Boulevarde Real Estate Pty Ltd v Valuer General of NSW

[2023] NSWLEC 1093

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Boulevarde Real Estate Pty Ltd v Valuer General of NSW [2023] NSWLEC 1093

Hearing dates:

Conciliation Conferences on 30 November 2022, 06 February 2023 and 16 February 2023

Date of orders:

02 March 2023

Decision date:

02 March 2023

Jurisdiction:

Class 3

Before:

Davidson AC

Decision:

The Court orders that:

In respect of Proceedings 2022/00253313:

(1) The appeal is dismissed.

(2) The value of the land for the valuation year 1 July 2019 is confirmed, pursuant to s 40(1)(a) of the Valuation of Land Act 1916 (NSW) (Valuation Act), as $3,160,000.00 in accordance with s 6A of the Valuation Act.

In respect of Proceedings 2022/00253312:

(1) The appeal is dismissed.

(2) The value of the land for the valuation year 1 July 2020 is confirmed, pursuant to s 40(1)(a) of the Valuation of Land Act1916 (NSW) (Valuation Act), as $3,340,000.00 in accordance with s 6A of the Valuation Act.

In respect of Proceedings 2022/00253314:

(1) The appeal is upheld.

(2) The value of the land for the valuation year 1 July 2021 is determined, pursuant to s 40(1)(b) of the Valuation of Land Act1916 (NSW) (Valuation Act), as $3,400,000.00 in accordance with s 6A of the Valuation Act.

Catchwords:

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

Legislation Cited:

Canada Bay Local Environmental Plan 2013

Land and Environment Court Act 1979, ss 19, 34

Valuation of Land Act 1916, ss 6A, 37, 38, 40

Category:

Principal judgment

Parties:

Boulevarde Real Estate Pty Ltd (Applicant)
Valuer General (Respondent)

Representation:

Counsel:
N Hammond (Applicant)
L Nurpuri (Respondent)

Solicitors:
Watson Webb (Applicant)
Crown Solicitor of NSW (Respondent)

File Number(s):

2022/253312
2022/253313
2022/253314

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant appeals the Valuer General’s Determinations dated 27 June 2022 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 1 DP 955724 and Lot 2 DP 616495 and known as 2 Bennett Street Mortlake NSW 2137 (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 27 June 2022 in respect of the objection by the Applicant to the valuations of the land as of 1 July 2019, 1 July 2020, and 1 July 2021.

2. The Land is located on the north-western corner of Bennett Street and Edwin Street Mortlake, NSW, 2137, within the Local Government Area of Canada Bay.

Planning Context

3. The planning context of the land is as follows:

1. The Land is located in the local government area of Canada Bay.

2. The Land was zoned, at the relevant dates, as R1 General Residential under the Canada Bay Local Environmental Plan 2013 (LEP).

3. The maximum FSR was 0.75:1, the maximum height limit was 12 metres (m) and the minimum lot size was 450 m².

4. The Land is a corner lot having a frontage to Bennett Street of 11.58 m and a frontage to Edwin Street of approximately 108.04 m.

5. The Land is rectangular in shape having a fall from the street towards Majors Bay. No access is available to the water as the Land fronts dense mangroves. The Land comprises two contiguous lots, being Lot 1 DP 955724 (land area 1,005.39 m²) and Lot 2 DP 616495 (land area 203 m²), contributing to a total land area of 1,208.39 m².

6. Lot 2 is reclaimed land adjoining Majors Bay.

7. The potential development of the Land is constrained by its narrow width of its 11.58 m frontage to Bennett Street and the statutory planning requirements for setbacks from side and rear boundaries, landscaping percentage, and mapping under the LEP as being within the Foreshore Building Line, as well as being classified as Terrestrial Biodiversity and Environmentally Sensitive Land. Those factors all limit the Land’s development potential.

8. The parties’ town planners agreed that, assuming the land is vacant, two dwellings were achievable on the Land, one on each lot, assuming a boundary adjustment to enlarge the smaller lot.

Valuation objections and appeal

4. The valuation objections and appeal can be summarised as follows:

1. On 1 July 2019 the Land was valued at $3,160,000.00.

2. On 1 July 2020 the Land was valued at $3,340,000.00.

3. On 1 July 2021 the Land was valued at $4,950,000.00.

4. On 22 March 2022 the Applicant by its solicitor lodged objections to the Valuer General in respect of the Land valuations as at 1 July 2019, 1 July 2020, and 1 July 2021.

