1. Regarding development on the subject block, clause 3(b) of the Crown lease provides:

(b) That the total gross floor area of a Building erected on the Land shall not exceed 4,800 square metres.

1. In Springrange Pty Ltd v ACT and ACT Planning and Land Authority[1] the ACT Court of Appeal upheld an interpretation that "a Building" for the purposes of clause 3(b) of the Crown lease encompasses all buildings on the subject block and is not a reference to the maximum gross floor area (GFA) of each or any buildings individually.
2. On 3 May 2017 the applicant purchased the subject block for $15,100,000.[2]
3. On 24 July 2017,[3] the applicant lodged a development application (the DA) with ACTPLA for approval to demolish the existing structures on the subject block and to construct a multi-unit housing development of 151 residential dwellings.
4. As part of the DA, the applicant also applied to delete clauses 3(aa) and 3(b) of the Crown lease, and to vary clause 3(a) to read as follows:

To use the premises only the purpose of residential use limited to multi-unit housing for not more than one hundred and fifty four (154) dwellings.

1. By decision made on 26 October 2017, ACTPLA approved the DA subject to conditions.[4] The decision included approval of a variation to clause 3 of the Crown lease in the terms sought, subject to determination of the concessional status of the Crown lease. Pursuant to section 276B of the P&D Act, the applicant was required to pay any Lease Variation Charge (LVC), less any remission plus any increase under section 279 of the P&D Act, prior to execution of the variation to the lease.
2. On 5 April 2018, a delegate of ACTPLA issued a determination that the Crown lease is a market value lease.[5]
3. On 6 April 2018, having regard to ACTPLA's approval of the lease variation on 26 October 2017 (the Development Date) and ACTPLA's determination that the Crown lease is a market value lease, the Commissioner issued a notice of assessment of the LVC.[6] In accordance with City Hill Pty Ltd (ACN 064 633 558) v ACT Planning and Land Authority and Anor (City Hill)[7] the LVC was, and must be, assessed as at the Development Date.[8]
4. For the purpose of calculating the LVC, the Commissioner applied the formula in section 277(1) of the P&D Act, which states:

1. As discussed in these reasons, 'V1' represents the capital sum that the lease might be expected to realise after its variation subject to some statutory assumptions. 'V2' represents the capital sum that the lease might be expected to realise before its variation subject to some statutory assumptions. The Commissioner assessed V1 at $15,400,000 and V2 at $2,160,000. These assessments caused the following calculation:

1. The Commissioner calculated the value added to the lease arising from the variation to be $13,240,000. By applying the statutory formula, the Commissioner calculated the LVC to be 75% of that sum, being $9,930,000.
2. The Commissioner then applied a 25% remission of the added value ($13,240,000) by way of a government approved 'economic stimulus' ($3,310,000)[9] and a 25% remission of the LVC ($9,930,000) by reference to a NatHERS/GREEN STAR rating of 7.5 ($2,482,500).[10] After applying the two remissions, the Commissioner assessed the payable LVC to be $4,137,500 (the original decision).[11]
3. On 3 June 2018, the applicant lodged a development application to amend the development approval given on 26 October 2017 to reduce the number of permissible dwellings under the proposed Crown lease variation from 154 to 151, presumably to achieve consistency with the number of dwellings approved for construction. On 14 June 2018, ACTPLA approved the application.[12]
4. On 30 July 2018, pursuant to section 277C of the P&D Act, the applicant applied for reconsideration of the original decision made on 6 April 2018.
5. On 3 September 2018, under section 277E of the P&D Act, the Commissioner confirmed the original decision (the reconsideration decision).[13]
6. By application dated 24 September 2018, under section 408A of the P&D Act, the applicant applied to the Tribunal for review of the reconsideration decision.[14] At hearing, Mr Robens of counsel appeared for the applicant. Dr Jarvis of counsel appeared for the Commissioner.
7. In most cases where a valuation of land is necessary, for example to calculate duty, rates or land tax, sections 100 and 101 of the Taxation Administration Act 1999 (the TAA) impose on the taxpayer the burden of showing that an objection to a reassessment should be sustained.[15] However sections 100 and 101 of the TAA do not extend to the Tribunal's review an assessment of a LVC. The well-settled principles of de novo merits review therefore apply.

