Sirius Developments Pty Ltd as trustee for the Sirius Developments Unit Trust v Valuer General of New South Wales

[2024] NSWLEC 1747

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sirius Developments Pty Ltd as trustee for the Sirius Developments Unit Trust v Valuer General of New South Wales [2024] NSWLEC 1747

Hearing dates:

Conciliation Conference on 8 November 2024

Date of orders:

21 November 2024

Decision date:

21 November 2024

Jurisdiction:

Class 3

Before:

Davidson AC

Decision:

Proceedings 2024/158170

The Court orders:

(1) The appeal is upheld.

(2) The value of the whole land legally described as Lots 100 and 101 in Deposited Plan 264104, known as 2-60 Cumberland Street, the Rocks NSW 2000 is amended to $86,310,000 for the valuing year 1 July 2020 pursuant to s 6A of the Valuation of Land Act 1916.

Proceedings 2024/158173

The Court orders:

(1) The appeal is upheld.

(2) The value of the whole land legally described as Lots 100 and 101 in Deposited Plan 264104, known as 2-60 Cumberland Street, the Rocks NSW 2000 is amended to $90,620,000 for the valuing year 1 July 2021 pursuant to s 6A of the Valuation of Land Act 1916.

Proceedings 2024/158215

The Court orders:

(1) The appeal is upheld.

(2) The value of the whole land legally described as Lots 100 and 101 in Deposited Plan 264104, known as 2-60 Cumberland Street, the Rocks NSW 2000 is amended to $95,150,000 for the valuing year 1 July 2022 pursuant to s 6A of the Valuation of Land Act 1916.

Proceedings 2024/296534

The Court orders:

(1) The appeal is upheld.

(2) The value of the whole land legally described as Lots 100 and 101 in Deposited Plan 264104, known as 2-60 Cumberland Street, the Rocks NSW 2000 is amended to $88,400,000 for the valuing year 1 July 2023 pursuant to 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, Pt 4, ss 6A, 29, 35, 35AA, 35B, 35C, 37, 38, 39, 40

State Environmental Planning Policy (Precincts—Eastern Harbour City) 2021

State Environmental Planning Policy (State and Regional Development) 2011

Category:

Principal judgment

Parties:

Sirius Developments Pty Ltd as trustee for the Sirius Developments Unit Trust (Applicant)
Valuer General of New South Wales (Respondent)

Representation:

Counsel:
K Lindeman (Applicant)
L Waterson (Respondent)

Solicitors:
Maddocks Lawyers (Applicant)
Crown Solicitor of NSW (Respondent)

File Number(s):

2024/158170
2024/158173
2024/158215
2024/296534

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicant appeals the Valuer General’s Determinations dated 28 February 2024 pursuant to s 37(1) of the Valuation of Land Act 1916 (Valuation Act) in respect of the valuations of the land value of the property legally described as Lots 100 and 101 in Deposited Plan 264104, known as 2-60 Cumberland Street, The Rocks NSW 2000 (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 28 February 2024 in respect of the objections made by the Applicant to the valuations of the land value of the land as of 1 July 2020, 1 July 2021,1 July 2022 and 1 July 2023.

Planning Background and Site Features

2. Relevant features of the land are as follows:

1. The land is located on the eastern side of Cumberland Street, between George Street to the north and Gloucester Street to the south, within the suburb of The Rocks and the Local Government Area of the City of Sydney.

2. The land is described as Lots 100 and 101 in Deposited Plan 264104. The land has a site area of 3,671.5 square metres with a frontage of 113 metres to Cumberland Road.

3. The subject land is irregular in shape, though may best be described as triangular. The natural topography of the land slopes down in an easterly direction towards the harbour waters though the land has been excavated and terraced to accommodate the existing building improvements upon the land.

4. The subject land is an inside allotment with a primary street frontage for vehicle and pedestrian access at street level to Cumberland Street at its western boundary.

5. To the rear of the land is Gloucester Walk, a pedestrian access that runs along the subject lands rear eastern boundary.

6. For valuing years 1 July 2021 and 1 July 2022, the relevant planning controls were within the State Environmental Planning Policy (State and Regional Development) 2011 which was repealed on 1 March 2022. For valuing years 1 July 2022 and 1 July 2023, the relevant planning controls were within State Environmental Planning Policy (Precincts—Eastern Harbour City) 2021 (EHC Precinct SEPP).

7. A State Significant Development application, SSD 10384, was granted consent on 18 June 2021 for alterations and additions to the then existing building (the Sirius building), including restoration and refurbishment for a mixed-use development with a GFA of 8,419.20 square metres, with a mix or residential, commercial and retail uses.

Valuation objections and appeal

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

1. The land was valued at $105,000,000 for the 1 July 2020 valuing year, $130,000,000 for the 1 July 2021 valuing year, $148,000,000 for the 1 July 2022 valuing year and $155,000,000 for the 1 July 2023 valuing year.

2. On 17 February 2023 and 9 January 2024, pursuant to s 29 of the Valuation Act, the Chief Commissioner of State Revenue issued assessments of land tax, with embedded Notices of Valuation, to the Applicant.

3. On 18 April 2023 and 11 March 2024, the Applicant lodged objections to the Valuer General in respect of the land valuations as at 1 July 2020, 1 July 2021, 1 July 2022 and 1 July 2023.

