adjustment/summary as follows:

Sale No	Sale property	Sale date	Adjusted land value ($)	Area (m2)	$/m2	Adjustments
						Size	Shape	Location	Flooding	Total Adjustment	Adjusted $/m2
1	10 Bridge St, Rydalmere	01/04/2022	1,600,000	445.8	3,589	-10%	-5%	+5%	-25%	-35%	2,333
2	51 Bridge St, Rydalmere	11/07/2022	1,300,000	569	2,285	-5%	-5%	+5%	-5%	-10%	2,057
3	2 Brodie St, Rydalmere	10/11/2021	1,600,000	676	2,365	+5%	0%	+5%	-15%	-5%	2,247
4	18 Muriel Ave, Rydalmere	29/09/2021	1,266,000	423.7	2,988	-15%	-5%	+5%	+5%	-10%	2,689

7. Table 3 above shows when Mr Allen adjusted for comparison with the Land, the comparable sales revealed analysed rate per m² of site area of between $1,057 and $2,689. Mr Allen then conducted further analysis of the direct comparison approach (Ex F EB 1788-1789) and concluded that:

“89.   Taking into account the sales evidence, and taking into account, the size, shape, location and flooding impacts of the subject site, I consider Sale 2 at 51 Bridge Street, Rydalmere, is the closest to the Subject Land in terms of flood affection and the other features identified….I have analysis Sale 2 at a rate of $2,057 per square metre of site area. Although the other three sales suggest higher rates, I have selected a rate closer toward the lower end of the range given the reliance I have placed on Sale 2 when valuing the Subject Land. I have therefore adopted a rate of $2,100 per square metre of site area for the Subject Land.

90. My assessment of Land Value on the basis of value under section 6A(1) of the Valuation of Land Act is as follows: 600.7 square metres @ $2,100 per square metre - $1,261,470 Rounded to $1,260,000.”

8. Mr Allen determined the value pursuant to s 6A(1) of the VL Act at $1,200,000 (EB 1789), and pursuant to s 6A(2) of the VL Act at $1,200,000. (Ex F EB 1789-91)

35. The valuers agreed (Ex F Tab C3 pp EB 1852 and 1853 [20]-[24]) on the four comparable sales, and on the adjustments to be made, i.e. size, shape, location, but disagreed on the discount to be made for flooding. As set out above, Mr Galanos discounted the comparable sales by 60-70% based upon his analysis of the detention sales in Austral.

36. At the hearing Mr Allen relied principally upon Sale 2, being 51 Bridge Street, Rydalmere as follows:

“Sale 2 …… is a slightly smaller site of 569 square metres, compared with 600.7 square meters for the Subject Land, and has similar flood designation to the Subject Land. This property is predominantly designated as having a High Flooding Risk, backs onto the same creed at the Subject Land (Subiaco Creek), is similarly affected by the Foreshore Building Line (see 3.32 Foreshore Building Line) and is situated only 370 metres south of the Subject Land. This sale shows a rate of $2,057 per square metre of site area when adjusted for application to the Subject Land.” (Ex F EB 1789 [84])

It is noted that in Table 3 Mr Allen gives an adjustment for flooding to Sale 2 of -5%.

37. In cross examination Mr Allen responded as follows:

1. Confirmed that he relied on the Martens’ expert flood report (Mr Dhiacou’s report). [63]

   63. Tcpt, 7 April 2025, p 195(35-38).

2. That he relied on Option 1 in Mr Dhiacou’s Report as a possible development for the Land. [64]

   64. Tcpt, 7 April 2025, p 195(40-43).

3. Confirmed his understanding that Mr Dhiacou did not need to comply with the Probable Maximum Flood (PMF), as the PDCP 2011 requires the developer to comply with the 1:100 year flood event, not the PMF. [65]

   65. Tcpt, 7 April 2025, p 196(7-23).

4. Responding to questions on the rising cost of building works over time from 1994 to date, particularly in relation to 289m², Mr Allen said: “Well, when we do valuations for the Valuation of Land Act, we don’t go into the – unless there’s a specific building that’s DA approved, we don’t go into what the costs are going to be on – on the particular building”. [66]

   66. Tcpt, 7 April 2025, p 201(42-44).

5. Responding to questions on the extent of the Foreshore Building Line on the Land, Mr Allen said: “ - the Martens report – if you look at 2(b) it says you can put a building in the foreshore area if the levels and depths or other acceptable features of the site make it appropriate to do so. Mr Dhiacou has said he can get 289 square metres above the flood line. So in that, I’ve taken that to mean, well, the levels and depths are…do make it appropriate to building a property on there”, [67] and “[w]ell, the foreshore line only comes into effect if you can’t build on it due to the levels and depths being inadequate, but Mr Dhiacou has said that with cut and fill, he can make the levels above the flood line”. [68]

   67. Tcpt, 7 April 2025, p 206(12-17).

   68. Tcpt, 7 April 2025, p 207(35-37).

6. Responding to questions about the file on Council’s website: ‘ Know Your Flood Risk’, Mr Allen said: “Well, I think a willing buyer, the first...thing they would do is look up the website and look up the Know Your Flood Risk. And when they said, ‘Hey, this is in a high-risk flood area. We need to do some more investigations here. I think I’ll get a flood report done’. And...the flood report will dictate what you can and can’t do…with a site”. [69] And further in response to the Council’s disclaimer on its website, Mr Allen said: “But as I said, I relied upon the Martens flood report.” [70]