1. A "chargeable variation" of a nominal rent lease means a variation of the lease with some exceptions, none of which is applicable in this case.[16] Under section 276C of the P&D Act, the LVC is the charge "worked out under section 277 for the variation".
2. The relevant parts of section 277 of the P&D Act provide:

277 Lease variation charges - s 277 chargeable variations

(1) The commissioner for revenue works out the lease variation charge for a s 277 chargeable variation of a nominal rent lease as follows:

LVC means the lease variation charge payable for the s 277 chargeable variation of the lease.

_(a) for a variation other than a consolidation or subdivision, means the capital sum that the lease might be expected to realise if - _

1. the lease were not varied during the remainder of its term; and

2. the lease were genuinely offered for sale immediately before the variation on the reasonable terms and conditions that a genuine seller would require; and

3. the rent payable throughout the term of the lease, or lease to be surrendered, were a nominal rent; or

(b) ..

(3) If the amount worked out as V1 is equal to or less than the amount worked out as V2, no lease variation charge is payable.

(4) ...

1. Section 277A of the P&D Act deals with improvements that may or must not be taken into account for the purpose of calculating V1 and V2. No issue arose about the value of improvements on the subject block.
2. Mr Robens stated that the Commissioner's assessment of V1 of the subject block of $15,400,000 was "not in contention".[17] I adopt that sum.
3. In issue was the calculation of V2. The applicant contended, with reliance on the opinion of Mr Phil Green, a certified practising valuer, that V2 should be $7,950,000. The Commissioner contended, with reliance on the opinion of Mr Geoffrey McInerney, also a certified practising valuer, that V2 should be $2,160,000.
4. There are many methods for deriving an opinion about the value of land.[18] However, in this case, both valuers adopted the Comparable Sales Method, which is the most commonly used method. It involves "seek[ing] out relatively contemporaneous sales of comparative properties between parties at arm's length, unaffected by special circumstances".[19] What sales are 'comparable' is a question of fact,[20] and it was here that Mr Green and Mr McInerney fundamentally disagreed.

1. For the purpose of calculating V2, Mr Green considered sales of nine parcels of land that he regarded as "comparable" with the subject block. When choosing those sales, Mr Green considered the zoning of the land under the Territory Plan, the time of the sale and the site area.
2. Six of the nine comparable sales (which included two earlier sales of the subject block) were of land zoned 'CZ2' (meaning Commercial Zone 2) under the Territory Plan. One was zoned CZ3, two were zoned CZ5, one was zoned CZ6 and one was marked 'NCA'. In each case, residential use was a permissible use under the Territory Plan. All the sales were between June 2013 and July 2017. The site areas were between 1,786 m² and 44,215 m².
3. For each sale, Mr Green took the sale price and then deducted the assessed value of the improvements to arrive at the deduced land value (DLV) for each block, which I understood to mean the unimproved value (UV) of each block. He then divided the DLV by the site area of each block in square metres to arrive at a DLV per square metre as a common unit of measurement.[21]
4. Mr Green said that a valuation per square metre of the whole site was the appropriate measure for comparison because an assessment of V2 requires a valuation of "the capital sum that the lease might be expected to realise"[22] not the value of the permissible GFA under the lease. [23]
5. On the subject of GFA, Mr Green changed his position in the course of giving evidence at hearing. He began by saying that an assessment of V2 entails "everything in the Crown lease, not just the GFA",[24] which seemed to be an acknowledgement that the GFA limit is relevant but not the only relevant consideration. However, later in his evidence he contended that the GFA limit is irrelevant. The following exchange occurred between Dr Jarvis and Mr Green:

So the fact that I can now have no restriction on how much of the land I can build on, where previously I was confined to [4,800] square metres, is irrelevant?---That's right. Because there is the body of sales that tell you this is the case. But there's also - what has happened is that there's still a propensity for people to value in a change of use charge valuation regime, which is the former regime. In the change of use charge valuation requirements you value the use, existing, in the before value. And then you value what it's varied to in the after. What the Act says under the lease, so change of use charge, is now changed to lease variation charge, since 2011 requires you to value the capital sum of the lease. So that has no bearing on use, it has no bearing on GFA limitation, it has a lot of bearing on the size of its site and its location. And then in the after value, you must value what is the variation. The variation is from what was the before value, to what is now the after value. You're not valuing use in both the before and after.[25]

