Lara Dezma Malouf and Ltirm Pty Ltd v Valuer General of NSW

[2024] NSWLEC 1691

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lara Dezma Malouf and Ltirm Pty Ltd v Valuer General of NSW [2024] NSWLEC 1691

Hearing dates:

Conciliation Conferences on 23 September 2024 and 9 October 2024

Date of orders:

31 October 2024

Decision date:

31 October 2024

Jurisdiction:

Class 3

Before:

Davidson AC

Decision:

The Court orders:

In respect of proceedings 2024/212405

(1) The value of the whole land legally described as Lot 14, Section B in DP 12979 and known as No.104 Iluka Road, Palm Beach is confirmed as $14,000,000 as at the valuing year 1 July 2022 pursuant to s 6A of the Valuation of Land Act 1916.

(2) The proceedings are otherwise dismissed.

In respect of proceedings 2024/212426

(1) The appeal is upheld

(2) The value of the whole land legally described as Lot 14, Section B in DP 12979, known as No. 104 Iluka Road, Palm Beach is amended to $14,823,000 for the valuing year 1 July 2023 pursuant to 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, Pt 4, ss 6A, 29, 35, 35AA, 35B, 35C, 37, 38, 39, 40

Pittwater Local Environmental Plan 2014

Category:

Principal judgment

Parties:

Lara Dezma Malouf (Applicant)
Ltirm Pty Ltd (2nd Applicant)
Valuer General (Respondent)

Representation:

Counsel:
A Hannam (Applicant)
M Carpenter (Respondent)

Solicitors:
Piper Alderman (Applicant)
Crown Solicitor of NSW (Respondent)

File Number(s):

2024/212405
2024/212426

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicant appeals the Valuer General’s Determinations dated 12 April 2024 pursuant to s 37(1) of the Valuation of Land Act 1916 (Valuation Act) in respect of the valuations of the land value of the property legally described as Lot 14, Section B, in DP 12979, known as 104 Iluka Road, Palm Beach (“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 12 April 2024 in respect of the objections made by the Applicant to the valuations of the land value of the land as of 1 July 2022 and 1 July 2023.

Planning Background and Site Features

2. Relevant features of the land are as follows:

1. The land is located in Palm Beach in the Local Government Area of Northern Beaches.

2. The subject land is known as Lot 14, Section B, Deposited Plan 12979. The land has a site area of 613.4 square metres with a frontage of 13.72 metres to Iluka Road.

3. Approximately 75 square metres of the subject land at the rear is land between the foreshore building line and the mean high-water mark.

4. The land is slightly irregular in shape and is located on the western side of Iluka Road, at road level, with a gently sloping topography. It backs onto ‘Snapperman Beach’ and enjoys district views as well as excellent water views over Pittwater.

5. The land was zoned, as at the relevant dates, C4 – Environmental Living under the Pittwater Local Environmental Plan 2014, originally published on 30 May 2014. The main planning controls applied to the subject land are a Height of Building limit of 8.5 metres and a minimum lot size of 700 square metres.

6. Iluka Road is bitumen sealed with no kerb and gutter. Pedestrian and vehicular access to the subject land is good. All usual urban services are available for connection. Surrounding development predominantly comprises mixed age, quality, and style residential dwellings.

Valuation objections and appeal

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

1. The land was valued at $14,000,000 for the 1 July 2022 valuing year and $15,900,000 for the 1 July 2023 valuing year.

2. On 21 February 2024, pursuant to s 29 of the Valuation Act, the Chief Commissioner of State Revenue issued an assessment of land tax, with embedded Notices of Valuation, to the Applicant

3. On 8 March 2024, the Applicants lodged objections to the Valuer General in respect of the land valuations as at 1 July 2022 and 1 July 2023.

4. On 12 April 2024 the Valuer General disallowed the applicants’ objections.

5. On 8 June 2024 the Applicants filed appeals in Class 3 of the Court’s jurisdiction, under s 37(1) of the Valuation Act.

6. The matters were provided with case numbers 2024/212405 (1 July 2022) and 2024/212426 (1 July 2023)

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 23 September 2024 and 9 October 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 confirming the decision to which the appeal relates in relation to 2024/212405 and making a decision in place of the decision to which the appeal relates in relation to 2024/212426 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 “confirm or revoke the decision to which the appeal relates” in relation to the land value of the land as of 1 July 2022 and “make a decision in place of the decision to which the appeal relates” in relation to the land value of the land as of 1 July 2023.

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. On 21 February 2024, the Chief Commissioner of State Revenue issued a Land Tax Assessment Notice to the Applicant. The Respondent’s valuation notices pursuant to s 29 of the Valuation Act were contained within that assessment in relation to the 2021, 2022 and 2023 valuation years.

2. On 8 March 2024, the Applicant lodged objections to the land value assessment for the 2022 and 2023 valuing years pursuant to s 29(3A) of the Valuation Act within the prescribed time for lodging an objection pursuant to s 35(1)(b) of the Valuation Act. The valuations used as the basis of the land tax assessment of 21 February 2024 had not been the subject of a prior objection, and as such s 35AA of the Valuation Act did not apply.

3. On 12 April 2024, the Valuer General disallowed the Applicant’s objections pursuant to s 35B and issued a Notice of Determination to the Applicant as required by s 35C of the Valuation Act.

4. On 8 June 2024, the Applicants lodged an Appeal pursuant to s 37 of the Valuation Act in this Court, within the 60-day period imposed by s 38(1) of the Valuation Act.

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:

14. Proceedings 2024/212405

1. The value of the whole land legally described as Lot 14, Section B, in DP 12979 and known as No.104 Iluka Road, Palm Beach is confirmed as $14,000,000 as at the valuing year 1 July 2022 pursuant to s 6A of the Valuation of Land Act 1916.

2. The proceedings are otherwise dismissed.

3. Proceedings 2024/212426

4. The appeal is upheld; and

5. The value of the whole land legally described as Lot 14, Section B, in DP 12979, known as No. 104 Iluka Road, Palm Beach is amended to $14,823,000 for the valuing year 1 July 2023 pursuant to s 6A of the Valuation of Land Act 1916.

Michael Davidson

Acting Commissioner of the Court

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Decision last updated: 31 October 2024