Trust Company Limited ATF Opera House Car Park Infrastructure Trust No 1 v The Valuer-General (No 2)

[2011] NSWLEC 34

Land and Environment Court

New South Wales

Medium Neutral Citation:	Trust Company Limited ATF Opera House Car Park Infrastructure Trust No 1 v The Valuer-General (No 2) [2011] NSWLEC 34
Hearing dates:	9 March 2011, 10 March 2011
Decision date:	11 March 2011
Before:	Pain J
Decision:	Finding on jurisdictional matter
Catchwords:	Procedure: whether court has jurisdiction to determine that valuations issued beyond power in class 3 appeal
Legislation Cited:	Civil Procedure Act 2005 s 149B(1) Land and Environment Court Act 1979 s 16(1A)s 19, s 20, s 39 Mine Subsidence Compensation Act 1961 s 12B Valuation of Land Act 1916 Div 6 s 6A, s 7B s 14A, s 14CC, s 29, s 34, s 35B, s 39, s 37, s 39, s 40
Cases Cited:	Australian Gas Light Company [2006] NSWLEC 494; (2006) 147 LGERA 433 Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; (2008) 73 NSWLR 196 Calvin v Carr [1979] 1 NSWLR 1 Mine Subsidence Board v Australian Gas Light Co [2007] NSWCA 100; (2007) 152 LGERA 73 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 Perpetual Trustees (Australia) Limited v Valuer-General [1999] NSWLEC 93; (1999) 102 LGERA 324 Trust Company Limited ATF Opera House Car Park Infrastructure Trust No 1 v the Valuer-General [2010] NSWLEC 161
Category:	Separate question
Parties:	Trust Company Limited ATF Opera House Car Park Infrastructure Trust No 1 (Applicant) The Valuer-General (Respondent)
Representation:	Counsel: Mr J Maston (Applicant) Mr J Robson SC with Miss M Carpenter (Respondent) Solicitors: Addisons (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	30932, 30934, 30935 and 30936 of 2008

Judgment

1. These proceedings concern four appeals under the Valuation of Land Act 1916 (the VL Act) against valuations of land made in 2008 (reascertainments) in relation to four base date years 2004 - 2007. The Court determined in Trust Company Limited ATF Opera House Car Park Infrastructure Trust No 1 v the Valuer-General [ 2010] NSWLEC 161 that the Applicant's property the Opera House car park at Bennelong Point Sydney should be valued under s 6A of the VL Act rather than s 7B .

1. The parties have returned to the Court for further determination of issues relevant to valuation of land under s 6A. In addition, and for the first time in these proceedings, the Applicant raises whether the Court has jurisdiction to determine whether the reascertainment of land value, out of which the proceedings arise, was not authorised by s 14A(6) of the VL Act. The Valuer-General submits that the Court lacks jurisdiction to determine that issue in these Class 3 appeals. Section 14A(6) states:

The power to ascertain a land value includes the power to reascertain that land value, and references in this Part to the ascertainment of land value are taken to include references to the reascertainment of land value.

1. The Court was referred to s 19 ( Class 3 - land tenure, valuation, rating and compensation matters), s 20 ( Class 4 - environmental planning and protection and development contract civil enforcement) and s 39(2) (Powers of Court on appeals) of the Land and Environment Court Act 1979 (the Court Act) and Div 6 s 14CC (Register of Land Values) and Pt 3 Notices and Objections s 29 (Notice of valuations to owner), s 34 (Ground of objection), s 35B (Determination of objection) and Pt 4 (Appeals to Land and Environment Court) s 37(Right of appeal), s 39 (Grounds of appeal) and s 40 (Powers of the Land and Environment Court on appeal) of the VL Act.

Applicant's submissions

1. The Applicant argues that the four valuations appealed against under s 37(1) of the VL Act were issued without power to do so. This is an issue that can be dealt with in the course of the appeal in Class 3 because it is one of the issues which the Court has to determine in relation to the Applicant's objection under s 34(1)(a) that the valuations are too high. That appeal will require the Court to consider questions such as whether there is already a conclusive determination of land value for the base date years as found in the Register of Land Values referred to in s 14CC(2)(a) of the VL Act and whether the Court can correct land values determined erroneously by virtue of its powers and functions under s 39(2) of the Court Act. The question of law arises of whether there can be two land values for one base year.