1. In support of his decision not to "look at a rate of GFA",[26] Mr Green relied on a decision of the Tribunal in Notaras v Commissioner for ACT Revenue (Notaras)[27] concerning an assessment of the UV of the subject property as at 1 January 2013 for the purposes of the Rates Act 2004. In that decision, Mr Green said, the Tribunal determined that GFA cannot be applied "unless the sites and the site sales have been built to ... their highest and best use."[28] Mr Green then contended:

So highest and best use is the town planning control not the Crown lease purpose and use.[29]

1. Where the site area of the subject block is 26,040 m², Mr Green said:

[Y]ou can only rely on a rate of GFA if the site has been built to a site's highest and best use. So in this case, the highest and best use of this site, or this lease is way beyond 4800, because you're allowed to do that under town planning controls.[30]

1. On this basis, Mr Green calculated the UV per square metre for the whole of the subject block and used that amount as a common unit of measurement. He did likewise for his comparable sales to check that his assessment for the subject block was not 'out of line'.
2. Referring to his 'basket' of comparable sales, Mr Green said it was "very lucky or fortunate"[31] that two sales in the basket were sales of the subject block in February 2014 when the subject land was sold for $10,815,000, and in December 2016 when it was sold for $15,100,000. For each sale, Mr Green valued the improvements at $2,364,000. For the February 2014 sale, this produced a DLV of $8,451,000, which Mr Green rounded to $8,450,000 or $325 per square metre. For the December 2016 sale, this produced a DLV of $12,736,000, rounded to $12,750,000 or $490 per square metre.
3. After taking into account that the February 2014 sale of the subject block was an off-market "distressed sale",[32] Mr Green adopted a DLV for the subject block as at the date of his report (4 July 2018) of $10,600,000 "reflecting the mid-point of the two (2) sales of the subject block after deducting the assessed value of improvements in each case."[33] This produced a DLV of $407/m² for the whole block.
4. Mr Green also calculated the DLV per square metre for each of the other comparable sales in his 'basket'. This produced amounts of $392/m², $500/m², $330/m², $627/m², $400/m², $318/m², $302/m², $90/m² and $1,150/m². After excluding the last two which were "too far outside the boundary of being a reasonable barometer on value",[34] Mr Green used the remaining comparable sales as a cross-reference, or quality check, to satisfy himself that the mid-point of the two sales of the subject block ($407/m²), represented an appropriate calculation of V2 as at the date of his report.[35]
5. Mr Green stated that in his opinion an appropriate calculation of V2 as at the Development Date (26 October 2017) would be the same as the value as at the date of his report (4 July 2018).[36]
6. Mr Green agreed that the prices paid for the subject block and each of the blocks in his basket of comparable sales reflected the development potential and the development rights that could be obtained by varying the Crown lease.[37]
7. At hearing, Mr Green changed his opinion about the value of V2, as expressed in his report. He stated that when calculating the DLV for each of his comparable sales, including the two prior sales of the subject block, he had not taken into account that the developer intended to pursue a redevelopment of the site. He offered that the DLV in each case was therefore "over inflated" by 25 per cent. Mr Green said:

So what my deduced land value figures do not take account of the fact is that the developer will either immediate or fairly soon thereafter purchase of the land, the lease of the land, pursue a redevelopment of the site for another purpose. ... What I'm alluding to is that built in the formula there is V1, V2 at 75 per cent. 75 per cent is attributed to the LVC or the tax payable but 25 per cent must go somewhere. So what's not shown in my report and shown is that with the propensity for redevelopment of all these sites is that it must be 25 per cent have gone somewhere. That 25 per cent must have flowed through to the sale price, the original sale price of the land. So what I'm saying is, where I stand now, based on my report originally, evidence heard and submitted subsequent, is that those deduced land values are over inflated by 25 per cent. So they need to be considered and reduced by 25 per cent each, because that is the free margin, or premium paid, that a developer gets when they purchase the site. And that's the value paid to that land owner at the time.[38]

What we need is a methodology and an approach to recognise the premium paid and I submit that the 25 per cent premium is reflective of the difference between 75 per cent and 100 per cent. And that flowed through to the transaction on the land.[39]

