Lucky Tiger Pty Ltd v Valuer General

[2022] NSWLEC 1667

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lucky Tiger Pty Ltd v Valuer General [2022] NSWLEC 1667

Hearing dates:

Conciliation Conference on 21 November 2022

Date of orders:

02 December 2022

Decision date:

02 December 2022

Jurisdiction:

Class 3

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The land value of the property legally described as SP48982, known as 2 Rowe Street, Eastwood NSW 2122 for the Valuing Year 1 July 2021 is determined as $7,515,000.00 in accordance with s 6A of the Valuation of Land Act 1916.

Catchwords:

VALUATION APPEAL – land valuer - conciliation conference – agreement between the parties – orders

Legislation Cited:

Heritage Act 1977

Land and Environment Court Act 1979 ss 19, 34

Ryde Local Environmental Plan 2014

Valuation of Land Act 1916 ss 6A, 37, 38, 41

Category:

Principal judgment

Parties:

Lucky Tiger Pty Ltd ATF The Lucky Tiger Trust (First Applicant)
Eastwood 88 Pty Ltd (Second Applicant)
Valuer General (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
T Poisel (Respondent)

Solicitors:
Foteades Freeman Cohen (Applicant)
Crown Solicitor of NSW (Respondent)

File Number(s):

2022/269706

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: The Applicants appeal the Valuer General’s Determinations dated 18 May 2022 and 13 July 2022 pursuant to s 37(1) of the Valuation of Land Act 1916 (NSW) (Valuation Act) in respect of the valuation of the land value of the property legally described as SP48982 and known as 2 Rowe Street, Eastwood NSW 2122 (the 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 First Applicant appeals the Determination of the Valuer General made on 18 May 2022 in respect of the objection by the First Applicant to the valuation of the land valuer of the land as of 1 July 2021.

4. The Second Applicant appeals the Determination of the Valuer General made on 13 July 2022 in respect of the objection by the Second Applicant to the valuation of the land value of the land as of 1 July 2021.

2. The land is located on the southwestern corner of Rowe Street and Ryedale Road Eastwood, 2122, within the Local Government Area of Ryde. The land:

1. Is located within the Eastwood Town Centre;

2. At the relevant date (1 July 2021) the land was zoned B4-Mixed Use pursuant to Ryde Local Environment Plan 2014 (RLEP 2014).

3. Neither RLEP 2014 nor any relevant Development Control Plan prescribed a Floor Space Ratio control.

4. The height limit under RLEP 2014 is 15.5m being a 5 storey building.

5. Under the RLEP 2014 neither the building nor the land is listed as a heritage item, nor listed within a Heritage Conservation Area.

6. Neither the land nor the building is listed on the State Heritage Register pursuant to the Heritage Act 1977.

7. The land contains a northern street frontage of 20.75 irregular metres to Rowe Street, a southern rear boundary of 20.84m, an eastern boundary frontage of 47.29m to Ryedale Road, and a western boundary of 50.29m. The site area of the land is 1018m².

8. As at the relevant valuing year, the highest and best use of the land, assuming the land is vacant, is for a multi-level mixed use development site containing retail/commercial use to the ground level and residential units to the upper levels. The development would incorporate ancillary off-street parking, with a height limit of 15.5m which equates to a 5 storey building.

Legislation - Valuation of Land Act 1916

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

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.

41   Giving effect to decision on appeal

(1)  Within 60 days after the decision on appeal becomes final, the Valuer-General must take any action that is necessary to give effect to the decision, which may include altering the Register of Land Values in any relevant respect.

(2)  If no appeal from a decision of the Land and Environment Court is instituted within 30 days after the day on which the decision is made, the decision of the Land and Environment Court is taken, for the purposes of this section, to have become final at the end of the 30-day period.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 November 2022. I presided over the conciliation conference.

4. 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 to determine the value of the land, and s 41(1)(b) of the Valuation Act to make a decision in place of the decision to which the appeal relates.

5. 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 41(1)(b) of the Valuation Act to make a decision in place of the decision to which the appeal relates in relation to land value of the land as of 1 July 2021.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be ss 6A and 41(1)(b) of the Valuation Act, and explained how the jurisdictional prerequisites have been:

1. The Applicants are the registered proprietors of the land, and entitled to bring the proceedings pursuant to s 37(1) of the Valuation Act.

2. The parties’ valuers attended the s 34(1) Conciliation Conference (Mr D Lunney for the Applicants, and Mr D Hill for the Respondent), and negotiated on a without prejudice basis and in good faith.

3. Pursuant to s 38(1)(b) of the Valuation Act on 14 October 2022 the Court extended the time for filing an appeal in relation to:

1. The First Applicant in relation to the Valuer General’s Determination dated 18 May 2022;

2. The Second Applicant in relation to the Valuer General’s Determination dated 13 July 2022.

And granted leave for the Amended Appeal on filed on 13 October 2022.

4. At the Conciliation Conference the parties reached agreement as to the land value for the land as of 1 July 2021 and requested the Court make orders in accordance with s 41(1)(b) of the Valuation Act.

7. 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.

8. 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)(b) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

9. The Court notes that the parties have agreed that each party is to bear its own costs of these proceedings.

10. The Court orders:

1. The appeal is upheld.

2. The land value of the property legally described as SP48982, known as 2 Rowe Street, Eastwood NSW 2122 for the Valuing Year 1 July 2021 is determined as $7,515,000.00 in accordance with s 6A of the Valuation of Land Act 1916.

…………………………

M Peatman

Acting Commissioner of the Court

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Decision last updated: 02 December 2022