ISPT Pty Ltd v Valuer-General - [2006] NSWLEC 478

Land and Environment Court

of New South Wales

CITATION: ISPT Pty Ltd v Valuer-General [2006] NSWLEC 478

PARTIES: APPLICANT
ISPT Pty Ltd
RESPONDENT
Valuer-General

FILE NUMBER(S): 30043 of 2006; 30815 of 2006

CORAM: Pain J

KEY ISSUES: Valuation of Land :- onus of proof under s 40 of the Valuation of Land Act 1916 - determination of highest and best use - adjustment of comparable sales based on location

LEGISLATION CITED: Fairfield Local Environmental Plan 1994
Fairfield Town Centre Development Control Plan No. 4/97
Land and Environment Court Act 1979 s 39(2)
State Environmental Planning Policy No 65 – Design Quality Residential Flat Development
Valuation of Land Act 1916 s 6A(1), s 40

CASES CITED: Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1988) 65 LGERA 410 ;
Commonwealth Custodial Services Ltd v Valuer-General [2006] NSWLEC 400 ;
Commissioner of Land Tax v Nathan (1913) 16 CLR 654;
James Beattie Park, Elaine Park, Sue Ellen Regan and Ruby Violet Gladys Poulton v Allied Mortgage Corporation Limited, Mortage Finance Australia (Securities) Limited and Ors, Nos. NG980 of 1992 and NG663 of 1993, FED No. 462/95, Federal Court of Australia, 5 July 1995, Unreported;
Spencer v The Commonwealth (1907) 5 CLR 418

DATES OF HEARING: 19/07/2006
20/07/2006
21/07/2006

DATE OF JUDGMENT:
08/07/2006

LEGAL REPRESENTATIVES: APPLICANT
D T Miller (Barrister)
SOLICITORS
Gadens Lawyers
RESPONDENT
A Pickles (Barrister)
SOLICITORS
Crown Solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

7 August 2006

30043 of 2005, 30815 of 2005 ISPT Pty Limited v Valuer General
JUDGMENT

1 Her Honour: ISPT Pty Limited (“the Applicant”) has lodged appeals against two land value assessments for its property at 36 Station Street, Fairfield, known as the Fairfield Forum (“the subject land”). The appeals are lodged under s 37 of the Valuation of Land Act 1916 (“the Act”).

2 In matter no 30043 of 2005 the Valuer-General’s valuation was $10,700,000 for the base date of 1 July 2003. The Applicant argues for a valuation of $9,420,000 in this appeal and the Valuer-General now argues for a valuation of $17,550,000. In matter no 30815 of 2005 the Valuer-General’s valuation of the subject land 12 months later (base date 1 July 2004) was $15,000,000. The Applicant argues for $9,420,000 in this appeal and the Valuer-General now argues for $17,550,000. I went on a view of the subject site and all the comparable sales except for the Mona Vale site.

The subject land

3 The property is identified as Lot 1031 in DP 1049068. It is a large site of 4.282ha. It is located on the north-western edge of the Fairfield Town Centre at 36 Station Street, Fairfield. It is bounded by Cunninghame and Station Streets and has a gradual fall from the corner of these streets towards Nelson Street. It currently contains the Fairfield Forum shopping centre. Within the town centre another larger newer retail centre exists known as the Neeta Centre. The existing retail and commercial land use is generally low scale…

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: [2006] NSWLEC 478
Decision Date: 07/08/2006

CaseChat Overview and Summary

ISPT Pty Ltd appealed two land value assessments for its property at 36 Station Street, Fairfield, known as the Fairfield Forum. The Valuer-General argued for a valuation of $17,550,000 for both base dates of 1 July 2003 and 1 July 2004, while the Applicant argued for $9,420,000 for both base dates. The court had to decide whether the land value assessments were accurate and which party bore the onus of proof. The court found that the Applicant had the onus of proving the appellant's case, and that the appropriate value of the subject site should be based on the most cogent analysis of the chosen comparable sales. The court accepted the Applicant's valuer's analysis and reasoning, and found that the value Mr Jackson derived of $9,420,000 should be the land value assessment at the base dates 1 July 2003 and 1 July 2004. The court made the following orders: (a) In proceedings 30043 of 2005, in respect of the claim for the base date of 1 July 2003: (i) appeal allowed; (ii) the decision of the Valuer-General to which the appeal relates is revoked; (iii) the land value of the subject land, 36 Station Street, Fairfield, as at 1 July 2003, was $9,420,000. (b) In proceedings 30815 of 2005, in respect of the claim for the base date of 1 July 2004: (i) appeal allowed; (ii) the decision of the Valuer-General to which the appeal relates is revoked; (iii) the land value of the subject land, 36 Station Street, Fairfield, as at 1 July 2004, was $9,420,000.

Orders