FERGUSON and VALUER GENERAL - [2025] WASAT 41

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: VALUATION OF LAND ACT 1978 (WA)
CITATION:   FERGUSON and VALUER GENERAL [2025] WASAT 41
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   2 APRIL 2025
DELIVERED          :   12 MAY 2025
FILE NO/S:   DR 144 of 2024
BETWEEN:   MYLES KENNETH FERGUSON
Applicant
AND
VALUER GENERAL
Respondent

Catchwords:

Valuation of Land Act 1978 (WA) - Valuation of land - Date of valuation (DOV) - Residential property in suburban Perth - Methodology of valuation - Valuer's 'art' - Gross rental value (GRV) - Whether determination of GRV reasonably possible - Determination of GRV - Relevant principles - Use of comparable rental evidence - Expert assessment by valuer - Non-expert assessment by registered proprietor - Alleged anomalous increase in GRV from previous year - Alleged subjective assessment - Alleged failure to consider comparable nearby property - Comparability of rental evidence - Tribunal not 'third valuer' - Review jurisdiction of Tribunal - Correct and preferable decision

Legislation:

State Administrative Tribunal Act 2004 (WA), s 17(1), s 27(1), s 29(3), Pt IV
Valuation of Land Act 1978 (WA), s 4, s 6(2)(a), s 32, s 32(2)

Result:

Application for review dismissed
Decision under review affirmed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	Mr D Dumas (Representative of Valuer General)

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Citic Pacific Mining Management Pty Ltd and Valuer General [2016] WASAT 23
Duffy v The Minister for Planning [2003] WASCA 294
Hafez and Valuer General [2012] WASAT 103
Julians Lodge PL v Commissioner of State Revenue [2001] VCAT 1945
McKay v Commission of Main Roads [No 7] [2011] WASC 223

REASONS FOR DECISION OF THE TRIBUNAL:

In 1953 Mr Ferguson's father purchased the block of land on which the family home was built. Later, in about 2000, the block became two strata lots (71 and 71a Gildercliffe Street, Scarborough) under the Strata Titles Act 1985 (WA).
Mr Ferguson inherited Lot 1 on Strata Plan 37416, known as 71 Gildercliffe Street, Scarborough, which is approximately 14 kilometres from the Perth Central Business District and approximately two kilometres from the ocean (property).
In about 2016, Mr Ferguson set about extending and renovating the property. The works, according to Mr Ferguson, were done to suit his and his wife's requirements without any consideration of what other people may look for in a house. Mr Ferguson describes the property as a two storey house with a loft level in the roof space which has an office and studio, two bedrooms, one walk in robe, three bathrooms, two living areas, dining area, laundry, kitchen, deck with alfresco and spa, a small balcony, a lift and a double garage.[1] According to Mr Ferguson, the property has an area of 387 square metres (or half a block).
[1] Exhibit 1 (HB) at page 151.
Mr Ferguson challenges the gross rental value (GRV) of $34,320[2] for his property at 1 August 2021 (the date of valuation or DOV)…

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: [2025] WASAT 41
Decision Date: 12 MAY 2025

CaseChat Overview and Summary

The matter before the tribunal was an objection by Mr Ferguson to the valuation of his residential property in suburban Perth under the Valuation of Land Act 1978 (WA). The key issue in dispute was the gross rental value (GRV) of the property at the date of valuation, with Mr Ferguson contending that it was $26,520, while the Valuer General argued for a GRV of $34,320. The tribunal was required to determine the correct GRV of the property at the date of valuation, considering the methodology of valuation, the use of comparable rental evidence, and whether the Valuer General's assessment was reasonable.

The tribunal noted that the Valuer General's disallowance of Mr Ferguson's objection was a reviewable decision under the State Administrative Tribunal Act 2004 (WA). The tribunal's role was to produce the correct and preferable decision, considering the functions and discretions of the original decision-maker, the Valuer General. The tribunal found that it was not acting as a 'third valuer' but rather reviewing the decision of the Valuer General. It examined the principles of valuation, including the use of comparable rental evidence and expert assessment by the valuer. The tribunal also considered whether the Valuer General had subjectively assessed the GRV or failed to consider a comparable nearby property. Ultimately, the tribunal found that the Valuer General's determination of the GRV was reasonable and aligned with the relevant principles of valuation.

In its decision, the tribunal upheld the Valuer General's assessment of the GRV of $34,320. The tribunal found that the Valuer General had appropriately considered the comparable rental evidence and that the assessment was not subjective or anomalous. The tribunal dismissed Mr Ferguson's objection and affirmed the Valuer General's decision. The tribunal made no orders to vary the decision or to send it back to the Valuer General for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Valuer General's disallowance of Mr Ferguson's objection (see above at [4]) is a reviewable decision for the purposes of s 17(1) of the State Administrative Tribunal Act 2004 (WA) (SATAct) (decision). The role of the Valuer General, as set out in s 32(2) of the VL Act, is to refer Mr Ferguson's request of 20 September 2024[4] to the Tribunal, whereupon the referral is treated as an application by Mr Ferguson.[4] HB at page 8. It is not in dispute that Mr Ferguson is a 'person liable to pay any rate or tax assessed in respect of land who is dissatisfied with the valuation of such land' within the meaning of s 32 of the VL Act. Further, it is not in dispute that Mr Ferguson has properly objected to the valuation within the meaning in Pt IV of the VL Act and that the review of the decision has been properly brought under Pt IV of the VL Act. At the final hearing on 2 April 2025, Mr Ferguson urged the Tribunal to utilise the GRV of 119a Grand Promenade, Doubleview, being the comparable property to his property, but with adjustment to allow for the four bedrooms that property has (as compared to two bedrooms that his property has) to give a GRV of $26,520 for his property at the DOV.[5][5] Mr Ferguson's position has changed over time. On 1 December 2024, in a written statement filed with the Tribunal (HB at page 130) he claimed the GRV of his property at the date of valuation is $17,250. In his written statement filed with the Tribunal on 18 February 2025, Mr Ferguson asserted that the GRV for his property was $20,966. Then, on 6 March 2025, Mr Ferguson in a written statement filed with the Tribunal he set out three alternative options for the GRV: first $22,308, second $26,520 and third using the 'assessed value' of the land. Ultimately, at the final hearing, Mr Ferguson only pursued the second option, that is a GRV at the DOV for his property of $26,520. On the other hand, the Valuer General submits that a GRV of $34,320 for the property, at the DOV, is correct. The contest between the parties is whether the GRV of Mr Ferguson's property is $26,520 or $34,320. Therefore, the sole issue to be determined in this proceeding is, what is the GRV of the property at the DOV? The hearing before the Tribunal is a hearing de novo which means that the Tribunal is not confined to the materials that were before the Valuer General at the time when the decision was made. In accordance with s 27(1) of the SAT Act, the Tribunal must produce the correct and preferable decision in accordance with the functions and discretions corresponding to those exercisable by the original decision‑maker, the Valuer General. Therefore, the Tribunal, as provided for in s 29(3) of the SAT Act, may: •affirm the decision; or •vary the decision; or •set aside the decision and in doing so substitute it with its own decision; or•send the decision back to the Valuer General to reconsider it in accordance with any directions that may be appropriate and, in any case, make any other order the Tribunal considers appropriate.

Ratio Decidendi

Legal Principle Established

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