1. The Applicant submits that it has exercised properly an appeal right under s 37(1) of the VL Act and commenced these proceedings in this Court as provided for under s 19(b) of the Court Act. As part of determining that appeal the legal status of the valuations appealed against arises and can be considered as an issue arising in the proceedings, an argument supported by National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 per Gleeson CJ (Meagher JA agreeing) at 582:

The Land and Environment Court, of course, in resolving a claim that is properly brought within its jurisdiction, has the power and the duty to decide all questions of fact or law that need to be decided in order to deal with that claim.

1. Alternatively, the Court has jurisdiction under s 16(1A) as the issue is ancillary to a matter otherwise within jurisdiction. The subject matter is ancillary to the objection appeal applying the reasoning in Australian Gas Light Company [2006] NSWLEC 494; (2006) 147 LGERA 433 of Biscoe J by analogy to this case. Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; (2008) 73 NSWLR 196 also supports this approach. The Court of Appeal considered whether a matter was a necessary or essential step which had to be resolved to determine the issue within jurisdiction, per Spigelman CJ (Allsop P and Handley AJA agreeing) at [35] - [37]. This approach supports the conclusion that if the matter arises in the course of proceedings and must be ancillary and subordinate to the appeal within jurisdiction.

1. Once a party brings the legal significance of the state of the land register to the Court's attention the impacts of that issue in the appeals must be considered.

1. Support can also be found in Perpetual Trustees (Australia) Limited v Valuer-General [1999] NSWLEC 93; (1999) 102 LGERA 324 per Lloyd J where his Honour dealt with a preliminary question of law in relation to whether there was a legal basis for a separate valuation. He held there was not and found the valuation was void, upholding the appeal.

1. Calvin v Carr [1979] 1 NSWLR 1 and Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 confirm that until a decision is declared void it continues to be in force. Here the appeal is properly constituted and the valuations stand until revoked by the Court, suggesting this issue can be raised in this Class 3 appeal.

1. The Court has jurisdiction in these appeals to decide whether the Valuer-General's disallowance of the Applicant's objections to the Valuer-General's determination of land value should be revoked on the basis that the valuations under appeal were unauthorised because they were not reascertainments within s 14A(6) of the VL Act. The decision of the Valuer-General under s 14A(6) is a discretionary exercise of power to revalue land and the exercise of that discretion is before the Court in this appeal. The issue is ancillary to matters otherwise in jurisdiction.

1. Further the power of the Court in s 40(1)(a) of the VL Act, to confirm or revoke the decision to which the appeals relate, means the Court can consider the Valuer-General's decision to refuse an objection lodged under s 29(3A) and determined under s 35B by the Valuer-General. The issue of whether the Valuer-General has power to reascertain land values was raised at numbered point 2 in a letter attached to the Class 3 application in matter no 30936 of 2008 from the Applicant's valuer dated 28 March 2008 notifying the objection under s 29 of the VL Act so that matter is before the Court in this appeal.

Respondent's submissions

1. The Respondent argues that whether the reascertainments of land value the subject of the four appeals are beyond power cannot be raised in these Class 3 valuation proceedings as the Court lacks jurisdiction to do so. The appropriate court to determine this issue is the Supreme Court of New South Wales Common Law Division - Administrative Law. The scheme of the VL Act in s 29(3A), s 34, s 35B and s 37 provides for appeals by a person following the lodging of objections with the Valuer-General. Appeals under s 37(1) are within Class 3 of the Court's jurisdiction with specific practice and procedures established for merit appeals in that class. Section 39(2) of the Court Act is not a basis for conferring power on the Court acting in these Class 3 proceedings as judicial valuer to undertake judicial review proceedings. The Court can exercise the powers that the Valuer-General exercised but the Class 3 appeal does not provide a judicial review mechanism. If the Applicant's argument is correct there can be no appeal under s 37(1) because the relevant valuations the subject of the appeal have no effect. That is a question which should be determined in judicial review proceedings.

1. Section 16(1A) cannot extend the Court's jurisdiction because the question whether the Valuer-General has acted without power is not ancillary to a matter that falls within jurisdiction under any other provision of the Court Act or any other Act because the VL Act limits the powers of the Court on appeal. There can be no appeal against a decision that was void in the first place.

1. The land value reascertained by the Valuer-General is the foundation for the objection and the appeal and its legal validity is the sine qua non of the proceedings. If the Valuer-General's determination be a nullity, then the objection, the determination by the Valuer-General of the objection and the appeal against the Valuer-General's determination, are also without foundation and equally ineffective. There is no power for this Court to determine if the reascertainments were unauthorised or beyond power.

1. Stables Perisher cannot provide any assistance as the passage relied on refers to a claim that is properly brought within jurisdiction and the issue raised here is not within jurisdiction.

