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ISPT Pty Ltd v Melbourne City Council

ISPT Pty Ltd v Melbourne City Council

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Case Copied 19 September 2008 75 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3721 of 2007

ISPT PTY LTD
ISPT PTY LTD	Applicant
v
MELBOURNE CITY COUNCIL	First respondent
and
VALUER-GENERAL OF VICTORIA	Second respondent

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JUDGES:	WARREN CJ, KELLAM JA and OSBORN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 March 2008
DATE OF JUDGMENT:	19 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 180

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VALUATION OF LAND – Application for leave to appeal decision of Victorian Civil and Administrative Tribunal – Role of the Tribunal – Whether expert tribunal – Whether Tribunal pieced together own valuation.

VALUATION OF LAND – Highest and best use – Whether single precise use or combination of uses.

VALUATION OF LAND – Comparable sales – Improved and unimproved sales – Vacant land sales – Weight to be given to valuer’s evidence.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr J Delany SC with Mr D Batt	Gadens
For the Council	Mr JH Gobbo QC with Mr J Pizer	Maddocks
For the Valuer-General	Mr C Caleo SC with Mr C Horan	Victorian Government Solicitor

WARREN CJ:
KELLAM JA:
OSBORN AJA:

This is an application for leave to appeal and, if leave is granted, an appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’), pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act (‘the VCAT Act’). For leave to be granted, the applicant must identify a question of law which is relevant to the granting of the relief sought on appeal and show that there is a real or significant argument to be put on that question of law.[1]
[1]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.

This proceeding concerns the site value of the land at 114 William Street, Melbourne. It is located on the north-east corner of William Street and Little Collins Street and comprises 1,858 square metres. It contains a building with a ground level foyer and retail tenancies, 25 storeys used for office purposes and two basement car parking levels. The zoning of the land permits a variety of uses including commercial office development and residential uses.

The Melbourne City Council (‘the Council’) provided two valuations of the land, one as at 1 January 2002 and the other as at 1 January 2004, of $5,568,000 and $5,940,000 respectively. ISPT, the owner of the land, objected to the valuations as being too high. The Council disallowed the objections. Subsequently, pursuant to s 22(1) of the Valuation of Land Act 1960 (VLA)[2] as it then stood, ISPT gave notice to the Council that it required the Council to refer ISPT’s disallowed objections to the Tribunal. Before the Tribunal, ISPT contended that as at both 1 January 2002 and 1 January 2004 the site value of the land was $3,720,000.
[2]Section 22. Right of review or appeal (1) Subject to section 23, if—(a) an objector is dissatisfied with the determination of the Commissioner, a valuer or the valuer-general on the objection; … — the objector may lodge…

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] VSCA 180
Decision Date: 19 September 2008

CaseChat Overview and Summary

ISPT Pty Ltd sought leave to appeal against a decision of the Victorian Civil and Administrative Tribunal (VCAT) concerning the valuation of a parcel of land owned by the Melbourne City Council. The Tribunal had determined the value of the land and the highest and best use of the property, considering various valuation methods and expert evidence. ISPT challenged the decision, arguing that VCAT had incorrectly assessed the role of expert evidence and had improperly pieced together its own valuation of the land.

The primary legal issues before the court were whether VCAT acted as an expert tribunal in determining the valuation of the land, whether the highest and best use of the land should be considered as a single precise use or a combination of uses, and the weight to be given to the valuer’s evidence, particularly in relation to comparable sales of improved and unimproved properties and vacant land. ISPT contended that VCAT had overstepped its role by essentially becoming an expert tribunal and that it had misapplied the principles of valuation.

The court considered the nature of VCAT’s role, affirming that while it is not an expert tribunal, it has the discretion to make its own assessment of expert evidence and to determine the weight to be given to such evidence. The court found that VCAT had appropriately exercised its discretion in assessing the evidence presented, including the evidence of the valuer, and had correctly determined the highest and best use of the land, which could encompass a combination of uses. The court also upheld VCAT’s approach to considering both improved and unimproved sales and vacant land sales in its valuation, finding that VCAT had appropriately weighed the evidence and reached a reasonable conclusion.

The court ultimately denied the application for leave to appeal, affirming the decision of VCAT. The court found that VCAT had not acted beyond its jurisdiction or made any error of law in its determination of the land's valuation and highest and best use. The court held that VCAT's approach to the valuation evidence was sound and that ISPT's appeal was without merit.

Orders