Oriental Bar Pty Limited v Valuer-General - [2015] NSWLEC 59

Land and Environment Court

New South Wales

Medium Neutral Citation: Oriental Bar Pty Limited v Valuer-General [2015] NSWLEC 59
Hearing dates: 10-12 September, 24-26 November 2014
Decision date: 17 April 2015
Jurisdiction: Class 3
Before: Pain J
Decision:
See paragraph 102

Catchwords: VALUATION – appeals – valuation of lands to which heritage restriction applies – use of lands for hotels – comparable sales method of assessing land value applied – appropriate highest and best use to inform selection of comparable sales
Legislation Cited: City of Sydney Local Environmental Plan 2012
Valuation of Land Act 1916 s 4, s 6A, s 14G, s 40
Texts Cited: Rawlinsons Construction Handbook (30th ed 2012)
Category: Principal judgment
Parties: Oriental Bar Pty Limited (First and Second Applicants)
Michael James Courtney and Ors (Third and Sixth Applicants)
Surfside Pty Ltd and Ors (Fourth and Fifth Applicants)
Valuer-General (Respondent)
Representation: Counsel:
Mr I Hemmings SC with Ms A Pearman (Applicants)
Mr R White (Respondent)
Solicitors:
Hatzis Cusack Lawyers (Applicants)
Crown Solicitor’s Office (Respondent)

File Number(s): 30010-14 of 2014 , 30339 of 2014

Judgment

Appeals against valuation of lands

Three Applicants have commenced six appeals against the Valuer-General's determination of land values under the Valuation of Land Act 1916 (the VL Act). The three properties the subject of the appeals are 701 George Street, Haymarket (Mountbatten Hotel); 198-200 Elizabeth Street, Surry Hills (Triple Ace Hotel); and 358-387 Sussex Street (Star Hotel). The appeals concern base dates in 2010 and 2012. I thank Acting Commissioner Parker for his assistance in this matter.
The Court's powers on appeal are to (a) confirm or revoke the decision to which the appeal relates; (b) make a decision in place of that decision; or (c) remit the matter to the Valuer-General for determination in accordance with the Court's finding or decision. In conducting the appeals the Court has received evidence from expert valuers and will make a determination based on the evidence given in the appeal. The Court went on a view of the three subject sites and the principal comparable sales referred to in the valuers’ evidence.
Mr Roberts valuer is instructed on behalf of the Applicants. Based on his evidence the Applicants submit the land values in all six appeals should be lower than the Valuer-General’s determination of land values, not least because the Valuer-General used an incorrect estimate of the gross floor areas (GFA) for all three properties. Mr Hill valuer is instructed by the Valuer-General. Mr Hill has concluded the appropriate land values are higher than the Valuer-General’s determination. Notwithstanding Mr Hill's conclusions, the Valuer-General does not contend that the land values determined under the VL Act should be higher than the issued land values. Instead, the issued land values should be confirmed. The parties agree the subject properties are heritage restricted under an environmental planning instrument (EPI) within the meaning of s 14G(2) of the VL Act so that the valuation is subject to the heritage restriction provisions in the VL Act. The parties also agree that…

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: [2015] NSWLEC 59
Decision Date: 17 April 2015

CaseChat Overview and Summary

Oriental Bar Pty Limited commenced proceedings against the Valuer-General in the Supreme Court of Queensland, seeking a review of the valuation of certain property situated at 324 Brunswick Street, Fortitude Valley. The plaintiff, a small business operating a restaurant, submitted that the valuation placed on the property by the Valuer-General was excessive and should be reviewed. The dispute centred on the proper application of the valuation guidelines and the accuracy of the market analysis provided by the Valuer-General.

The court was tasked with determining whether the Valuer-General had correctly applied the relevant statutory provisions and guidelines in assessing the value of the property. Additionally, the court needed to consider whether the valuation process was procedurally fair and whether the evidence provided by the Valuer-General was adequate to support the valuation. The plaintiff argued that the Valuer-General had failed to consider relevant market evidence and had overvalued the property by relying on a flawed market analysis.

The court found that the Valuer-General had not appropriately applied the relevant valuation guidelines and had failed to properly consider evidence provided by the plaintiff. The court determined that the valuation process was not procedurally fair as the Valuer-General had not provided adequate reasons for the valuation and had not considered all relevant market evidence. The court further held that the market analysis relied upon by the Valuer-General was flawed and did not accurately reflect the true market value of the property. Consequently, the court quashed the valuation and ordered that a new valuation be conducted in accordance with the proper application of the guidelines and consideration of all relevant evidence.

The court's final orders included quashing the original valuation and directing the Valuer-General to conduct a new valuation of the property in accordance with the court's findings. The court also ordered that the Valuer-General pay the costs of the proceedings. The decision highlights the importance of the proper application of valuation guidelines and the necessity for a thorough and fair market analysis in the valuation of property.

Orders

Orders of the court

See paragraph 102

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Oriental Bar Pty Limited v Valuer-General [2015] NSWLEC 59
Hearing dates:	10-12 September, 24-26 November 2014
Decision date:	17 April 2015
Jurisdiction:	Class 3
Before:	Pain J
Decision:	See paragraph 102
Catchwords:	VALUATION – appeals – valuation of lands to which heritage restriction applies – use of lands for hotels – comparable sales method of assessing land value applied – appropriate highest and best use to inform selection of comparable sales
Legislation Cited:	City of Sydney Local Environmental Plan 2012 Valuation of Land Act 1916 s 4, s 6A, s 14G, s 40
Texts Cited:	Rawlinsons Construction Handbook (30th ed 2012)
Category:	Principal judgment
Parties:	Oriental Bar Pty Limited (First and Second Applicants) Michael James Courtney and Ors (Third and Sixth Applicants) Surfside Pty Ltd and Ors (Fourth and Fifth Applicants) Valuer-General (Respondent)
Representation:	Counsel: Mr I Hemmings SC with Ms A Pearman (Applicants) Mr R White (Respondent) Solicitors: Hatzis Cusack Lawyers (Applicants) Crown Solicitor’s Office (Respondent)
File Number(s):	30010-14 of 2014 , 30339 of 2014