1. The Court does not give declaratory relief in Class 3 appeals and relief of this type should not be obtained by the back door effectively inter partes in these proceedings.

1. No assistance can be gained from the decision in Australian Gas Light Company at first instance. On appeal in Mine Subsidence Board v Australian Gas Light Co [ 2007] NSWCA 100; (2007) 152 LGERA 73 Tobias JA considered at [94(i) - (j)] the distinction between Class 3 appeals as provided for in the Mine Subsidence Compensation Act 1961 and judicial review proceedings. The same distinction between the two kinds of proceedings which his Honour stresses applies here to defeat the Applicant's argument.

1. Calvin v Carr and Bhardwaj are not relevant here. The powers of the Court on appeal under s 40(1)(a) refer to s 37(1) of the VL Act which provides for a right of appeal for a person dissatisfied with the Valuer-General's determination. That is the decision the subject of the appeal in this Court not the earlier decision of the Valuer-General refusing an objection.

Finding

1. The scope of the Court's jurisdiction in Class 3 appeals as raised by the parties' arguments does not appear to have arisen previously. The Applicant accepts that the Supreme Court has supervisory jurisdiction to determine this issue in judicial review proceedings. The Applicant also accepts that there is no ability for the Court to review the Valuer-General's decision to issue the valuations the subject of the Class 3 appeals in Class 4 judicial review proceedings as the VL Act is not referred to in s 20(3) of the Court Act. The Applicant submits that there is a valid appeal on foot within which this issue arises for determination in the course of resolving the issues in the appeal and does not consider the issue raised is a matter that can only be raised in judicial review proceedings.

1. The important distinction between Class 3 appeals and judicial review proceedings was identified in Australian Gas Light Company where in a Class 3 appeal in relation to s 12B of the Mine Subsidence Compensation Act Biscoe J held at [7]:

The jurisdictional issue is not arid. For the purposes of hearing and disposing of a s 12B appeal, this Court, if it has jurisdiction, has all the functions and discretions which the Board had: s 39(2) of the Court Act . Hence, a s 12B appeal is a merits appeal. If this Court does not have jurisdiction, then jurisdiction rests with the Supreme Court but it has only a judicial review jurisdiction. Relief by way of judicial review is ordinarily discretionary and is not, as such, concerned with the factual merits but with observance of legality: Griffith University v Tang (2005) 221 CLR 99 at 153 [155].

1. It was also identified on appeal in Mine Subsidence Board per Tobias JA (Handley AJA concurring, Hodgson JA dissenting) at [94] (i) - (k):

(i) Accordingly, I see no justifiable basis upon which s 12B(b) should be construed to extend an appeal on the merits of the refusal of the Board to be satisfied that any departure from or contravention of the relevant conditions is such that it need not be rectified as distinct from leaving any relevant relief to the more limited grounds of challenge permitted by judicial review proceedings. The same comments apply, in my opinion, to that part of s 12(1A) which I have emphasised in [30] above. In that provision the Board has a discretion and any challenge to the exercise of that discretion should be confined to judicial review proceedings.

(j) If AGL's submissions were accepted then it would follow that every decision of the Board, whether direct or indirect, which in some way could be related to or linked to a claim for compensation including any decision required to be made by the Board antecedent to a determination of such a claim on its merits, would be subject to a merit appeal under s 12B(b). In my view it is not possible to so construe that provision. Limb (b) is concerned with a decision of the Board as to whether there should be any payment of any amount from the Fund. It is a reference to a determination of that issue by the Board on its merits as is made plain by s 12(2)(b).

(k) Had the legislature wished to provide an uncontained right of appeal against every decision of the Board which touched or concerned a claim for compensation, it could easily have done so in simple language. Consistent with the limited appeal rights which existed prior to 1989, the legislature has, in my view, been at pains to maintain limits to appeals to the LEC against a decision of the Board to issues of causation and quantum relating to a claim for compensation under ss 12 and 12A. There is nothing in the Second Reading Speech or in that part of that speech upon which AGL relies which would justify any different conclusion. AGL's construction of s 12B(b) seeks to give the unambiguous wording of the provision a reach which the words, in their context, simply cannot bear.

1. Tobias JA was considering the scheme for Class 3 appeals under a different Act but his statements underline the importance of distinguishing between those matters which can be properly brought within a Class 3 appeal with matters that should be the subject of judicial review proceedings. Each statutory scheme which provides for Class 3 appeals must be considered individually. While there is no general description of Class 3 appeals pursuant to s 37(1) of the VL Act either in the Court Act or in any case law to which I have been referred as merit appeals, that broad description is a useful label to apply in that it aids in distinguishing Class 3 appeals from judicial review proceedings. It is also relevant because the Court is exercising powers pursuant to s 39(2) of the Court Act, an important distinguishing feature of the role the Court plays in Class 3 appeals compared to the role of a judge in judicial review proceedings.

