Tattersall v Valuer-General

[2003] NSWLEC 238

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Land and Environment Court

of New South Wales

CITATION:

Tattersall and Anor v Valuer-General [2003] NSWLEC 238

PARTIES:

APPLICANTS
Martin H.N. Tattersall and Susan F. Tattersall

RESPONDENT
Valuer-General

FILE NUMBER(S):

30190 of 2003

CORAM:

Cowdroy J

KEY ISSUES:

Question of Law :- valuation of land - lot forming curtilage of dwelling erected on adjoining lot - dwelling classified as "heritage restricted" within s 14G of Valuation of Land Act 1916 - whether lot should be classified as "heritage restricted".

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 79C
Heritage Act 1977, s 130(1)
Hunters Hill Local Environmental Plan No. 1 1982
Land Tax Management Act 1956, s 60
Valuation of Land Act 1916, s 14G, s 42

CASES CITED:

DATES OF HEARING:

09/10/2003

DATE OF JUDGMENT:

10/31/2003

LEGAL REPRESENTATIVES:

APPLICANTS
Mr I. Hemmings (Barrister)

SOLICITORS
Brown & Partners

RESPONDENT
Mr C. Norton (Barrister)

SOLICITORS
Crown Solicitor

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

30190 of 2003

Cowdroy J

31 October 2003

Martin H.N. Tattersall and Susan F. Tattersall

Applicants
v

Valuer-General

Respondent

Judgment

The question of law

1 The Valuer-General states a case on a question of law for the opinion of the Court pursuant to s 42 of the Valuation of Land Act 1916 (“the Act”). The question is as follows:-

Whether under s 14G of the Valuation Act 1916 [sic] Lot 11 in DP 882776, 2 View Street, Woolwich is “heritage restricted”.

The facts

2 The applicants are the owners of lot 11 in deposited plan 882776 (“lot 11”) and lot 12 in deposited plan 882776 (“lot 12”), such premises together being known as 2 View Street Woolwich. A substantial two storey dwelling (“the dwelling”) is erected mainly within the boundaries of lot 12 and named “Vineta”. A two storey verandah described as a polygonal gazebo which forms part of the dwelling protrudes onto lot 11 by approximately 70cm. Lot 11 contains gardens and private open outdoor space associated with the dwelling. There is no fence dividing lot 11 and lot 12. A swimming pool has been constructed which straddles the boundary between lot 11 and lot 12.

3 Lot 11 and lot 12 are affected by the provisions of the Hunters Hill Local Environmental Plan No. 1 1982 (“the LEP”), each lot being located within “Zone No. 2(a2) (residential “A2”)” of the LEP. In such zone land may be developed for the following purposes with the consent of Hunters Hill Council (“the council”):-

Bed and breakfast establishments; child care centres; community centres; drainage; dwelling-house; educational establishments; home industries; integrated housing; open space; places of public worship; professional consulting rooms; roads; utility installations (other than gas holders or generating works).

4 In July 1981 an order was made under s 130(1) of the Heritage Act 1977 to conserve the dwelling and prevent its demolition. Sections 129A-135 of the Heritage Act 1977 were repealed in 1998 and accordingly the order is no longer in force. The LEP now makes provision its preservation. Clause 6 of the LEP defines “items of environmental heritage” as meaning “a building, work, relic, tree or place described in Schedule 6”. “Vineta” is listed in Sch 6 of the LEP as item 358. The description is:-

358 View St, 2 Vineta

5 Clause 19(1) of the LEP restricts work in respect of an item of environmental heritage as follows:-

19 Items of the environmental heritage

(1) A person shall not, in respect of a building, work, relic, tree or place that is an item of the environmental heritage:
(a) demolish or alter the building or work,
(b) damage or move the relic,
(c) excavate for the purpose of exposing the relic,
(d) damage or despoil the place or tree, or
(e) erect a building on or subdivide land on which the building, work or relic is situated or that comprises that place,

except with the consent of the council.

Clause 19(3) of the LEP restricts development on land in the vicinity of an item of environmental heritage as follows:-

19(3) The council shall not grant consent to an application to carry out development on land in the vicinity of an item of the environmental heritage unless it has made an assessment of the effect which the carrying out of that development will have on the heritage significance of the item and its setting.

