Genovese v Valuer General of NSW

[2024] NSWLEC 1198

Land and Environment Court

New South Wales

Medium Neutral Citation:

Genovese v Valuer General of NSW [2024] NSWLEC 1198

Hearing dates:

Conciliation Conference on 8 March 2024

Date of orders:

18 April 2024

Decision date:

18 April 2024

Jurisdiction:

Class 3

Before:

Davidson AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The land value of the land legally described as Lots 1, 2, 3, 4, 5 and 6 in Community/Strata Plan 89354 and NSW Maritime lease 30003283, known as 86 St George Crescent, Drummoyne NSW 2047 is amended to $10,200,000 for the 2022 valuing year, in accordance with s 6A of the Valuation of Land 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 ss 6A, 29, 35, 35C, 37, 38, 39, 40

Canada Bay Local Environmental Plan 2013

Category:

Principal judgment

Parties:

Rose Genovese (1st Applicant)
Rinaldo Genovese (2nd Applicant)
Valuer General (Respondent)

Representation:

Counsel:
Daniel Hanna (Applicant)
Laura Johnston (Respondent)

Solicitors:
Crown Solicitor of NSW (Respondent)

File Number(s):

2023/353427

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicant appeals the Valuer General’s Determination dated 8 September 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 Lots 1, 2, 3, 4, 5 and 6 in Community/Strata Plan 89354 and NSW Maritime lease 30003283 and known as 86 St George Crescent, Drummoyne NSW 2047 (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 8 September 2023 in respect of the objection by the Applicant to the valuation of the land value 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 Drummoyne and, as at 1 July 2022, was zoned R3 – Medium Density Residential under the Canada Bay Local Environmental Plan 2013.

2. The site area of the land is 1,450 square metres.

Valuation objections and appeal

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

1. On 22 July 2022, the date the valuation was made (DVM), the Land was valued at $10,640,000.00 as at 1 July 2022 for the 2022 valuing year.

2. On 2 February 2023 the Applicants lodged an objection to the Valuer General in respect of the Land valuation as at 1 July 2022.

3. On 8 September 2023 the Valuer General disallowed the Applicants; objection.

4. On 6 November 2023 the Applicant filed an appeal in Class 3 of the Court’s jurisdiction, under s 37(1) of the Valuation Act.

5. The matter was provided with case number 2023/353427

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 8 March 2024. I presided over the conciliation conference.

7. At the conciliation conference, the parties reached 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 2021.

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. The proceedings fall within the Land and Environment Courts Class 3 jurisdiction pursuant to s 19(b) of the LEC Act. The jurisdictional prerequisites in the proceedings are ss 6A, 40(1)(a), and 40(1)(b) of the Valuation Act.

2. The applicants are, and were, on 1 July 2022, the owners of the freehold estate in the Land (s 29(1)(a) of the Valuation Act).

3. On 17 January 2023, the Chief Commissioner of State Revenue issued a Land Tax Assessment Notice to the Applicants. The Respondents valuation notice pursuant to s 29 of the Valuation Act was contained within that assessment in relation to the 2020, 2021 and 2022 valuation years (the Determination)

4. On 2 February 2023, pursuant to s 29(3A) of the Valuation Act, the Applicants lodged an objection with the Respondent against the Determination within the prescribed time for lodging an objection pursuant to s 35 of the Valuation Act.

5. On 8 September 2023, the Respondent disallowed the Applicants objection.

6. On 6 November 2023, the Applicants filed a Class 3 Valuation appeal pursuant to s 37(1) on the Valuation Act within the prescribed time for filing an appeal pursuant to s 38 of the Valuation Act seeking the revocation of the Respondents decision to value the Land for the 2022 valuing year in the amount that she did. The Applicants contended that the value the Respondent had assigned to the land was too high (see s 34(1)(a) of the Valuation Act.

7. For the purposes of the conciliation conference, the parties’ valuation experts (Stephen Wiseman for the Applicants and George Boulougouris for the Respondent) each applied s 6A of the Valuation Act by conducting an analysis of (what they considered to be) comparable sales to determine whether the value the Respondent had assigned to the land was too high.

8. On appeal under s 37 of the Valuation Act, the Land and Environment Court may make any one or more of the orders set out in s 40(1) of the Valuation Act in order to dispose of the proceedings. The agreement reached between the parties to resolve the proceedings complies with s 40(1)(b) of the Valuation Act as it makes a decision in the place of the Determination to which the appeal relates and is thus a decision that the Land and Environment Court has the jurisdiction and the power to make.

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 (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 the land legally described as Lots 1, 2, 3, 4, 5 and 6 in Community/Strata Plan 89354 and NSW Maritime lease 30003283, known as 86 St George Crescent, Drummoyne NSW 2047 is amended to $10,200,000 for the 2022 valuing year, in accordance with s 6A of the Valuation of Land Act 1916.

Michael Davidson

Acting Commissioner of the Court

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Decision last updated: 18 April 2024