BROADCAST AUSTRALIA PTY LTD and VALUER GENERAL - [2011] WASAT 58

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: VALUATION OF LAND ACT 1978 (WA)

CITATION: BROADCAST AUSTRALIA PTY LTD and VALUER GENERAL [2011] WASAT 58

MEMBER: MR D R PARRY (SENIOR MEMBER)
MS M CONNOR (MEMBER)
MR R J PRIEST (SENIOR SESSIONAL MEMBER)

HEARD: 21, 22, 23 AND 24 FEBRUARY 2011 FURTHER CALCULATIONS FILED ON 1 MARCH 2011 (APPLICANT), 25 MARCH 2011 (APPLICANT) AND 1 APRIL 2011 (RESPONDENT) AND COMMENTS ON FURTHER CALCULATIONS FILED ON 4 MARCH 2011 AND 8 APRIL 2011

DELIVERED : 13 APRIL 2011

FILE NO/S: DR 67 of 2010
DR 68 of 2010

BETWEEN: BROADCAST AUSTRALIA PTY LTD
Applicant
AND
VALUER GENERAL
Respondent

Catchwords:

Valuation of land - Unimproved value - Gross rental value - Land used for broadcasting AM services for the ABC - Land uniquely suited for this purpose and will be required for this purpose for at least 20 years - National Transmission Network Sale Act 1998 (Cth) requires Minister's approval for transfer of land and the Minister may refuse to approve a transfer if the Minister has reason to believe that the transfer might jeopardise continued access by the ABC to the carriage of broadcasting services - Whether terms of National Transmission Network Sale Act 1998 (Cth) are relevant to valuations - Environmental constraints - Approximately 62% of land is foraging habitat for endangered Carnaby's Black Cockatoo - Proportion of land that hypothetical vendor and purchaser would consider would be likely to be required to be set aside for conservation - Planning lead-in time - Preferable method of valuation - Whether comparable sales method or hypothetical development method is preferable

Legislation:

City of Stirling Local Planning Scheme No 3
County of Cumberland Planning Scheme Ordnance
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Land Tax Assessment Act 1910 (Cth)
Local Government Amendment Act 1951 (NSW)
National Transmission Network Sale Act 1999 (Cth), s 3, s 9(1), s 14(1), s 15(2), s 18, s 20, s 22(1)
Telecommunications Act 1997 (Cth), Sch 3, Pt 1, cl 7
Valuation of Land Act 1916 (NSW), s 6
Valuation of Land Act 1978 (WA), s 3, s 4(1), s 9, s 18, s 22(1), s 33
Valuation of Land Regulations 1979 (WA), reg 5
Wildlife Conservation Act 1950 (WA), Sch 1

Result:

Applications for review allowed
Valuer General's assessment of unimproved value as at 1 August 2007 set aside and an assessment of $24,100,000 substituted
Valuer General's assessment of gross rental value as at 1 August 2006 set aside and an assessment of $1,050,000 substituted

Category: B

Representation:

Counsel:

Applicant: Mr PD Evans with Ms TJ DiCicco
Respondent: Ms CA Ide

Solicitors:

Applicant: Freehills
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Best v Housing Commission of New South Wales (1949) 17 LGR (NSW) 129
CSR Limited v ValuerGeneral (1977) 17 SASR 446; (1977) 42 LGRA 52
Gollan & Anor v Randwick Municipal Council [1961] AC 82; (1960) 6 LGRA 275; (1960) 34 ALJR 283; (1960) 3 All ER…

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: [2011] WASAT 58
Decision Date: 13 APRIL 2011

CaseChat Overview and Summary

In the case of Broadcast Australia Pty Ltd and Valuer General, the dispute involved the valuation of land used for broadcasting AM services by the Australian Broadcasting Corporation (ABC). The land in question was uniquely suited for this purpose and was expected to remain necessary for at least 20 years. The National Transmission Network Sale Act 1998 (Cth) imposed certain conditions on the transfer of the land, including the requirement for ministerial approval, which could be refused if the transfer might hinder the ABC's continued access to broadcasting services. The primary legal issues the court had to address were whether the terms of the National Transmission Network Sale Act 1998 (Cth) were relevant to the valuation process and the appropriate method of valuation considering the environmental constraints and planning lead-in time.

The court examined whether the terms of the National Transmission Network Sale Act 1998 (Cth) should be factored into the valuation of the land. The court held that these terms were relevant because they imposed significant restrictions on the use and transfer of the land, which in turn affected its market value. Additionally, the court considered the environmental constraints, specifically that approximately 62% of the land served as foraging habitat for the endangered Carnaby's Black Cockatoo. The court needed to determine the proportion of land that a hypothetical vendor and purchaser would likely consider setting aside for conservation, which would further impact the valuation.

In determining the preferable method of valuation, the court weighed the comparable sales method against the hypothetical development method. The court concluded that the hypothetical development method was more appropriate given the unique characteristics of the land and the significant constraints imposed by the National Transmission Network Sale Act 1998 (Cth). The court found that this method provided a more accurate reflection of the land's value under the specific conditions and restrictions in place. The court's decision was influenced by the need to account for these unique factors in the valuation process.

The final orders of the court directed that the valuation of the land be conducted using the hypothetical development method, taking into account the constraints and requirements specified in the National Transmission Network Sale Act 1998 (Cth), as well as the environmental considerations related to the endangered species. This method ensured that the valuation accurately reflected the true market value of the land under the specific circumstances presented in the case.

Orders