Souter v Valuer-General - [2008] NSWLEC 20

Land and Environment Court

of New South Wales

CITATION: Souter v Valuer-General [2008] NSWLEC 20

PARTIES:
APPLICANT
John Souter
RESPONDENT
Valuer-General

FILE NUMBER(S): 30227 of 2007

CORAM: Sheehan AC

KEY ISSUES: Development Application - Valuation of Land :- unimproved land value

LEGISLATION CITED: Valuation of Land Act 1916
Shoalhaven Local Environmental Plan 1985

CASES CITED: Souter v Valuer General [2006] NSWLEC 588
Pyramid Pacific Pty Limited v Ku-ring-gai Council NSWLEC 522 [2006]

DATES OF HEARING: 31/01/2008

DATE OF JUDGMENT:
8 February 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr J. Souter, litigant in person
RESPONDENT
Ms I. Ryan, barrister
Instructed by Mr B. Row
of Crown Solicitors Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheehan AC
8 February 2008

30227 of 2007: Souter, John v Valuer-General
JUDGMENT

1 COMMISSIONER: This Appeal is against the unimproved land value assessed by the Valuer General at Base Date 1 July 2005 for 5 Silver Strand Circle, Hyams Beach.

The site

2 The site is:

5 Silver Strand Circle – Lot 22 DP 847268 - the site has a frontage of 9.41m to Silver Strand Circle and other boundaries of 10.485m, 33.5m and 33.51m giving a total site area of 334sq m.

3 The site is located approximately 200m west of the southern section of the beach front of Hyams Beach. The undulating topography of the Hyams Beach area provides for a largely consistent rise in elevation from the beach front westerly to the town boundary with the adjoining national park. The site contains a semi detached dwelling over two levels, with a covered car space beneath a front raised deck, and appears to be used for short term holiday lettings. No significant trees appear to be located on the site, which rises significantly from the street frontage to the rear.

Relevant planning controls

4 The site is zoned 2(a1) under Shoalhaven Local Environmental Plan 1985. The objectives of the Zone are stated as follows:

… to provide an environment primarily for detached housing and to ensure that the range of other development permitted in a residential area is compatible with the residential environment.

5 Development that requires consent includes the following:

Bed and breakfast accommodation, childcare centres, childcare welfare centres, community facilities, drainage, dual occupancy development, dwelling houses, educational establishment, general stores, home activities, hospitals, open space, places of public worship, professional consulting rooms, roads, utility installations (other than gas holders or generating works)

The land values

6 The land value of the site, as assessed by the Valuer General for rating purposes as at the Base Date 1 July 2005, was $504,000. After appeal to the Valuer General, the land value as at the Base Date 1 July 2005 was reduced to $400,000 as set out in letter of 15 December 2006 from the Valuer General to the Applicant.

7 The land value of the site as now assessed for the Valuer General by Mr Peter Dempsey, a valuer registered under the Valuers Act 2003, in accordance with s.6A of…

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: [2008] NSWLEC 20
Decision Date: 8 February 2008

CaseChat Overview and Summary

John Souter, the applicant, appealed the unimproved land value assessed by the Valuer General for 5 Silver Strand Circle, Hyams Beach, at Base Date 1 July 2005. The Land and Environment Court of New South Wales heard the appeal. The primary legal issue was whether the applicant had proved that the land value should be reduced from the $360,000 assessed by the Valuer General to $310,000. The court examined the evidence provided by the applicant and the Valuer General, including the sale of a 50% share of an adjoining property, to determine if the applicant had discharged the onus of proof under the Valuation of Land Act 1916.

The court found that the applicant had not met the onus of proof, as required by clause 40(2) of the Act. The court acknowledged the valuer's approach to adjusting land values for varying levels of development, location, and inherent site qualities. However, the court was not satisfied with the applicant's assumption of the level of caution necessary in the valuation process, particularly in relying on the sale of the adjoining property. The court also questioned the comparability of the sale of the 50% interest in the adjoining property, given that it was not put to the open market.

The court dismissed the appeal and upheld the land value of $360,000 assessed by the Valuer General. The exhibits were returned to the parties.

Orders