Mitchell v Valuer General of NSW

[2024] NSWLEC 1150

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mitchell v Valuer General of NSW [2024] NSWLEC 1150

Hearing dates:

Conciliation Conferences on 26 February 2024 and 15 March 2024

Date of orders:

28 March 2024

Decision date:

28 March 2024

Jurisdiction:

Class 3

Before:

Davidson AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The land value of 454A Burraneer Road, Coomba Park NSW 2428 (identified as Lot 5812 in Deposited Plan 1242544) is amended to $1,250,000 for the valuing year 1 July 2022, 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:

Land and Environment Court Act 1979 ss 19, 34

Valuation of Land Act 1916 ss 6A, 14, 35B, 35C, 37, 38, 39, 40

Great Lakes Local Environmental Plan 2014

Category:

Principal judgment

Parties:

Claire-Louise Mitchell (Applicant)
Valuer General (Respondent)

Representation:

Counsel:
J Mitchell (Applicant)
A Pearman (Respondent)

Solicitors:
Mitchell Business & Technology Lawyers Pty Ltd (Applicant)
Crown Solicitor of NSW (Respondent)

File Number(s):

2023/355181

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicant appeals the Valuer General’s Determination dated 25 October 2023 pursuant to s 37(1) of the Valuation of Land Act 1916 (Valuation Act) in respect of the valuation of the land value of the property legally described as Lot 5812 in Deposited Plan 1242544 and known as 454A Burraneer Road, Coomba Park NSW 2428 (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 Applicant appeals the determination of the Valuer General made on 25 October 2023 in respect of the objection by the Applicant to the valuation of the land value of the land as of 1 July 2022.

Planning Background and Site Features

2. Relevant features of the land are as follows:

1. The land is located in Coomba Park, a suburb in the Local Government Area of Mid Coast.

2. The land was zoned, as at the relevant dates, C4 – Environmental Living under the Great Lakes Local Environmental Plan 2014 (LEP).

3. The site area of the land is 11.98 Hectares.

4. The land is an irregular shaped undulating and mostly cleared waterfront reserve allotment with timber mostly along the boundaries with a grouping of trees to the north-western section of the land.

5. The land has a frontage to the water reserve of about 630 metres and achieves a restricted outlook to the west, north and east over the Coolongolook River across Shallow Bay.

6. Access to the subject is via an earthen formed road of about 230 metres (boundary) across adjoining property.

7. A portion of the land (mainly along waterfront boundaries) is noted as having class 2, class 3 and class 5 acid sulphate soils.

8. About 55% of the land is within a flood area including the access driveway.

9. The land is 100% bushfire affected noted as vegetation category 3.

10. The land is affected by an easement for overhead powerline located in the south-eastern corner with a variable width of 10.79 metres to 15.865 metres and variable length of 34.25 metres to 46.22 metres.

Valuation objections and appeal

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

1. On 1 July 2022 the Land was valued at $1,780,000.00.

2. On 11 July 2023 the Applicant lodged an objection to the Valuer General in respect of the Land valuation as at 1 July 2022.

3. On 25 October 2023 the Valuer General allowed the applicants objection and determined land value to be $1,550,000.

4. On 8 November 2023 the Applicant filed an appeal in Class 3 of the Court’s jurisdiction, under s 37(1) of the Valuation Act.

5. The matter was provided with case number 2023/355181

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 26 February, and 15 March 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 to make a decision in place of the decision to which the appeal relates 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 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.

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. The Valuer General determined the value of the land at 1 July 2022 pursuant to s 14 of the Valuation Act.

2. The Valuer General issued a Notice of Valuation to the Applicant with a last date to object of 12 July 2023.

3. The Valuer General allowed the Applicants objection, pursuant to s 35B of the Valuation Act, and issued a Notice of Determination on 25 October 2023, as required by s 35C of the Valuation Act, to the Applicant. The land value was changed to $1,550,000.

4. The Applicant lodged an Appeal to the Notice of Determination, pursuant to s 37 of the Valuation Act, in this Court on 8 November 2023

5. The land value contended by the Applicant in the Appeal was $1,200,000.

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act, between the parties, on 26 February 2024.

7. The conference was adjourned to 15 March 2024.

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:

1. The appeal is upheld.

2. The land value of 454A Burraneer Road, Coomba Park NSW 2428 (identified as Lot 5812 in Deposited Plan 1242544) is amended to $1,250,000 for the valuing year 1 July 2022, in accordance with s 6A of the Valuation of Land Act 1916.

Michael Davidson

Acting Commissioner of the Court

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Decision last updated: 28 March 2024