Valuer-General v Commonwealth Custodial Services Ltd

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Valuer-General v Commonwealth Custodial Services Ltd [2009] NSWCA 143
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40438/08

HEARING DATE(S):
21 May 2009

JUDGMENT DATE:
10 June 2009

PARTIES:
Valuer-General (Appellant)
Commonwealth Custodial Services Ltd (Respondent)

JUDGMENT OF:
Hodgson JA Tobias JA McClellan CJ at CL   

LOWER COURT JURISDICTION:
Land & Environment Court

LOWER COURT FILE NUMBER(S):
LEC 30010/08
LEC 30153/08

LOWER COURT JUDICIAL OFFICER:
Biscoe J

LOWER COURT DATE OF DECISION:
28 November 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
NSWLEC 310

COUNSEL:
J A Ayling SC/J B Maston (Appellant)
M Craig QC/M Seymour (Respondent)

SOLICITORS:
Crown Solicitors Office (Appellant)
Mallesons Stephen Jaques (Respondent)

CATCHWORDS:
APPEAL
valuation of land
valuations
heritage restricted
valuation methodology
assumption of new building or actual building in its existing condition

LEGISLATION CITED:
Valuation of Land Act 1916 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Commonwealth Custodial Services Ltd v Valuer-General [2007] NSWCA 365; (2007) 156 LGERA 186
Valuer-General v Fenton Nominees Pty Ltd (1982) 150 CLR 160; 47 LGRA 95
Toohey's Limited v Valuer-General (1924) 25 SR (NSW) 75

TEXTS CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40438/08
LEC 30010/08
LEC 30153/08

HODGSON JA
TOBIAS JA
McCLELLAN CJ at CL

WEDNESDAY 10 JUNE 2009

VALUER-GENERAL  v COMMONWEALTH CUSTODIAL SERVICES LTD

Judgment

1. HODGSON JA:  I agree with the order proposed by McClellan CJ at CL and with his reasons. I would add some comments.

2. It was submitted for the Valuer-General that it could not be the case that the s 6A valuation of land may be affected by the actual state of improvements on the land: that must, it was submitted, be inconsistent with the assumption required by s 6A that the improvements had not been made.

3. However, once the Valuer-General has made the determination referred to in s 14G(2) of the Valuation of Land Act 1916, the assumptions in s 14G(1) must be made; and they include the assumptions that the improvements on the land when the value is determined may be continued and maintained, and that no other improvements may be made. In my opinion, the assumptions thus required are assumptions as to the improvements as they actually are at the relevant time, not as they might be if they were in an ideal condition. It follows that the s 6A valuation might vary according to the actual condition of the improvements.

4. In my opinion this is not precluded by s 6A of the Act, or the authority of Tooheys Limited v Valuer-General (1924) 25 SR(NSW) 75.

5. The land is still valued on the assumption that the improvements had not been made; but in considering the use to which the land can be put, the assumption has to be made that no improvements can be made to the land other than the improvements that are actually there. The latter assumption can then…