1. By way of summary, the following exchange occurred between Mr Robens and Mr Green:

MR ROBENS: Just to - I look at things a bit differently sometimes. Can I just clarify that you - it is your expert opinion that that 25 per cent discount would take into account any factors associated with the comparable properties, in anticipation of the future developments?---Yes. [40]

What I'm saying is that the before value has an embedded premium of 25 per cent of its own value. So because the LVC is the difference between before and after, that 75 per cent, that 25 per cent is the premium paid to purchase - - [41]

1. On this basis, Mr Green changed his opinion of V2 for the subject block as at the Development Date from $10,600,000 to $7,950,000.
2. Applying his reasoning, Mr Green said that there is an "embedded premium of 25 per cent" for the purpose of assessing V2, regardless of the value of any additional development rights obtained under the variation. The transcript of an exchange between Dr Jarvis and Mr Green reads:

The inference that I draw from that answer, is that the added value, or the added development rights for this block and for any of the others we're talking about, is simply 25 per cent only. No matter what additional development rights are - - -?---Correct. ... gained. Is that ...? Correct.[42]

1. In his written submissions in reply,[43] Mr Robens submitted that Mr Green's approach "sits in accordance with the valuation precedents and with the authority of City Hill".
2. Mr Green also said that where a Crown lessee applies for and obtains a lease variation which adds value to the lease, the lessee pays 25 per cent of that added value by way of LVC. The transcript of an exchange between Dr Jarvis and Mr Green reads:

Says that in effect, a person getting a lease variation, which adds development rights, valuable development rights, they only have to pay 25 per cent of that?---Correct[44]

1. In support of Mr Green's valuation of V2, Mr Robens relied on the sale of Block 8, Section 24, Phillip (the Phillip Block) which, he said, was "useful as a comparator". [45] It is on land zoned CZ2, like the subject block. It has a site area of 23,561 m², similar to the subject block which has an area 26,040 m². Mr Robens noted that the Phillip Block sold on 2 December 2013 for $13,606,250. He noted that an approved variation to the Crown lease generated a LVC of $3,693,750 being, he said, "75% of the improvement in the valuation resulting from the variation." After adding the additional 25% of the value of the improvement ($1,231,250), Mr Robens said:

the 'added value' that was assessed on [the Phillip Block] was calculated as $4,925,000.

There is $1,231,250 in improved value further to what was paid as the LVC. The deduced value of this block less the full amount of the improved value (comprising the existing improvements and 100% of the LVC) is therefore $8,014,000. This must be the before value for [the Phillip Block][46]

1. Regarding the change of use achieved by the variation to the Crown lease of the Phillip Block, Mr Robens submitted:

The 'added value' that was assessed on [the Phillip Block] was calculated as $4,925,000, considering a variation to change the purpose from being limited to the previous use as a recreation facility with a maximum gfa of 5300 m², then to allow a development of 500 units.[47]

1. Mr Robens then submitted that the Crown lease for the subject block "is changing in a similar way ... but with the addition of only 151 residences", rather than 500 residences. On this basis, he submitted that the LVC for the subject block of $4,137,500 is 'out of line' with the LVC of $3,693,750 for the Phillip Block.
2. Mr Robens also contended that the Commissioner's assessment of V2 is too far 'out of line' with previous valuations for the subject block that 'to make it credible'.[48] He relied on a valuation provided by the Australian Valuation Office (AVO) in its report dated 4 December 2007 in which the AVO's valuer assessed V2 at $7,100,000. At that time (pre 1 July 2011), the value of improvements was not disregarded for the purpose of assessing V1 or V2 as must now occur under section 277A of the P&D Act. On this basis, Mr Robens submitted that if Mr Green's assessment of the value of the improvements in 2017 of $2,364,000 is accepted:[49]

then the AVO's 2007 valuation, minus $2,364,000 in improvements shows a valuation of $4,736,000 in 2007 which is a considerably higher price than Mr McInerney is willing to accept for a current day valuation. The applicant submits that any argument that the present valuation of the before value of the Land would be less than that in 2007 is unsustainable.[50]

