Paine v Valuer General of New South Wales

[2025] NSWLEC 1170

Land and Environment Court

New South Wales

Medium Neutral Citation:

Paine v Valuer General of New South Wales [2025] NSWLEC 1170

Hearing dates:

Conciliation Conference on 26 February 2025

Date of orders:

20 March 2025

Decision date:

20 March 2025

Jurisdiction:

Class 3

Before:

Davidson AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to s 40(1)(b) of the Valuation of Land Act 1916, the land value of $1,730,000 for Lot 348 in DP 249377, known as 56 Tingira Drive, Bawley Point NSW 2539, for the 1 July 2023 valuing year is amended to $1,650,000.

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

Category:

Principal judgment

Parties:

Bruce Arthur Paine (Applicant)

Valuer General of New South Wales (Respondent)

Representation:

Bruce Arthur Paine (self represented)

Counsel:

L Johnstone (Respondent)

Solicitors:

Crown Solicitor of NSW (Respondent)

File Number(s):

2024/353789

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicant appeals the Valuer General’s Determination dated 5 August 2024 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 384 in Deposited Plan 249377, known as 56 Tingira Drive, Bawley Point NSW 2539 (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 5 August 2024 in respect of the objection made by the Applicant to the valuation of the land value of the Land as of 1 July 2023.

Planning Background and Site Features

2. Relevant features of the land are as follows:

1. The Land is a near rectangular shaped inside lot on the western side of Tingira Drive directly opposite the Bawley Point beach reserve and is within 80 metres of the northern end of Cormorant Beach (east facing beach) and is within 500 metres of Bawley Beach (north-easterly orientated beach). It is located within the suburb of Bawley Point in the Local Government Area of the City of Shoalhaven.

2. The Land rises gently above the road where there is a gentle cross fall from the northern side boundary to the south side boundary. Due to established trees directly opposite, the Land at ground level affords no ocean views directly east and very filtered but mostly obstructed beach views to the south-east. The Land would afford ocean and headland views to the north-east from a potential second floor towards the Bawley Point headland. No significant views are afforded from the rear yard.

3. The Land has tank water and an onsite sewer disposal system (pump out sewerage). Power is connected. Tingira Drive is bitumen sealed with this section having concrete kerbing.

Valuation objections and appeal

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

1. On 4 January 2024, the Chief Commissioner of State Revenue issued a Land Tax Assessment Notice to the Applicant. The Respondent’s valuation notice pursuant to s 29 of the Valuation Act was contained within that assessment in relation to the 2023 valuing year (the Determination).

2. On 2 March 2024, the Applicant lodged an objection to the Determination 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 valuation used as the basis of the land tax assessment of 4 January 2024 had not been the subject of a prior objection, and as such s 35AA of the Valuation Act did not apply.

3. On 5 August 2024, the Valuer General disallowed the Applicant’s objection pursuant to s 35B and issued a Notice of Determination to the Applicant as required by s 35C of the Valuation Act.

4. On 24 September 2024, the Applicant lodged an appeal (the 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.

5. The land value contended by the Applicant in the Appeal for valuing year 1 July 2023 was $1,404,000 and the land value contended by the Respondent in the Appeal was $1,730,000.

Legislation - Valuation of Land Act 1916

4. Section 6A of the Valuation Act 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, ss 37-40 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 2025. 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 making a decision in place of the decision to which the appeals relate in relation to the 2023 valuing year 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 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. The Applicant is the owner of the freehold estate in the Land (s 29(1)(a) of the Valuation Act).

2. On 4 January 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 2023 valuation year.

3. On 2 March 2024, the Applicant lodged an objection to the Determination 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 valuation used as the basis of the land tax assessments had not been the subject of a prior objection, and as such s 35AA of the Valuation Act did not apply.

4. On 5 August 2024, the Valuer-General disallowed the Applicant’s objection pursuant to s 35B and issued a Notice of Determination to the Applicant as required by s 35C of the Valuation Act.

5. On 24 September 2024, the Applicant lodged an appeal (the 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.

6. The Land Value contended by the Applicant in the Appeal for valuing year 1 July 2023 was $1,404,000 and the Land Value contended by the Respondent in the Appeal was $1,730,000.

7. On 26 February 2025, a conciliation conference was held under s 34(1) of the LEC Act.

8. The parties reached an agreement during the conciliation conference that the Land Value of the Land is $1,650,000 for the 1 July 2023 valuing year.

9. The Court has the power to make a determination in place of the decision to which the Appeal relates pursuant to s 40(1)(b) 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 for the “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. Pursuant to s 40(1)(b) of the Valuation of Land Act 1916, the land value of $1,730,000 for Lot 348 in DP 249377, known as 56 Tingira Drive, Bawley Point NSW 2539, for the 1 July 2023 valuing year is amended to $1,650,000.

Michael Davidson

Acting Commissioner of the Court

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Decision last updated: 20 March 2025