Sapphire Suite Pty Ltd v Valuer General of NSW

Case •

[2023] NSWLEC 1331

•

30 June 2023

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Sapphire Suite Pty Ltd v Valuer General of NSW [2023] NSWLEC 1331
Hearing dates: Conciliation Conference on 13 June 2023
Date of orders: 30 June 2023
Decision date: 30 June 2023
Jurisdiction:Class 3
Before: Davidson AC
Decision:

The Court orders:

(1) The appeal is dismissed.

(2) The land value of the property legally described as Lot 1 in Deposited Plan 102650, known as 70-70A Darlinghurst Road, Potts Point NSW 2011 is confirmed as $3,990,000 for the Valuing Year 1 July 2021, 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

Land and Environment Court Rules 2007 r 3.7

Sydney Local Environmental Plan 2012

Valuation of Land Act 1916 ss 6A, 29, 34, 37, 38, 40

Category:Principal judgment
Parties: Sapphire Suite Pty Ltd (Applicant)
Valuer General (Respondent)
Representation:

Counsel:
A Stewart (Solicitor) (Applicant)
C Winnett (Respondent)

Solicitors:
Stewart Law (Applicant)
Crown Solicitor for NSW (Respondent)
File Number(s): 2022/313647
Publication restriction: No

Judgment

  1. COMMISSIONER: The Applicant appeals the Valuer General’s Determinations dated 16 May 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 Lot 1 in Deposited Plan 102650, known as 70-70A Darlinghurst Road, Potts Point NSW 2011 (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 16 May 2022 in respect of the objection by the Applicant to the valuation of the land as of 1 July 2021.

  1. The Land is located on the south-eastern side of Darlinghurst Road, approximately 25 metres northeast of the traffic light intersection with Bayswater Road, within the suburb of Potts Point and the local government area of City of Sydney.

Planning Context

  1. The Planning Context of the land is as follows:

  1. The Land was zoned, at the relevant date, as B2 Local Centre under the Sydney Local Environmental Plan 2012 (LEP).

  2. The Land contains a north-western street frontage of 7.68 metres to Darlinghurst Road, a south-eastern rear street frontage of 7.51 metres to Kellett Street with side boundaries of 38.14 and 38.13 metres. The site area of the Land is 278.5m2.

  3. The subject contains a maximum allowable floor space ratio, FSR, of 3:1. This equates to a maximum developable gross floor area, GFA, of 835.5 square metres.

  4. The subject contains a maximum building height limit of 22 metres.

  5. The building upon the subject land is not listed as a heritage item under the relevant Council planning scheme.

  6. The land is located within the Potts Point Heritage Conservation Area.

  7. The building upon the subject land is not listed as an Item on the State Heritage Register.

Valuation objection and appeal

  1. The valuation objection and appeal can be summarised as follows:

  1. On 1 July 2021 the Land was valued at $3,990,000.

  2. On 23 March 2022, the Applicant lodged an objection against the issued land value.

  3. On 16 May 2022, the Respondent disallowed the Applicant’s objection.

  4. On 20 October 2022, the Applicant filed a Class 3 Valuation appeal contending that the Land Value was too high.

  5. The matter was provided with case number 2022/00313647.

  1. The Court arranged a conciliation conference under s 34(1) of LEC Act between the parties, which was held on 13 June 2023.

  2. The Applicant, together with his advisors, and Respondent together with their counsel and advisors attended a conciliation conference as per s 34 of the LEC Act (conciliation conference).

  3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.

  4. The Parties agreed to resolve the matter on the basis that the value of the Land as of 1 July 2021 remain the same.

  5. Accordingly, the parties requested the Court make orders in accordance with s 40(1) of the Valuation Act, as follows:

“a. The land value of the property legally described as Lot 1 in Deposited Plan 102650, known as 70-70A Darlinghurst Road, Potts Point NSW 2011 is confirmed as $3,990,000 for the Valuing Year 1 July 2021, in accordance with s 6A of the Valuation of Land Act 1916.

b. Each party is to bear its own costs of the proceedings.

c. The proceedings are otherwise dismissed.”

  1. 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)(a) of the Valuation Act to confirm the land value of the land as of 1 July 2021.

  2. 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 40(1) of the Valuation Act. They further identified:

  1. The proceedings fall within the Land and Environment Court’s Class 3 jurisdiction pursuant to s 19(b) of the LEC Act. The jurisdictional prerequisites in the proceedings are ss 6A and 40(1)(a) of the Valuation Act.

  2. The Applicant is the owner of the freehold estate in the Land (s 29(1)(a) of the Valuation Act).

  3. On 21 January 2022, pursuant to Part 1B and s 29 of the Valuation Act, the Respondent issued a valuation notice which valued the Land for the 2021 valuation year at $3,990,000 (Determination).

  4. On 23 March 2022, pursuant to s 29(3A) of the Valuation Act, the Applicant (through its representative Mr Phil Rennie) lodged an objection against the Determination.

  5. On 16 May 2022, the Respondent disallowed the Applicant’s objection.

  6. On 20 October 2022, the Applicant filed a Class 3 Valuation appeal pursuant to s 37(1) of the Valuation Act, contending that the value the Respondent had assigned to the Land was too high (see s 34(1)(a) of the Valuation Act).

  7. On 2 December 2022, the Court granted leave, pursuant to s 38(2) of the Valuation Act, to allow the Applicant to appeal after the 60-day period prescribed in s 38(1) of the Valuation Act.

  8. For the purposes of the conciliation conference, the parties’ valuation experts (Phil Rennie for the Applicant and Derek Hill for the Respondent) each applied s 6A of the Valuation Act by conducting an analysis of, what they considered to be, comparable sales to determine whether the value the Respondent had assigned to the land was too high.

  9. On an appeal under s 37 of the Valuation Act, the Court may make any one or more of the orders set out in s 40(1) of the Valuation Act in order to dispose of the proceedings. The agreement reached between the parties to resolve the proceedings is one that complies with s 40(1)(a) of the Valuation Act, as it confirms the Determination to which the appeal relates and is thus a decision that the Court has the jurisdiction and power to make.

  10. The agreement reached between the parties in relation to costs is also a decision that the Court has jurisdiction and power to make, as r 3.7 of the Land and Environment Court Rules 2007 applies to appeals under s 37 of the Valuation Act (r 3.7(1)(c)(ii)).

  1. The power to make a costs order is not a function exercisable by a Commissioner pursuant to r 3.10 of the Land and Environment Court Rules 2007. Specifically, the power to make general orders as to costs at r 3.10(1)(a)(iv) and the power to make orders as to costs at r 3.10(1)(b)(v). Accordingly, the parties agreement as to costs is noted without orders being made.

  2. 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) of the LEC Act.

  3. 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.

  4. The Court notes:

  5. (1) Each party agrees to bear its own costs of the proceedings.

Orders:

  1. The Court orders:

  1. The appeal is dismissed.

  2. The land value of the property legally described as Lot 1 in Deposited Plan 102650, known as 70-70A Darlinghurst Road, Potts Point NSW 2011 is confirmed as $3,990,000 for the Valuing Year 1 July 2021, in accordance with s 6A of the Valuation of Land Act 1916.

M Davidson

Acting Commissioner of the Court

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Decision last updated: 30 June 2023

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