1. Mr McInerney, like Mr Green, used the comparable sales method for the purpose of assessing V2 but used an entirely different basket of sales. When selecting sales that he thought appropriate, Mr McInerney focused on clauses 3(a), 3(aa) and 3(b) of the Crown lease, which limit the uses of the subject block and the GFA of all or any building on the block.
2. By reference to paragraph (a)(i) of the definition of V2 that requires a statutory assumption to be made that the lease will not be varied during the remainder of its term, Mr McInerney chose sales of land in the suburbs of Mitchell, Hume and Fyshwick, all on land zoned IZ2 (Industrial Zone 2) under the Territory Plan where (by reason of its zoning) residential use is not permitted. The permissible uses on these blocks (by reference to the applicable Crown leases) included store, warehouse, general industry, shop, office and storage. Mr McInerney considered eight sales in the suburb of Mitchell, five in the suburb of Hume and four in the suburb of Fyshwick in 2014, 2015 and 2016.
3. Mr McInerney calculated a value per square metre by reference to the GFA limit, as a common unit of measurement, rather than by reference to a value per square metre for the whole site. In his view, where the total floor area of any or all buildings cannot exceed the GFA limit under the existing Crown lease and the lease cannot be changed during the remainder of its term, the value of the whole block for the purposes of V2 is limited by that GFA limit. In his view, the remainder of the subject block did not have any commercial value because there was no right to build on it.[51]
4. In his view, two blocks in Mitchell, one in Hume and two in Fyshwick where the sales prices produced GFA estimated values of $342/m², $400/m², $438/m², $450/m² and $481/m², respectively, were the most comparable sales.
5. Mr McInerney referred to a further sale in Fyshwick in 2016 of a block with a permitted use of 'data storage', which sold for $1,800,000. The site area was 5,350m². The GFA limit under the lease was 3,745m². These sums produced values of $336/m² by reference to the whole site area or $481/m² by reference to GFA.
6. Having regard to the estimated GFA values in his 'basket' of comparable sales, Mr McInerney estimated the GFA value of the subject block to be $450/m². Mr McInerney then multiplied that amount by the maximum permissible GFA of 4,800 m² to derive a V2 value of $2,160,000.

1. As stated in Spencer v The Commonwealth,[52] a valuation supposes (or presumes) a vendor and purchaser "both perfectly acquainted with the land, and cognisant of all circumstances that might affect its value, either advantageously or prejudicially". The parties agreed, and I accept, that this test is reflected in paragraph (a)(ii) of the definition of V2 quoted above.
2. A valuation of the 'market value' of land requires consideration of its highest and best use. In his report,[53] Mr Green referred to a publication of the Australian Taxation Office entitled "Market valuation for tax purposes", modified as at October 2017, which (on page 10) contains the following statement regarding highest and best use:

You should assess market value at the 'highest and best use' of the asset as recognised in the market. The concept of 'highest and best use' takes into account any potential for a use that is higher than the current use.

The current use of an asset may not reflect its optimal value. Optimal value is defined by the International Valuation Standards Counsel as:

... The most probable use of a property which is physically possible, appropriately justified, legally permissible, financially feasible, and which results in the highest value of the property being valued".

IVSC Standard 33 says that "the market value will reflect its highest and best use". The IVSC definition of highest and best use is "the use of an asset that maximises its potential and that is physically possible, legally permissible and financially feasible [54]

1. Legally permissible use of land in the ACT is determined primarily by two factors: the applicable provisions of the Territory Plan and the applicable Crown lease. Other factors can also have a bearing, for example an easement, a licence to occupy and a lease by the Crown lessee to a third party. These factors may increase or decrease the value of the land.[55]
2. In Gungahlin Golf Investments Pty Ltd v Commissioner for ACT Revenue (Gungahlin Golf Investments),[56] the Tribunal considered the UV of land for the purposes of a rates assessment under the Rates Act 2004. The case turned upon the proper interpretation of the Crown lease, and whether additional uses of the land must be in addition to, or could be alternatives to, the first stated use of the land as a golf course. But there was no dispute that the UV was affected by what can, must and must not be done on the land under the Crown lease.[57]
3. In Perpetual Trustee Co Ltd v Valuer-General (Perpetual Trustee),[58] the Supreme Court of South Australia, per Debelle J, said:

[W]hen land is subject to a lease, the valuer determining the capital value of the land must consider whether the lease is a burden to the enjoyment of the estate in fee simple and so impairs the value of the subject land.