1. The Applicant has sought to emphasise that because the Court's power under s 40(1)(a) of the VL Act includes confirming or revoking the decision to which the appeal relates, it is not properly characterised as a merit appeal but provides the Court with wider powers to find that valuations issued by the Valuer-General the subject of an appeal are beyond power. Such a power is akin to those that might be exercised in judicial review proceedings. That wording in s 40(1)(a) does not change the usual valuation function the Court exercises in a Class 3 appeal.

1. While the Applicant's counsel went to some lengths to characterise the challenge to the statutory basis for the four reascertainments of land value as part of the necessary issues that arise in the appeal under s 37(1), that issue is not a step along the way in the Applicant's argument within the Class 3 appeal. It raises more fundamentally whether there is a relevant valuation in relation to which an appeal under s 37(1) can be commenced at all in this Court. The Court is not being asked to consider whether the Valuer-General appropriately exercised his discretion under s 14A(6) but rather whether there is an essential legal basis for doing so. All the questions raised by the Applicant as being necessary to address within the appeal arise from that fundamental issue. It is not correct to classify the issue as one which arises in the course of a matter otherwise within the Court's jurisdiction. Stables Perisher does not assist the Applicant on this occasion to found the Court's jurisdiction. Nor is it a matter ancillary to the Court's jurisdiction under s 16(1A).

1. Reliance on Calvin v Carr and Bhardwaj to the effect that the Valuer-General's decision is valid until declared void to argue the issue can arise within this appeal does not recognise the fundamental argument that is sought to be put in relation to the Valuer-General's power under the VL Act to issue reascertainments. If successful in that argument there can be no decision of the Valuer-General to found a Class 3 appeal.

1. One case where the Court has exercised power to set aside a valuation in Class 3 proceedings was relied on by the Applicant. At [64] in Perpetual Trustees the Court found that a valuation was void. The question of the Court's jurisdiction did not appear to have been raised as an issue in that case so that I do not find it of great assistance in resolving the matter before me.

1. Section 34 limits the grounds of objection which can be raised in a Class 3 appeal. The Applicant's sole ground of objection is that the values are too high (s 34(1)(a)). I agree with the Respondent's submission that to extend that ground of objection to encompass a fundamental issue of whether a valuation issued by the Valuer-General is within power is a tortuous application of the language in s 34(1)(a). These words cannot found an appeal encompassing the issue of whether a valuation exists as a matter of law to appeal against.

1. The Respondent's submissions concerning the scope and purpose of Class 3 appeals in light of the provisions in the VL Act are accepted.

1. There is some circularity in the Applicant's argument that because the letter from its valuer dated 28 March 2008 states at numbered point 2 that the Valuer-General is not entitled to make the redeterminations as asserted, the issue now sought to be raised has always been the subject of this appeal. The Valuer-General did not refer to that matter when the objection was ruled upon in the letter dated 15 July 2008 also attached to the Class 3 application. The issue has not been raised in Court until this week. In any event, that statement in the letter cannot confer jurisdiction on the Court.

1. The Court must not attempt to exercise jurisdiction beyond its limits. In Stables Perisher Kirby P said at 585:

The Land and Environment Court is a superior court of record. But it is a statutory court of limited jurisdiction. It is therefore inevitable that, in marking out the limits of its jurisdiction a point will be reached where jurisdiction ends. When that happens, that court must refrain from purporting to exercise jurisdiction. It must do so however inconvenient it might be to the litigants, frustrating to the members of that court seeking to do justice in the case and even seemingly irrational in the efficient deployment of scarce public resources for the resolution of disputes by litigation. If the court purports to exercise a jurisdiction which it does not in law have, it is the duty of this Court, upon application, upholding the rule of

law, to invalidate any assertion of jurisdiction which does not lawfully exist.

1. If the Applicant commences proceedings in the Supreme Court these can be transferred to this Court under s 149B(1) of the Civil Procedure Act 2005 if the Supreme Court exercises its discretion to do so.

1. My finding is that the Court does not have jurisdiction in these Class 3 appeals to determine whether the reascertainments out of which the proceedings arise were not authorised by s 14A(6) of the VL Act.

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Decision last updated: 16 March 2011