4. On 28 February 2024, the Valuer-General disallowed the Applicant’s objections in relation to the 2020 valuing year but allowed the Applicant’s objections in relation to the 2021 and 2022 valuation years pursuant to s 35B of the Valuation Act and issued Notices of Determination for each respective valuation year to the Applicant as required by s 35C of the Valuation Act. The land value of the land was determined as $123,500,000 for the 1 July 2021 valuing year and $131,000,000 for the 1 July 2022 valuing year.

5. On 18 June 2024, the Valuer-General allowed the Applicant’s objection in relation to the 2023 valuing year pursuant to s 35B of the Valuation Act and issued a Notice of Determination to the Applicant as required by s 35C of the Valuation Act. The land value of the land for the 1 July 2023 valuing year was determined as $131,000,000.

6. On 29 April 2024 the Applicant filed appeals in Class 3 of the Court’s jurisdiction, under s 37(1) of the Valuation Act in respect of the 2020, 2021 and 2022 valuing years. On 12 August 2024, the Applicant lodged an appeal in Class 3 of the Courts’ jurisdiction, under s 37(1) of the Valuation Act in respect of the 2023 valuing year.

7. The Land Value contended by the Applicant in the appeal for valuing year 1 July 2020 was $62,800,000 in its Class 3 Application and no more than $87,892,893 in its Contentions on Valuation Objection (COVO), and the Land Value contended by the Respondent in the appeal was $171,880,000.

8. The Land Value contended by the Applicant in the appeal for valuing year 1 July 2021 was $77,700,000 in its Class 3 Application and no more than $96,682,182 in its COVO, and the Land Value contended by the Respondent in the appeal was $185,325,000.

9. The Land Value contended by the Applicant in the appeal for valuing year 1 July 2022 was $88,500,000 in its Class 3 Application and no more than $101,076,827 in its COVO, and the Land Value contended by the Respondent in the appeal was $194,290,000.

10. The Land Value contended by the Applicant in the appeal for valuing year 1 July 2023 was an amount less than $131,000,000 in its Class 3 Application and no more than $90,969,144 in its COVO, and the Land Value contended by the Respondent in the appeal was $194,435,000.

11. The matters were provided with case numbers 2024/158170 (1 July 2020), 2024/178173 (1 July 2021) 2024/158215 (1 July 2022) and 2024/296534 (1 July 2023).

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 8 November 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 making a decision in place of the decision to which the appeals relate in relation to 2020, 2021, 2022 and 2023 valuing years 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 2020, 1 July 2021, 1 July 2022 and 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 17 February 2023 and 9 January 2024, the Chief Commissioner of State Revenue issued Land Tax Assessment Notices to the Applicant. The Respondent’s valuation notices pursuant to s 29 of the Valuation Act were contained within those assessments in relation to the 2020, 2021, 2022 and 2023 valuation years.

3. On 18 April 2023 and 11 March 2024, the Applicant lodged objections to the Determinations 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 valuations 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 28 February 2024, the Valuer-General disallowed the Applicant’s objections in relation to the 2020 valuing year but allowed the Applicant’s objections in relation to the 2021 and 2022 valuation years pursuant to s 35B of the Valuation Act and issued Notices of Determination for each respective valuation year to the Applicant as required by s 35C of the Valuation Act.

5. On 18 June 2024, the Valuer-General allowed the Applicant’s objections in relation to the 2023 valuing year pursuant to s 35B and issued a Notice of Determination to the Applicant as required by s 35C of the Valuation Act.

6. On 29 April 2024, the Applicant lodged an appeal pursuant to s 37 of the Valuation Act in respect of the 2020, 2021 and 2022 valuing years in this Court, within the 60-day period imposed by s 38(1) of the Valuation Act. On 12 August 2024, the Applicant lodged an appeal pursuant to s 37 of the Valuation Act in respect of the 2023 valuing year in this Court, within the 60-day period imposed by s 38(1) 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:

Proceedings 2024/158170

13. The Court orders:

1. The appeal is upheld.

2. The value of the whole land legally described as Lots 100 and 101 in Deposited Plan 264104, known as 2-60 Cumberland Street, the Rocks NSW 2000 is amended to $86,310,000 for the valuing year 1 July 2020 pursuant to s 6A of the Valuation of Land Act 1916.

Proceedings 2024/158173

14. The Court orders:

1. The appeal is upheld.

2. The value of the whole land legally described as Lots 100 and 101 in Deposited Plan 264104, known as 2-60 Cumberland Street, the Rocks NSW 2000 is amended to $90,620,000 for the valuing year 1 July 2021 pursuant to s 6A of the Valuation of Land Act 1916.

Proceedings 2024/158215

15. The Court orders:

1. The appeal is upheld.

2. The value of the whole land legally described as Lots 100 and 101 in Deposited Plan 264104, known as 2-60 Cumberland Street, the Rocks NSW 2000 is amended to $95,150,000 for the valuing year 1 July 2022 pursuant to s 6A of the Valuation of Land Act 1916.

Proceedings 2024/296534

16. The Court orders:

1. The appeal is upheld.

2. The value of the whole land legally described as Lots 100 and 101 in Deposited Plan 264104, known as 2-60 Cumberland Street, the Rocks NSW 2000 is amended to $88,400,000 for the valuing year 1 July 2023 pursuant to s 6A of the Valuation of Land Act 1916.

Michael Davidson

Acting Commissioner of the Court

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Decision last updated: 21 November 2024