Scambiaterra v Valuer General - [2003] NSWLEC 339

Land and Environment Court

of New South Wales

CITATION: Scambiaterra v Valuer General [2003] NSWLEC 339

PARTIES:
APPLICANT
J Scambiaterra
RESPONDENT
Valuer General
.

FILE NUMBER(S): 30035 of 2003

CORAM: Moore C

KEY ISSUES: Valuation of Land :-
Permissible use for valuation
.

LEGISLATION CITED: Valuation of Land Act 1916
IDO 25 - City of Campbelltown
.

CASES CITED: Riverbank v The Commonwealth (1974) 48 ALGR 483;
Brisbane City Council v The Valuer General for the State of Queensland (1978) 140 CLR 41;
Maurici v The Chief Commissioner of State Revenue (2003) 77 ALGR 727;
Briggenshaw v Briggenshaw (1938) 60 CLR 366;
.

DATES OF HEARING: 18 and 19 August; 8 and 9 December 2003

EX TEMPORE
JUDGMENT DATE :
12/09/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Hyam, barrister
INSTRUCTED BY
Robert Tricca & Associates
RESPONDENT
Mr C Dimitriadis, barrister
INSTRUCTED BY
Crown Solicitor (NSW)

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

30035 of 2003

Moore C

9 December 2003

J Scambiaterra

Applicant

Valuer General

Respondent

Judgment

1 This is an appeal against the valuation of two parcels of land located in the Campbelltown suburb of Claymore. They are Lot 503 in Deposited Plan 263776 and Lot 100 in Deposited Plan 852796. The two lots have a total area of 1.452 hectares.

2 The site is located on Dobell Drive in Claymore and presently has a small neighbourhood shopping centre erected on it with off-street parking. The present centre has significant tenancy vacancies and is in a somewhat rundown condition. It is partially below road level at its western end and slopes away from Dobell Drive.

3 The relevant base date for the present valuation appeal is 1 July 2000 at which date the Valuer General has valued the two allotments with a combined valuation of $755,000.

4 The present appeal is an appeal pursuant to s37(1) of the Valuation of Land Act 1916 ("the Act") which provides that an owner of land may appeal to this Court the owner is dissatisfied with the Valuer General’s determination of that owner’s objection to a valuation.

5 The Court has a range of powers pursuant to s40(1) of the Act when dealing with this appeal. The Court may do a number of things, which include confirming or revoking the decision and making a decision in place of the decision to which the appeal relates. There is no submission by either party that I should, if I consider the valuation should be varied, exercise my power to remit to the Valuer General for determination in accordance with these reasons.

6 I am therefore confining myself to whether I should confirm or revoke the relevant value and if I should revoke it, what I should substitute in its place.

7 I note in this regard that the respondent’s valuation in evidence posit a valuation somewhat higher than that which is the subject of the appeal, namely Mr McDonald’s valuation at $840,000. I also note that the applicant…

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.

Keep reading for free

Create a free CaseChat account to read Scambiaterra v Valuer General and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWLEC 339
Decision Date: 12/09/2003

CaseChat Overview and Summary

The case of Scambiaterra v Valuer General involved an appeal by Scambiaterra against the valuation of two parcels of land located in Claymore, a suburb of Campbelltown, New South Wales. The appeal was heard in the Land and Environment Court of New South Wales, presided over by Commissioner Tim Moore. The central issue in the appeal was the valuation of the land, specifically the permissible use for valuation in accordance with the Valuation of Land Act 1916. The site in question was zoned as a 'Local Centre' under the Interim Development Order (IDO) 25, City of Campbelltown, which necessitated a careful consideration of the highest and best use of the land in compliance with zoning regulations.

The court examined expert evidence from two valuers: Mr. McDonald, employed by the respondent, and Mr. Neskovski, retained by the applicant. Both experts initially considered either a mixed commercial and residential development or a purely residential development as the highest and best use of the site. However, following a query by the court about the appropriateness of these considerations in light of the site's zoning, the proceedings were adjourned to re-evaluate the permissible uses in line with the zoning regulations. Campbelltown City Council's clarification that any residential use would need to be incidental or subsidiary to the local centre use prompted a recalibration of the experts' valuations.

Mr. McDonald proposed a valuation based on a subdivision of the site into three uses: a service station, a commercial use, and a community purpose, resulting in a total valuation of $840,000. Mr. Neskovski, on the other hand, proposed a more detailed subdivision into four uses: a petrol station/convenience store, a religious worship site, a local shopping centre, and a childcare centre, leading to a proposed valuation of approximately $500,000. The court preferred Mr. McDonald's approach for its simplicity and cost-effectiveness, though it conducted a detailed analysis of Mr. Neskovski's methodology to ensure fairness. After adjustments to Mr. Neskovski's calculations for factors such as easements, selling agents' commission, and profit and risk margin, the court found that a valuation of around $755,000 could be reasonably reached, aligning with the Valuer General's original valuation. The court concluded that the applicant had not met the onus of proof to vary the valuation, dismissing the appeal and confirming the original valuation of $755,000.

Orders