   69. Tcpt, 7 April 2025, p 214(25-29).

   70. Tcpt, 7 April 2025, p 225(18).

7. Responding to questions regarding the Red Map in his first report (the report Mr Allen prepared in response to the Applicant’s Objection prior to these proceedings), Mr Allen said, “No, for the original objection, I used the Red Map and the Blue Map, and then for the Court report I read the Martens report which confirmed that those findings were fine in that map. So despite the disclaimer by Council the Martens map confirmed those conclusions were right.” [71]

   71. Tcpt, 7 April 2025, p 227(40-43).

8. Comparing the Land to the sale at 51 Bridge Street Rydalmere, Mr Allen agreed with Mr Dhiacou’s analysis that 51 Bridge Street (Ex F EB 1736) is the most comparable sale to the subject Land, that the flow rates were slightly greater but not so much as to cause scouring, the depth of flooding is a little bit deeper, and the subject Land is considered slightly more flood liable than 51 Bridge Street. [72] “And the sale of 51 Bridge is the closest in flood liable nature to your property. That was confirmed by the flood report.” [73]

   72. Tcpt, 7 April 2025, pp 215(45-50), 216(1).

   73. Tcpt, 7 April 2025, p 223(35-36).

9. In response to the Applicant’s questions on town planning, and its application to development on the Land, Mr Allen said he would look at town planning restrictions like floor space ratios, and floor space areas, and permissibility under the zoning. Mr Allen agreed with the Applicant if a town planner advised that the building options in the Martens report could not be done under the town planning rules, the value of the Land would be lower.

Further Findings

38. 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).

39. Mr Allen opined that if a town planner advised that the building option No 1 (upon which he relied) in the Dhiacou Report could not be done under the planning rules, the value of the Land would be lower. The difficulty for the Applicant in applying such a reduction is that he did not produce a town planning report and nor did the Valuer-General – therefore argument is hypothetical.

40. I accept the evidence of Mr Dhiacou, although noting the valuers only considered Option 1 for a new build.

41. The valuers agreed on 4 comparable sales, (Ex F tab C3 EB 1852 and 1853 [20]-[24]), and the adjustments to be made for size, shape, location, but disagreed on the adjustment to be made for flooding of the Land. Despite the volume of evidence before the court, the central question in this case is relatively simple. Does the Land Value at the Base Date for industrial land, zoned IN2 Light Industrial under PLEP 2012, with a maximum permissible height of 12m, with good vehicular and pedestrian exposure to Victoria Road at Rydalmere adequately account for the fact that the Land is susceptible to flooding from time to time by the adjacent Subiaco Creek?

42. It is important to note that the Applicant built a retaining wall adjacent to his boundary with Subiaco Creek many years ago. The retaining wall is still in existence and allows his land adjacent to Subiaco Creek to be used for car parking for his automative business. The Applicant’s residence is located above the automative business. The aerial photograph in [28] above shows the impact of the retaining wall.

43. I prefer the valuation evidence of Mr Allen over that given by Mr Galanos. The reasons for discounting Mr Galanos’s are set out in [3031]-[32] above together with the submissions by the Valuer-General in par [33] above. In summary Mr Galanos relied upon material produced after the Base Date, opined on areas outside his expertise, relied on ‘comparable sales’ which were not comparable (the retention tank sales in Liverpool Local Government Area), and failed to consider s 6A(2) of the VL Act.

44. I accept the evidence of Mr Allen is set out in [34]-[37] above.

45. Of the 4 comparable sales agreed on by the valuers, as physically identified on the Red Map, Mr Allen considers 10 Bridge Street as the most comparable sale, being 100m downstream (south) on Subiaco Creek from the Land ([37(8)] above). From a flooding perspective Mr Dhiacou considered 10 Bridge Street as the most comparable sale. Taking into account the flooding impact evidence given by Mr Dhiacou, Mr Allen adopted a 5% discount to determine the Land Value of $1,260,000. Alternatively, Mr Galanos adopted a discount factor of 70% relying upon his analysis of the Liverpool R2 subdivision retention basin rate. I do not accept Mr Galanos’s discount rate of 70% as he agreed the sale he relied upon was most likely not a market sale. In any event it was not comparable even if it was found to be a market sale because its zoning is R2 Medium Density Residential, and once the Liverpool Council built the relevant stormwater drainage (in 5 to 10 years according to Mr Dhiacou) then the allotment would be sold for a residential development at the full market price.

46. In answer to the issues raised in par [20] above:

1. The evidence to be relied upon to determine the Land Value at the Base Date must be material prepared prior to the Base Date. Any material prepared after the Base Date must be excluded.

2. Mr Dhiacou’s evidence in relation to flooding on the Land and on the comparable sales is accepted as he an expert hydrologist, and his evidence was prepared in accordance with the Expert Witness Code of Conduct.

3. The Applicant (appellant) has not discharged the onus of proving his case in accordance with s 40(2) of the VL Act.

47. In accordance with s 39 of the LEC Act, and s 40(1)(a) of the VL Act, I shall dismiss the appeal, and uphold the Valuer-General’s valuation of the Land Value as at the Base Date in accordance with s 6A(1) and (2) of the VL Act.

48. The Court orders:

1. The appeal is dismissed.

2. The Land Value for Lots 37 and 38 in Deposited Plan 14244 for the Base Date of 1 July 2022 is $1,260,000 in accordance with ss 6A(1) and (2) of the Valuation of Land Act 1916.

3. The exhibits are retained.

M Peatman

Acting Commissioner of the Court

**********

Endnotes

Decision last updated: 27 June 2025