Hawke St Huskisson Pty Ltd v Valuer General of NSW

[2024] NSWLEC 1285

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hawke St Huskisson Pty Ltd v Valuer General of NSW [2024] NSWLEC 1285

Hearing dates:

Conciliation Conference on 20 May 2024

Date of orders:

03 June 2024

Decision date:

03 June 2024

Jurisdiction:

Class 3

Before:

Davidson AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The land value for Lots 7 and 8 in DP 758530, known as 17 Hawke St, Huskisson NSW 2540, as at 1 July 2022, is $1,600,000 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, 35B, 35C, 37, 38, 39, 40

Shoalhaven Local Environmental Plan 2014

Category:

Principal judgment

Parties:

Hawke St Huskisson Pty Ltd (Applicant)
Valuer General of New South Wales (Respondent)

Representation:

Counsel:
T Valentinetti (Applicant)
M Carpenter (Respondent)

Solicitors:
PDC Law (Applicant)
Crown Solicitor of NSW (Respondent)

File Number(s):

2024/38547

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The applicant appeals the Valuer General’s Determination dated 22 December 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 7 and 8 in Deposited Plan 758530 and known as 17 Hawke Street Huskisson NSW 2540 (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 22 December 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 Huskisson, a town in the Local Government Area of Shoalhaven.

2. The land was zoned, as at the relevant dates, SP2 – Infrastructure under the Shoalhaven Local Environmental Plan 2014 (LEP). The purpose shown on the LEP Land Zoning map for the subject land was “Place of Public Worship”.

3. The site area of the land is 6,070 square metres.

4. The land is bounded on the north by an unnamed laneway which represents the southern edge of the Huskisson Commercial shopping precinct.

5. The land has access off three streets, being generally level with the Hawke Street frontage and falling gently to the rear where it fronts Currambene Street. The third street frontage is to Bowen Street, between Hawke and Currambene Street.

6. Lot 8 includes a stand of around 20 mature eucalypt trees whilst Lot 7 is mostly cleared.

7. As at the date the valuation was made (30 August 2022) the land was improved with a weatherboard clad former church building, a residence with carport, sheds, and fencing.

8. Standard services are available to the land.

9. Surrounding development comprises residential properties to the south and east, commercial developments to the north and the Huskisson Park is directly opposite to the east.

Valuation objections and appeal

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

1. On 1 July 2022 the Land was valued at $6,150,000.

2. The Applicant lodged an objection to the Valuer General in respect of the Land valuation as at 1 July 2022.

3. On 22 December 2023 the Valuer General allowed the applicants objection and determined land value to be $2,000,000.

4. On 31 January 2024 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 2024/38547

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 20 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 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. Pursuant to s 29(1)(a) of the Valuation Act, the Respondent caused notice of the valuation of Lots 7 and 8 in DP 758530 (known as 17 Hawke St, Huskisson NSW 2540, Land) as at 1 July 2022 (Valuation) to be given to the Applicant, as the owner of the freehold estate in the Land.

2. The Applicant lodged with the Respondent written objection to the Valuation (Objection), pursuant to s 29(3A) of the Valuation Act, and the Respondent accepted the Objection.

3. Pursuant to ss 35B and 35C of the Valuation Act, the Respondent allowed the Objection and, on 22 December 2023, gave notice to the Applicant of the determination of the Objection.

4. Pursuant to s 37(1) of the Valuation Act, on 31 January 2024 the Applicant appealed to this Court.

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 for Lots 7 and 8 in DP 758530, known as 17 Hawke St, Huskisson NSW 2540, as at 1 July 2022, is $1,600,000 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: 03 June 2024