Law v Valuer General

[2008] NSWLEC 1449

Land and Environment Court

of New South Wales

CITATION:

Law and Anor v Valuer General [2008] NSWLEC 1449

PARTIES:

APPLICANT
Carina & Philip Law and Joel Moryosef

RESPONDENT
Valuer General

FILE NUMBER(S):

30336 of 2008

CORAM:

Miller AC

KEY ISSUES:

Valuation of Land :-

LEGISLATION CITED:

Valuation of Land Act 1916
Campbelltown (Urban Area) Local Environmental Plan 2002
Campbelltown (Sustainable City) Development Control Plan

DATES OF HEARING:

15/10/2008

 
DATE OF JUDGMENT: 

6 November 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Moryosef, litigant in person

RESPONDENT
Ms M. Carpenter, barrister
Instructed by Ms C. Anthony
of Crown Solicitors Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Miller AC

5 November 2008

30336 of 2008 Law & Anor v Valuer General

JUDGMENT

1 This is an appeal against the Land Value assessed under section 6 A (1) of the Valuation of Land Act 1916 (the Act ) in respect of the property, 138 Thunderbolt Drive, Raby, as at the Base Date of 1 July 2006.

Background

2 The Land Value was assessed by the Valuer General at $378,000. The applicant originally contended that the Land Value should be $150,000 but prior to the hearing revised this to $330,000.

The Subject Property

3 The land is located on the southern side of Thunderbolt Drive approximately 60 metres to the east of Hurricane Drive. It is a rectangular shaped parcel with front and rear boundaries of 28.5 m and side boundaries of 45 m. The area is 1279 square metres. The land rises from street frontage to a comparatively level area in the centre before falling slightly to the rear.

4 Improvements on the land comprise a single level commercial building occupied as professional consulting rooms (medical centre and accountants office), a pharmacy and a hair dressing salon. On-site car parking is provided.

5 The land adjoins the Robert Townson High School which itself is adjacent to the Robert Townson Public School; the latter having frontage to Shuttleworth Avenue. Surrounding residential development is predominantly single detached houses although medium density housing has been constructed on land at the rear, with frontage to Hurricane Drive, extending some distance south to an area of open space.

6 The land is zoned as Local Comprehensive Centre 10 (c) under the Campbelltown (Urban Area) Local Environmental Plan 2002. The objectives of this zone are:

• to provide conveniently located land for a range of shops, commercial premises and professional services that are of a domestic scale and compatible with residential development in order to serve the needs of local neighbourhoods
• to provide opportunities for local employment
• to accommodate a range of activities required in the locality, but which are not appropriate on land in zone 2 (b)
• to encourage a variety of forms of higher density housing, including accommodation for older people and people with disabilities, in locations which are accessible to public transport, employment, retail, commercial and service facilities.

7 The vacant land immediately adjoining to the west is similarly zoned as is the land fronting Hurricane Drive on which medium density housing, already referred to, has been developed.

8 Raby is broadly confined by three secondary roads being in Epping Forest Drive on the west, Spitfire Drive and Eagle Vale Drive on the east and Thunderbolt Drive on the north; together they provide access to the residential streets within the suburb. Raby Road, which is a major road connecting Campbelltown Road to the east with Camden Valley Way to the west, dissects the suburb into east and west sections. Bus transport is available within Raby and to adjacent suburbs.

The Evidence

9 The applicant was represented by Mr J. Moryosef who owns an interest in the property as a tenant in common with Mr and Mrs Law. Certain information in relation to Lakeside Industrial Village adjacent to Johnson Rd , Campbelltown was admitted for the purpose of cross-examination of the respondent's valuer but otherwise Mr Moryosef did not produce any valuation evidence.

10 Mr L. Kenny, a Registered Valuer, provided a detailed written report and gave oral evidence on behalf of the respondent. He assessed the Land Value in accordance with section 6A (1) of the Act at $378,000.

11 Mr Kenny concluded that the highest and best use of land was as currently developed for uses similar to the existing occupations.

12 While Mr Kenny's report contained details of sales of seven properties, which he regarded as being comparable, in the valuation sense of that word, only one was similarly zoned to the subject land with all others being zoned Residential 2 (b). However, one of those residentially zoned properties was subject to an existing commercial use and for that reason Mr Kenny considered it to be particularly relevant. This property and the one similarly zoned to the subject property were considered by Messrs Moryosef and Kenny to be the only two critical comparables and for this reason were the only two properties inspected. Details are set out on the annexure to this Judgment.