6 Section 14G of the Act makes provision for valuation of land subject to heritage restrictions under an environmental planning instrument. Section 14G of the Act relevantly provides:-

14G Valuation subject to heritage restrictions under EPI

(1) Land that is heritage restricted on the date by reference to which its land value is to be determined is to have its land value determined on the basis of the following assumptions:
(a) that the land may be used only for the purpose, if any, for which it was used when the value is determined,
(b) that all improvements on that land when the value is determined may be continued and maintained in order that the use of that land as referred to in paragraph (a) may be continued,
(c) that no improvements, other than those referred to in paragraph (b), may be made to or on that land.
(2) Land is heritage restricted as at a particular date if the Valuer-General has determined that it would be reasonable to make the assumptions referred to in subsection (1) in respect of the land as at that date because of any provision of a planning instrument concerned with the heritage significance or heritage value of the land or any building, work or other thing on or in the land.

7 The Valuer-General accepts that lot 12 is “heritage restricted” for the purpose of s 14G by virtue of the dwelling being an item of environmental heritage on such land. However the Valuer-General disputes the applicants’ claim that lot 11 should also be classified as “heritage restricted”. It is agreed between the parties that land tax for the land tax years of 1998, 1999 and 2000 was levied on lot 11 and was assessed pursuant to s 60 of the Land Tax Management Act 1956 (“the Land Tax Management Act”) on the basis that lot 11 was “heritage restricted”.

Applicants’ submissions

8 Section 14G(2) of the Act requires consideration of “any provision of a planning instrument concerned with the heritage significance or heritage value of the land.” The applicants submit that cl 19 of the LEP is relevant. Clause 19(1)(e) of the LEP, for example, provides that land cannot be subdivided if an item of environmental heritage is situated upon it except with consent of the council. Since the dwelling is partially located on lot 11, the applicants submit that lot 11 could not be subdivided nor could a building be erected thereon except with the consent of the council as required by cl 19(1)(e) of the LEP. Even if the dwelling were not partially located on lot 11, the provisions of cl 19(3) of the LEP would apply to any application to develop lot 11. Accordingly provisions of a planning instrument operate in respect of the land which permit the Valuer-General to determine the assumptions in s 14G(1) of the Act.

9 The applicants submit it would be reasonable for the assumptions in s 14G(1) of the Act to be made. In support of their submissions, the applicants rely on evidence of the history of the dwelling. The report of Mr Robert Allan Moore, architect and conservation consultant, refers to the heritage value of the dwelling, and of the curtilage. Mr Moore stated at p 4:-

The verandahs of the house have been specifically designed to take advantage of the fine prospects to the north and particularly the northwest of the house, looking toward Longueville and the reaches of the Lane Cove River. This is clearly evident in the design and siting of the corner tower-cum-gazebo, an elaborate carpenter’s piece of detailed joinery and metalwork.

The applicants submit that one of the reasons for the classification of the dwelling as an item of heritage significance is due to the gazebo, which extends onto lot 11.

10 With respect to lot 11 Mr Moore said at p 4 of his report:-

In my opinion, it is clear that Lot 11 has been assumed into the use pattern of the land as the site for “Vineta” and any thought of its sale for independent development departed long ago. It is also apparent that with recognition of the heritage values of “Vineta” and its significance as part of Hunter’s Hill, the prospect of development upon Lot 11 would be viewed by Council with considerable concern.

11 Mr Moore concluded at p 6 of his report:-

In my opinion, it would be entirely appropriate and reasonable for the Valuer-General to conclude that the heritage listing of both Lots 11 and 12 restricts the potential for any development upon Lot 11, and sets the circumstances for the establishment of a heritage-restricted valuation for both the component lots of the property.

12 Mr Gregory Patch, the heritage advisor to the council wrote to the applicants by letter dated 19 February 2003 stating, inter alia:-

Given that the allotment has been associated with a heritage item for the larger part of its history, and that development on the subject allotment would give rise to adverse visual and heritage impacts, it is well nigh totally improbable that Council would support a variation to its minimum allotment requirements in this case. That is, the allotment would be severely constrained in terms of potential development due to both its size and relationship with “Vinetta” [sic].

