ISPT Pty Limited v Valuer General - [2008] NSWLEC 114

Land and Environment Court

of New South Wales

CITATION: ISPT Pty Limited v Valuer General [2008] NSWLEC 114
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
ISPT Pty Limited
RESPONDENT
Valuer General

FILE NUMBER(S): 30818 of 2006; 30527 of 2007

CORAM: Lloyd J

KEY ISSUES: Valuation of Land :- merits appeal

LEGISLATION CITED: Valuation of Land Act 1916 s 6A(1), s 37, s 40(2)
Fairfield Local Environmental Plan 1994
Fairfield Draft Local Environmental Plan 1994 (Amendment No 102)
Fairfield Town Centre Draft Development Control Plan 4/2004
State Environmental Planning Policy No 65 - Design Quality Residential Flat Development

CASES CITED: Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111

DATES OF HEARING: 25 February 2008, 27 February 2008, 28 February 2008 and 29 February 2008

DATE OF JUDGMENT:
29 February 2008

EX TEMPORE JUDGMENT DATE: 29 February 2008

LEGAL REPRESENTATIVES:
APPLICANT:
J E Griffiths SC and D T Miller (barrister)
SOLICITORS:
Gadens Lawyers
RESPONDENT:
T S Hale SC and J B Maston (barrister)
SOLICITORS:
Crown Solicitors

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Lloyd J
Sheehan AC

Friday, 29 February 2008

ISPT PTY LIMITED v VALUER GENERAL [2008] NSWLEC 114

EX TEMPORE JUDGMENT

HIS HONOUR: The court has come to a clear view as to the outcome of this appeal and is prepared to deliver judgment now, although it will not be as complete or as thorough as a judgment which is reserved.

There are two appeals before the court. The first is an appeal against the disallowance of an objection to land value assessment as at the base date of 1 July 2005. The second is an appeal against an objection to land value assessment as at the base date of 1 July 2006.

The appeals concern a property known as Fairfield Forum at No 36 Station Street, Fairfield. The Valuer General has valued the property at each base date at $17 million. The applicant contends that the valuation should have been $10,280,000 for the 2005 base date and $11,130,000 for the 2006 base date.

The valuation in each case is governed by the terms of s 6A(1) of the Valuation of Land Act 1916:

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, made or acquired by the owner of the owner’s predecessor in title, had not been made.

The subject property has an area of 4.282 hectares and is presently occupied by an older style sub-regional shopping centre. It is within zone 3(a) Sub-regional Business Centre under Fairfield Local Environmental Plan 1994.

In early 2005, Fairfield City Council placed on public exhibition draft local environmental plan amendment number 102 which…

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: [2008] NSWLEC 114
Decision Date: 28 February 2008

CaseChat Overview and Summary

ISPT Pty Limited sought to appeal against the Valuer General's valuation of their property located in Fairfield Forum. The dispute concerned the land value assessment as at the base dates of 1 July 2005 and 1 July 2006. ISPT argued that the valuations should have been $10,280,000 for the 2005 base date and $11,130,000 for the 2006 base date, whereas the Valuer General had assessed the value at $17 million for each base date. The primary issue before the court was whether the Valuer General's valuation of the property was correct or whether it should be higher as contended by ISPT.

The court found that the most relevant and comparable sales for assessing the unimproved value of the land were those within the Fairfield Town Centre, particularly the Neeta Shopping Centre, as these were sub-regional shopping centres similar to the intended use of the subject land. The court rejected ISPT's argument that the sales outside Fairfield were comparable, as they were either too remote or served a different market. The court preferred the evidence of Mr Watt, who had adjusted the Neeta City sale to deduce a land value of $22,690,000 for the 2005 base date and $23,440,000 for the 2006 base date. The court concluded that the Valuer General's assessment of $17 million was not incorrect, and that ISPT had not discharged the onus of proving that the valuation should be higher.

The court dismissed the appeals and made no order as to costs.

Orders