5. On 27 June 2022 the Valuer General changed its valuation of the Land as at 1 July 2021 to $4,075,000.00, but otherwise did not change the valuations as at 1 July 2019 and 1 July 2020.

6. On 25 August 2022 the Applicant filed three (3) appeals in Class 3 of the Court’s jurisdiction, under section 37(1) of the Valuation Act.

7. The matters were provided with case numbers 2022/00253313 (1 July 2019), 2022/00253312 (1 July 2020), and 2022/00253314 (1 July 2021).

5. The Court arranged a conciliation conference under s 34(1) of LEC Act between the parties, which was held on 30 November 2022, 6 February 2023 and 16 February 2023. I presided over the conciliation conference.

1. On 30 November 2022, the Applicant and Respondent together with their counsel and advisors attended a conciliation conference as per s 34 of the LEC Act (conciliation conference).

2. On 30 November 2022, the conciliation conference was adjourned to permit the parties’ town planning experts to confer.

3. On 16 February 2023, the conciliation conference was resumed, and an agreement was reached by the parties.

6. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.

7. The Parties agreed to resolve the three matters on the basis that the value of the Land as at 1 July 2021 is $3,400,000.00, and the valuations as at 1 July 2019 and 1 July 2020 remain the same.

8. Accordingly, the parties request the Court make orders in accordance with s 40(1) of the Valuation Act, as follows:

Proceedings 2022/00253313

9. The value of the Land for the valuation year 1 July 2019 is confirmed, pursuant to s 40(1)(a) of the Valuation Act, as $3,160,000.00 in accordance with s 6A of the Valuation Act.

Proceedings 2022/00253312

10. The value of the Land for the valuation year 1 July 2020 is confirmed, pursuant to s 40(1)(a) of the Valuation Act, as $3,340,000.00 in accordance with s 6A of the Valuation Act.

Proceedings 2022/00253314

11. The value of the Land for the valuation year 1 July 2021 is determined, pursuant to s 40(1)(b) of the Valuation Act, as $3,400,000.00 in accordance with s 6A of the Valuation Act.

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 s 40(1)(a) of the Valuation Act to confirm the land value of the land as of 1 July 2019 and 1 July 2020 and exercising the function under s 40(1)(b) to make a decision in place of the decision to which the appeal relates in relation to the land value of the land as of 1 July 2021.

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 ss 6A and 40(1) of the Valuation Act. They further identified:

1. The Applicant is the registered proprietor of the Land and entitled to bring the proceedings pursuant to s 37(1) of the Valuation Act.

2. The Valuer General issued notices of determination in respect of the Applicant’s three objections on 27 June 2022.

3. The Applicant filed the three Class 3 appeals under s 37(1) of the Valuation Act on 25 August 2022, within the 60 day limitation period pursuant to s 38(1) of the Valuation Act.

4. The parties’ valuers and town planners attended the s 34(1) Conciliation Conference and negotiated on a without prejudice basis and in good faith.

14. 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) 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.

Orders:

In respect of Proceedings 2022/00253313:

16. The Court orders that:

1. The appeal is dismissed.

2. The value of the land for the valuation year 1 July 2019 is confirmed, pursuant to s 40(1)(a) of the Valuation of Land Act 1916 (NSW) (Valuation Act), as $3,160,000.00 in accordance with s 6A of the Valuation Act.

In respect of Proceedings 2022/00253312:

17. The Court orders that:

1. The appeal is dismissed.

2. The value of the land for the valuation year 1 July 2020 is confirmed, pursuant to s 40(1)(a) of the Valuation of Land Act 1916 (NSW) (Valuation Act), as $3,340,000.00 in accordance with s 6A of the Valuation Act.

In respect of Proceedings 2022/00253314:

18. The Court orders that:

1. The appeal is upheld

2. The value of the land for the valuation year 1 July 2021 is determined, pursuant to s 40(1)(b) of the Valuation of Land Act 1916 (NSW) (Valuation Act), as $3,400,000.00 in accordance with s 6A of the Valuation Act.

……………………….

M Davidson

Acting Commissioner of the Court

**********

Amendments

06 March 2023 - Counsel updated

Decision last updated: 06 March 2023