Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Valuer-General v Fivex Pty Ltd [2015] NSWCA 53 Hearing dates: 26 February 2015 Decision date: 17 March 2015 Before: Basten JA at [1];
Gleeson JA at [2];
Leeming JA at [3]Decision: (1) Appeal allowed.
(2) Cross-appeal dismissed.
(3) Set aside the orders made on 28 March 2014, and remit the proceedings to the Land and Environment Court for determination in accordance with law.
(4) The respondent/cross-appellant to pay the costs of the appellant/cross-respondent of the appeal and cross-appeal.Catchwords: APPEALS - appeal confined to question of law - scope of appeal - no error of law in failing to address GST treatment of comparable sales where point not taken at trial
STATUTORY CONSTRUCTION - primacy of legislative text - relevance of principles of planning law
VALUATION - land value - unimproved value of fee-simple - highest and best use - s 6A(2) of Valuation of Land Act 1916 (NSW) - mandatory assumption as to existing uses and improvements - building exceeded maximum floor space ratio permitted under local environmental plan - actual use was highest and best use - whether s 6A(2) required regard to be had to maximum floor space permitted under local environmental plan or to actual floor space in buildingLegislation Cited: A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 38-325, 75-5
Land and Environment Court Act 1979 (NSW), s 57
Valuation of Land Act 1916 (NSW), ss 6A, 14G, and 37Cases Cited: Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
AMP Henderson Global Investors v Valuer General [2004] NSWCA 264; 134 LGERA 426
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; 151 LGERA 400
Commonwealth Custodial Services Ltd v Valuer General [2007] NSWCA 365; 156 LGERA 186
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; 146 CLR 336
Hayes v Willoughby [2013] UKSC 17; [2013] 2 All ER 405
Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 237 CLR 285
Royal Sydney Golf Club v Federal Commissioner of Taxation [1955] HCA 13; 91 CLR 610
Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193
Toohey’s Ltd v Valuer General [1925] AC 439
Trust Company of Australia v Valuer-General [2007] NSWCA 181; 154 LGERA 437
Valuer-General of New South Wales v In Adam Pty Ltd [2012] NSWCA 20
Valuer-General v Commonwealth Custodial Services Ltd [2009] NSWCA 143; 74 NSWLR 700
Valuer-General v Perilya Broken Hill Ltd [2013] NSWCA 265; 195 LGERA 416
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259
Western Freight Management Pty Ltd v Roads & Maritime…
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Details
- AGLC
- Valuer-General v Fivex Pty Ltd [2015] NSWCA 53
- Case
- [2015] NSWCA 53
- Decision Date
CaseChat Overview and Summary
The Valuer-General appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court concerning the unimproved value of land owned by Fivex Pty Ltd. The dispute centred on the valuation of a property where the existing building exceeded the maximum floor space ratio permitted by the relevant local environmental plan. The Valuer-General contended that the Land and Environment Court erred in its valuation by failing to properly consider the statutory assumptions mandated by section 6A(2) of the *Valuation of Land Act 1916* (NSW).
The primary legal issue before the Court of Appeal was whether section 6A(2) of the *Valuation of Land Act 1916* required the valuer to disregard the actual floor space of the building on the subject land and instead have regard to the maximum floor space permitted by the local environmental plan when determining the unimproved value of the land. This involved an interpretation of the statutory assumption that land is valued as if it were vacant, with existing improvements being disregarded, but with regard to the "existing use" of the land. A secondary issue arose from a cross-appeal by Fivex Pty Ltd regarding the treatment of Goods and Services Tax (GST) in comparable sales, though this was confined to a question of law.
The Court of Appeal held that section 6A(2) mandates that the land be valued as if vacant, but with regard to its existing use. The court reasoned that the "existing use" refers to the actual use of the land, not a hypothetical use permitted by planning controls. Therefore, the fact that the building exceeded the maximum floor space ratio did not mean the existing use was unlawful or should be disregarded for valuation purposes. The court found that the Land and Environment Court had erred in its interpretation of section 6A(2) by failing to give proper regard to the actual use of the land as it existed. The court also determined that no error of law had been made by the primary judge in relation to the GST treatment of comparable sales, as this point had not been taken at trial.
Consequently, the Court of Appeal allowed the Valuer-General's appeal, dismissed Fivex Pty Ltd's cross-appeal, set aside the orders of the Land and Environment Court, and remitted the proceedings for redetermination in accordance with the law. The respondent, Fivex Pty Ltd, was ordered to pay the costs of the appeal and cross-appeal.
The primary legal issue before the Court of Appeal was whether section 6A(2) of the *Valuation of Land Act 1916* required the valuer to disregard the actual floor space of the building on the subject land and instead have regard to the maximum floor space permitted by the local environmental plan when determining the unimproved value of the land. This involved an interpretation of the statutory assumption that land is valued as if it were vacant, with existing improvements being disregarded, but with regard to the "existing use" of the land. A secondary issue arose from a cross-appeal by Fivex Pty Ltd regarding the treatment of Goods and Services Tax (GST) in comparable sales, though this was confined to a question of law.
The Court of Appeal held that section 6A(2) mandates that the land be valued as if vacant, but with regard to its existing use. The court reasoned that the "existing use" refers to the actual use of the land, not a hypothetical use permitted by planning controls. Therefore, the fact that the building exceeded the maximum floor space ratio did not mean the existing use was unlawful or should be disregarded for valuation purposes. The court found that the Land and Environment Court had erred in its interpretation of section 6A(2) by failing to give proper regard to the actual use of the land as it existed. The court also determined that no error of law had been made by the primary judge in relation to the GST treatment of comparable sales, as this point had not been taken at trial.
Consequently, the Court of Appeal allowed the Valuer-General's appeal, dismissed Fivex Pty Ltd's cross-appeal, set aside the orders of the Land and Environment Court, and remitted the proceedings for redetermination in accordance with the law. The respondent, Fivex Pty Ltd, was ordered to pay the costs of the appeal and cross-appeal.
Orders
Orders of the court
(1) Appeal allowed.
(2) Cross-appeal dismissed.
(3) Set aside the orders made on 28 March 2014, and remit the proceedings to the Land and Environment Court for determination in accordance with law.
(4) The respondent/cross-appellant to pay the costs of the appellant/cross-respondent of the appeal and cross-appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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