13 Mr Moore commented upon Mr Patch’s opinion at p 5 of his report as follows:-

I would endorse Mr. Patch’s view that the development potential of Lot 11 is severely constrained. In fact I would suggest that the Lot is only capable of use for development adjunct to that upon Lot 12, ie., “Vineta”. Development of an independent accommodation unit upon the Lot, even a dual occupancy dwelling, would so adversely impact the amenity that “Vineta” currently enjoys that it is hard to see such development being advantageous, even if it were acceptable in heritage terms (which I cannot see it being). Indeed, on the basis of my experience with the adaptation and renovation of such homes, it would be my opinion that the future of the property will rely heavily upon the capacity of Lot 11 to participate in the improvement and use of the house and its setting.

14 Relying upon such evidence the applicants submit that the requirements of s 14G(1) of the Act are satisfied and that lot 11 should be classified as being “heritage restricted”. The applicants also claim that there has been no change in heritage significance of the dwelling nor alteration to lot 11 which would lead to a different assessment for land tax purposes from previous years.

15 The applicants alternatively submit that the listing of “Vineta” in Sch 6 of the LEP was intended to extend not only to lot 12, but also to lot 11. Both lots are collectively known as “2 View Street”. There is no separate mailing address for lot 11 and no physical separation of the two lots.

Valuer-General’s submissions

16 The Valuer-General submits that the critical factors for determination relate to the satisfaction of s 14G(1)(a), s 14G(1)(b) and s 14G(1)(c) of the Act. The Valuer-General submits that the assumptions in the subsections of s 14G(1) of the Act are conjunctive and that the value of land is to be determined having regard to the application of each assumption. The Valuer-General must decide whether it would be reasonable to make the assumptions in s 14G(1) of the Act based upon the provisions of the relevant planning instruments relating to the heritage significance or value of the land. The Valuer-General acknowledges that the LEP is the relevant planning instrument for this purpose.

17 In relation to s 14G(1)(a) of the Act, the Valuer-General submits that lot 11 may be used for a range of purposes permitted in the “Zone No. 2(a2) (residential “A2”)”. Accordingly no assumption could reasonably be made that the requirement of s 14G(1)(a) of the Act is satisfied. The Valuer-General concedes that it would be reasonable to make the assumption in s 14G(1)(b) of the Act. However the Valuer-General submits that the assumption in s 14G(1)(c) of the Act cannot be made. The Valuer-General says the term “improvements” is broad and refers not only to improvements such as the erection of a dwelling house but also improvements made to the land. The Act does not contain a definition of “improvements” but only of “land improvements” which is irrelevant. The Valuer-General submits that “improvements” may include landscaping of the garden and an expansion of the existing swimming pool.

18 The Valuer-General submits that it is not reasonable to conclude that s 14G(1)(a) and s 14G(1)(c) of the Act are satisfied. Accordingly the Valuer-General submits that lot 11 is not “heritage restricted”.

Applicants’ submissions in reply

19 In summary the applicants submit that the Valuer-General has interpreted s 14G(1) of the Act upon the basis that the requirements of s 14G(1)(a) and of s 14G(1)(c) of the Act are only satisfied if the use, or improvements respectively referred to therein, are prohibited. The applicants submit that the Valuer-General’s interpretation is erroneous since the test in s 14G(2) of the Act is whether “it would be reasonable to make the assumptions referred to in subsection (1) in respect of the land”.

Valuer-General’s submission in reply

20 The Valuer-General rejects the applicants’ submission in reply and emphasises that the assumptions referred to in s 14G(2) of the Act are to be made in reference to “any provision of a planning instrument”. The Valuer-General submits that there is no provision of the LEP which operates to prevent an application being made to develop lot 11.

Findings

21 The reference in Sch 6 of the LEP to the item of environmental heritage is “Vineta”, which the Court infers is a reference to the dwelling. Since the land is not identified by lot numbers, the Court cannot assume that lot 11 is included as an item of environmental heritage under the LEP.

22 The heritage value of the dwelling, and of its curtilage, have been firmly established. It is referred to in heritage publications, one being “The Australian Verandah” by Douglass Baglin and Peter Moffitt in which the verandahs, including the polygonal two-level gazebo are prominently illustrated. “Vineta” is also referred to in a publication of The National Trust of Australia NSW entitled “Old Buildings of Hunter’s Hill”. The description of the dwelling is there described as follows:-

VINETTA [sic]
2 View Street
This house was built soon after 1890. Its site, Lots 11 and 12, was part of
the Valentia Estate.

