Foreman v Valuer General of NSW

[2024] NSWLEC 1349

Land and Environment Court

New South Wales

Medium Neutral Citation:

Foreman v Valuer General of NSW [2024] NSWLEC 1349

Hearing dates:

Conciliation Conference on 22 May 2024

Date of orders:

25 June 2024

Decision date:

25 June 2024

Jurisdiction:

Class 3

Before:

Davidson AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The land value of 33 Nimala Avenue, Koolewong NSW 2256 (identified as Lot 99 in Deposited Plan 14946) as at the valuing year 1 July 2022 is amended to $430,000 in accordance with s 6A of the Valuation Act 1916.

Catchwords:

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

Legislation Cited:

Land and Environment Court Act 1979, ss 19, 34

Valuation of Land Act 1916, Pt 4, ss 6A, 29, 35, 35B, 35C, 37, 38, 39, 40

Central Coast Local Environment Plan 2022

Category:

Principal judgment

Parties:

David Foreman (Applicant)
Valuer General of New South Wales (Respondent)

Representation:

Counsel:
D Foreman (Self represented)
R White (Respondent)

Solicitors:
Crown Solicitor of NSW (Respondent)

File Number(s):

2024/31749

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The applicant appeals the Valuer General’s Determination dated 15 November 2023 pursuant to s 37(1) of the Valuation of Land Act 1916 (Valuation Act) in respect of the valuation of the land value of the property legally described as Lot 99 in Deposited Plan 14946 and known as 33 Nimala Avenue Koolewong NSW 2256 (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 determination of the Valuer General made on 15 November 2023 in respect of the objection by the Applicant to the valuation of the land as of 1 July 2022.

Planning Background and Site Features

2. Relevant features of the land are as follows:

1. The land is located in Koolewong, a suburb in the Local Government Area of Central Coast.

2. The land was zoned, as at the relevant date, R2 – Low Density Residential under the Central Coast Local Environment Plan 2022 (LEP).

3. The site area of the land is 670.3sqm.

4. The land is an irregular shaped north-east facing allotment set above the road alignment and rising steeply to the rear boundary. It has a front boundary of 20 metres and a rear boundary of 11 metres.

5. The land is 100% bushfire prone, being a mix of vegetation category 1 (rear portion, about 230sqm, about 34%) and vegetation buffer for the remainder. The land is also 100% affected by acid sulfate soils.

6. The land is an improved property, accessed from a concrete service road off a tar sealed road with earthen verge. It is located in an established coastal residential area with surrounding development comprising primarily detached dwellings of varying age, style and construction.

7. Standard services are available to the land.

Valuation objections and appeal

3. The valuation objection and history of the appeal includes:

1. Land was valued at $499,000 for the 1 July 2022 valuing year.

2. On 22 March 2023, pursuant to s 29 of the Valuation Act, the Chief Commissioner of State Revenue issued an assessment of land tax, with embedded Notice of Valuation, to the Applicant

3. On 8 May 2023, the Applicant lodged an objection to the Valuer General in respect of the land valuation as at 1 July 2022.

4. On 22 December 2023 the Valuer General disallowed the applicants’ objection.

5. On 12 January 2024 the Applicant filed an appeal in Class 3 of the Court’s jurisdiction, under s 37(1) of the Valuation Act.

6. The matter was provided with case number 2024/31749

Legislation - Valuation of Land Act 1916

4. Section 6A of the Valuation Acts provides as follows:

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.

(3)  Notwithstanding anything in subsection (1), in determining the land value of any land, being land in relation to which, at the date to which the valuation relates, there was a water right—

(a)  the land value shall include the value of the right, and

(b)  it shall be assumed that the right shall continue to apply in relation to the land.

(4)  For the purpose of determining the value of a water right, the value of any water secured by, or referable to, that right is to be ignored.

5. Further, Pt 4 of the Valuation Act states:

Part 4 Appeals to Land and Environment Court

Division 1 Appeals

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).

(2)  An appeal may not be made on the ground that the objection is taken to have been disallowed, as referred to in section 35C (4), unless written notice of the objector’s intention to appeal on that ground has been given to the Valuer-General at least 14 days before the appeal is made.

(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.

39   Grounds of appeal

The appellant’s and respondent’s cases on an appeal are not limited to the grounds of the objection.

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.

…

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 22 May 2024. I presided over the conciliation conference.

7. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved determining the value of the land pursuant to s 6A of the Valuation Act, and to make a decision in place of the decision to which the appeal relates pursuant to s 40(1) of the Valuation Act.

8. 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) of the Valuation Act to make a decision in place of the decision to which the appeal relates in relation to land value of the land as of 1 July 2022.

9. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the proceedings fall within Class 3 of the Court’s jurisdiction pursuant to s 19(b) of the LEC Act and explained how the jurisdictional prerequisites have been met:

1. On 22 March 2023, pursuant to s 29 of the Valuation Act, the Chief Commissioner of State Revenue issued a Notice of Valuation to the Applicant for 33 Nimala Avenue, Koolewong NSW 2256 (identified as Lot 99 in Deposited Plan 14946) (the Land) in relation to the 2022 valuation year. The valuation notice determined an Issued Land Value of $499,000 for the Land for the 2022 valuation year.

2. On 8 May 2023, the Applicant lodged an objection to the Issued Land Value pursuant to s 29(3A) of the Valuation Act within the prescribed time for lodging an objection pursuant to s 35(1)(b) of the Valuation Act.

3. On 15 November 2023, the Valuer General disallowed the Applicant's objection pursuant to s 35B and issued a Notice of Determination to the Applicant as required by s 35C of the Valuation Act.

4. On 12 January 2024, the Applicant lodged an Appeal pursuant to s 37 of the Valuation Act in this Court, within the 60 day period imposed by s 38(1) of the Valuation Act.

5. The Land Value contended by the Applicant in the Appeal was $270,000 and the Land Value contended by the Respondent in the Appeal was $430,000.

6. On 22 May 2024, a conciliation conference was held under s 34(1) of the LEC Act, with Acting Commissioner Davidson presiding.

7. At the conference, the parties reached an in principle agreement that the Land Value as at the valuing year 1 July 2022 should be $430,000.

8. The Court has the power to make a determination in place of the decision to which the appeal relates pursuant to s 40(1)(b) of the Valuation Act.

10. 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)(a) and subs (b) of the LEC Act to “disposal of proceedings in accordance with the parties’ decision”.

11. 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.

Notation:

12. The Court notes:

1. Each party is to bear its own costs of these proceedings.

Orders:

13. The Court orders:

1. The appeal is upheld.

2. The land value of 33 Nimala Avenue, Koolewong NSW 2256 (identified as Lot 99 in Deposited Plan 14946) as at the valuing year 1 July 2022 is amended to $430,000 in accordance with s 6A of the Valuation Act 1916.

Michael Davidson

Acting Commissioner of the Court

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Decision last updated: 25 June 2024