SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0022
| VALUER-GENERAL VICTORIA | Applicant |
| v | |
| AWF PROP CO 2 PTY LTD (AS TRUSTEE) (ACN 603 996 407) AND ARARAT WIND FARM PTY LTD (ACN 158 062 358) | First Respondents |
| and | |
| ARARAT RURAL CITY COUNCIL | Second Respondent |
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| JUDGES: | McLEISH and EMERTON JJA and DELANY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 and 22 July 2021 |
| DATE OF JUDGMENT: | 1 October 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 274 |
| JUDGMENT APPEALED FROM: | [2020] VSC 853 (Richards J) |
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VALUATION OF LAND – Fire services levy – Levy calculated according to capital improved value of land – First Respondents leased 16 parcels of land for purpose of establishing and operating wind farm – Wind farm assets comprised 75 wind turbines, substation, buildings, cabling, and other items affixed to land – Contractual obligation to remove wind farm assets at end of lease – Whether wind farm assets formed part of land to be valued – Whether primary judge erred by valuing wind farm as separate occupancies – No error in approach of primary judge – Whether primary judge erred in valuing land on basis land was leased for wind farm operation – No error in approach of primary judge – Shell Co of Australia Ltd v City of Melbourne [1997] 2 VR 615, Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445, considered – Leave to appeal granted, appeal dismissed – Fire Services Property Levy Act 2012 s 16 – Property Law Act 1958 s 154A – Valuation of Land Act 1960 ss 2(1), 2(3), 5A, 13DC – Interpretation of Legislation Act 1984 s 38.
REAL PROPERTY – Fixtures – Tenant’s fixtures – Whether wind farm assets belonging to lessee formed part of land – Wind turbines connected to underground foundations – Connection for safety and operational reasons – Turbines and other above ground assets capable of dismantling and removal – Obligation on lessee to remove things erected or installed on land and make good – Lessee entitled to remove turbines and other assets during lease – Lease term 25 years with option to renew – Above ground assets chattels – SPIC Pacific Hydro Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 395, considered – Property in assets remaining with lessee during lease by operation of Property Law Act 1958 s 154A – Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351, Commissioner of State Revenue v Uniqema Pty Ltd [2004] VSCA 82, applied.
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| APPEARANCES: | Counsel | Solicitors |
| Applicant | Mr T North QC with Mr D O’Brien and Ms E Bergin | Mr J Collopy, Land Use Victoria Legal |
| First Respondents | Mr D Batt QC and Ms L Hannon QC with Ms J Trewhella | Herbert Smith Freehills |
| Second Respondent | No appearance |
McLEISH JA
EMERTON JA
DELANY AJA:
This appeal concerns the assessment of the fire services levy payable by AFW Prop Co 2 Pty Ltd (‘AFW Prop…
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- Case
- [2021] VSCA 274
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the wind farm assets were fixtures that formed part of the land or if they were chattels that remained the property of the lessee, AWF Prop Co 2 Pty Ltd. Additionally, the court needed to ascertain if the primary judge had erred by valuing the wind farm as separate occupancies and whether there was an error in valuing the land on the basis that it was leased for wind farm operations. The court considered precedent cases such as Shell Co of Australia Ltd v City of Melbourne [1997] 2 VR 615 and Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445.
The Court of Appeal held that there was no error in the primary judge's approach. The wind farm assets were not considered part of the land for the purpose of the levy as they were removable and the lessee had an obligation to dismantle and remove them at the end of the lease. The court found that the wind turbines, while connected to underground foundations for safety and operational reasons, were still chattels and not fixtures. The reasoning was informed by cases such as SPIC Pacific Hydro Pty Ltd v Chief Commissioner of State Revenue [2021] NSWSC 395 and Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue (2004) 12 VR 351. Consequently, the appeal was dismissed, and the decision of the primary judge was upheld.
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