23 The council had also recognised the historical value of the dwelling, and of its curtilage. A report to the council considered at a meeting of the Conservation Advisory Panel on Monday 4 February 1991 describes the dwelling and garden as follows:-

The significance of ‘Vineta’ to the heritage of Hunters Hill lies in:
It is of historic significance because of the evidence it provides today of its gradual evolution from a single storey four room brick cottage on one lot of land to a large two storey late Victorian villa with a decorative verandah and a large complementary garden.
It is of aesthetic and historic significance because of the example it provides of the typical 19thc pattern of waterfront development in Hunters Hill: a large two storey 19thc villa set back from the river but visually and physically linked to it by lawns, trees and shrubs through which the river was enjoyed, and the house glimpsed and admired from the water. This 19thc riverscape has disappeared from much of Hunters Hill through continuous subdivision and the 20thc desire for the uninterrupted view.
The property has aesthetic significance also because of the mature boundary planting to the south and west which forms a distinctive natural element in Angelo Road, beside the public reserve.
The two storey gazebo on the north west of the verandah, glimpsed through trees, is a local landmark in the street and from the Lane Cove River.
The house is of group significance as one of seven 1880s houses built on the pre 1882 subdivision of Samuel Onion’s original 19 acre grant of 1832.

It is apparent that the lawns and vegetation surrounding the dwelling form an important component of its heritage value, and that lot 11 lies generally to the south west, west and north west of the dwelling.

24 Whilst the Valuer-General submits that the provisions of cl 19(1) of the LEP has no application to lot 11, development of lot 11 could involve demolition or alteration of the gazebo since it is partially erected on lot 11. Accordingly, the provisions of cl 19(1) of the LEP would apply. Additionally, the provisions of cl 19(3) of the LEP would operate in respect of any application for the use of lot 11 other than as a garden or curtilage for the dwelling.

25 The Valuer-General has submitted that the zoning table authorises the council to consider a development on lot 11 in “Zone No. 2(a2) (residential “A2”)”. However the council would be required to make an assessment pursuant to s 79C of the Environmental Planning and Assessment Act 1979 of the effect of any development in respect of heritage issues in addition to an assessment as required by cl 19(3) of the LEP.

26 The Valuer-General submits that there is a category of improvements which would not require permission such as simple garden structures, landscaping or a rockery. The Court rejects such matters as being ones which constitute “improvements” for the purposes of s 14G(1)(c). They are to be regarded as improvements de minimis.

27 The Valuer-General has also argued that even the use of the dwelling could be altered with permission. It suggests that it could be developed into a bed and breakfast facility or childcare centre without physical alteration to its heritage value. However, since the Valuer-General has already recognised that lot 12 is “heritage restricted”, the Court rejects such submission.

28 The Court is satisfied that the council would give full effect to the provisions of cl 19(1) and cl 19(3) of the LEP if any application were made to it for the development of lot 11. The council has clearly recognised that the dwelling and garden on lot 11 are indivisible, and has treated both lot 11 and lot 12 as comprising one property for heritage purposes. Even if any development did not require alteration to the gazebo, a change of use would invoke cl 19(3) of the LEP.

29 In view of the heritage classification of the dwelling and the significance of the curtilage comprising lot 11, the Court is satisfied that unless the development was insignificant, the council would refuse such development. The prospect of a consent for the development of lot 11, either by way of change of use, or erection of improvements, is at present so remote as to be negligible.

30 Pursuant to s 14G(2) of the Act it is only necessary for the Court to be satisfied that the assumptions contained in s 14G(1) of the Act can reasonably be made. As a consequence, the Court finds that the Valuer-General could reasonably make the assumptions referred to in s 14G(1)(a), s 14G(1)(b) and s 14G(1)(c) of the Act. It follows that lot 11 is “heritage restricted” within the meaning of that definition contained in s 14G(2) of the Act.

31 The Court has reached these conclusions irrespective of the agreed fact that for 1998, 1999 and 2000 lot 11 was assessed for land tax as being “heritage restricted” under the now repealed s 60 of the Land Tax Management Act. The Court observes that the considerations under s 60(1) of the Land Tax Management Act were substantially the same as the matters raised in s 14G(1) of the Act, although this fact was not principally relied upon by the applicants.

Answer to question of law

32 For the above reasons the Court answers the question of law in the affirmative.

Orders

33 The Court orders:-

1. That costs be reserved;

2. The exhibits be returned.