13 Notwithstanding his view as to the highest and best use of the land and as a check to his valuation, Mr Kenny completed a second valuation based on the residential potential of the land as permitted under the zoning. Part 3.9, of the Multi Dwelling Housing of the Campbelltown (Sustainable City) Development Control Plan (effective 31 August 2005) sets out site and density requirements. They led him to the conclusion that the potential of the land, on this basis, was for four townhouses.

14 In respect of all sales considered , Mr Kenny arrived at a deduced land value and then made adjustments for date of sale (relative to the Base Date), location, land size, topography, any development approval and aspect. To justify his adjustments for variation in land size, he compared three groups comprising two properties each with substantially different land areas, to demonstrate a percentage increase in rates per square metre for the smaller sized parcels. Mr Kenny's conclusions, in this regard, were challenged by Mr Moryosef's analysis of some sales in Lakeside Industrial Village.

Findings

15 Section 40 (2) of the Act states that on an appeal the applicant has the onus of proving the applicant's case. While Mr Moryosef did not produce any valuation evidence he did provide information concerning the sale of certain lots in Lakeside Industrial Village which he considered were relevant for the purpose of making adjustments for the size of land sold compared with the subject land . The markets for industrial land and land zoned similarly to the subject land and are distinct and can be properly differentiated. Even so comparisons made , on careful examination , added some weight to Mr Kenny's conclusions on this aspect of his analysis. Mr Moryosef cross-examined Mr Kenny and Mr Kenny answered a number of my questions on a range of matters touching his valuation.

16 One focus of questioning was the analysis of the sale of 2 Atchison Road, Macquarie Fields concerning whether or not an allowance should be made for any goodwill that may attach to the service station business conducted in this property at the date of sale. Without the benefit of some reliable evidence on this particular point , I accepted Mr Kenny's opinion that no allowance should be made.

17 I am satisfied that Mr Kenny's adjustments to the deduced land value for the two sales that were inspected are appropriate and justify a Land Value assessment of $378,000 which is the approximate equivalent of $300 per square metre.

18 Of the five residentially zoned sales detailed in Mr Kenny's report that were not inspected, nothing was forthcoming in either cross-examination or my questioning to challenge his adjustments to the deduced land values for comparison with the subject land. Accordingly, I accept Mr Kenny's conclusions indicating a range of values for the subject land from $88129 to $100000 per townhouse site. I concur that a Land Value of $378,000, indicating a rate of $94,500 per townhouse site (adopting the property’s potential for four townhouses), appears to be justified.

19 Having regard to my conclusions, Mr Moryosef did not discharge his obligation under section 40 (2) of the Act.

20 The Orders of the Court:

1 The appeal is dismissed.
2 The Land Value of 138 Thunderbolt Drive, Raby, at the Base Date of 1 July 2006, is confirmed at $378,000.
3. No Order is made as to costs.

___________________

E Craig Miller
Acting Commissioner of the Court

Annnexure

Comparable Sales Analysis

Pertinent details of Mr Kenny's critical sales are set out hereunder.

19 Kitson Place, Minto .

· Contract date. 5 September 2005.

· Settlement date. 16 December 2005.

· Sale price. $685,000.

· Land . 3036 square metres. Rectangular shape.

· Zoning. Local Comprehensive Centre 10 (c).

· Improvements. Nil

· Features and Remarks . The land falls to the rear and is in an inferior position to the subject property. The purchaser was the owner of the neighbouring Grammar School but the property had been exposed to the general market prior to the sale for some time. My conclusion is that the price did not include a premium above market value. Land size is 2.4 times that of the subject property.

· Deduced Land Value. $225 63 per square metre.

· Adjusted for Comparison with the Subject Property. $298 96 per square metre

2 Atchison Road, Macquarie Fields.

· Contract date. 30 April 2007.

· Settlement date. 15 May 2007.

· Sale Price. $620,000.

· Zoning. Residential 2 (b)

· The Land 1208 square metres. Located on the corner of Saywell Road. Rectangular shape . Slight fall to the rear.

· Improvements. Dated service station and workshop building considered to be worth $150,000.

· Features and Remarks. Existing use rights apply to the improvements. Development approval has been granted for additions to the rear. Superior location to the subject land being in located on the fringe of Macquarie Fields shopping centre and on a prominent corner.

· Deduced Land Value. $390 per square metre

· Adjusted for Comparison with the Subject Property. $321 75 per square metre.

___________________

E Craig Miller
Acting Commissioner of the Court