1. In Challenger Property Asset Management Pty Ltd v Stonnington City-Council (Challenger),[59] the Supreme Court of Victoria, per Croft J, made a similar observation:

When determining the value of the fee simple, the valuer will, therefore, have to determine whether the lease is a burden in the sense that it diminishes the value of the estate in fee simple. That is a task which is the very stuff of valuation.

1. Perpetual Trustee and Challenger involved land held in fee simple, rather than under a Crown lease, and consideration of the value of a commercial lease to a tenant. However, in my view, the principle stated in those cases still applies. An assessment of the highest and best use of land requires consideration of what is legally permissible on the land (among other things), regardless of the legal instrument or instruments that dictate what can, may or must not be done on the land.
2. When assessing the highest and best use of land, it is also necessary to take legislative direction into account. In City of Castlemaine v Scott (No 2),[60] the Supreme Court of Victoria, per Gillard J, defined 'valuation' for the purposes of the Valuation of Land Act 1960 (Vic) as follows:

[A]n official act or operation by an authorised person. It is his mathematical assessment or computation of relevant value, having regard and taking into account all the matters he is directed by the legislation to take into account.

1. Legislative direction will vary according to the applicable legislation.
2. Under section 277A (1) and (2) of the P&D Act, for the purpose of calculating V1 and V2, the valuer is directed to exclude some kinds of improvements to the land and to include other kinds of improvements. Section 277A causes the valuer to determine what is generally described as the UV of the land. A similar legislative direction is used to calculate the UV of land for the purposes of sections 6 and 10 the Rates Act 2004.
3. Legislation also directs the time at which a valuation must be done. Section 277 of the P&D Act directs (implicitly) that the two valuations required for the purpose of assessing V1 and V2 must be done as at the date the variation is approved. Section 10 of the Rates Act 2004 directs that the UV of the land be assessed annually "as soon as practicable after each 1 January" of each applicable year. Land tax, under section 9 of the Land Tax Act 2004, is assessed by reference to the averaged UV (AUV) of the land assessed under the Rates Act. It follows that for the purposes of the Rates Act and the Land Tax Act, the UV of the land is assessed annually and will change from time to time.
4. Drawing on Gungahlin Golf Investments, the UV for the purposes of the Rates Act or the Land Tax Act will therefore change if the terms of the lease change to permit uses that are more or less valuable than the uses that were required or available prior to the change, or to permit uses that were prohibited prior to the change.
5. The calculation of the UV of land for the purpose of determining V2 is subject to very different legislative direction. In particular, section 277(1)(a) directs the valuer to assume that the lease will not change for the remainder of its term. In this case, the valuer must therefore assume that clauses 3(a), 3(aa), 3(b) and all other clauses in the lease as at the Development Date cannot change for the remainder of the lease term.
6. In my view, Mr Green's analysis and his selection of comparable sales disregards this statutory assumption. Indeed, he appears to regard it as unworkable. In cross examination, Dr Jarvis suggested to Mr Green that the sale of the subject block in February 2014 occurred for a price that contemplated a value of the lease as varied, not the value as if it could not be varied for the remainder of its term. Mr Green disagreed:

I beg to differ because any site that sells in a commercial zone, you can't have a world where nothing would ever change. I know that's the stipulated [V2(a)(i)] that doesn't vary during the [remainder] of its term but to be in a commercial zone and there was never any variation on that, how does one assess that?

Well, that's why the valuer's task is a difficult one, Mr Green?---Yes.[61]

1. Dr Jarvis' proposition that V2 must be determined as if the lease as at the Development Date cannot be varied for the remainder of its term may not reflect commercial reality, but it is correct. All words in the definition of V2 must be given meaning and effect.[62] In the 'real world', things change and the market values of land change according to changes or prospective changes that are permissible, commercial and achievable, but paragraph (a)(i) of the definition of V2 requires those changes or prospective changes to be ignored if they would require a change to the Crown lease during the remaining period of the lease.
2. The valuation may be difficult and artificial, but that is what the legislation demands. The valuer must pose and then answer the question, "Assuming the lease cannot change for the remainder of its term, what would it be worth on the open market?"
3. For this reason, the phrase 'market value' must be used with care: it is apt to mislead for the purpose of calculating V2.
4. The 'real' market will value land according to the real facts and circumstances that bear upon what is physically, legally and financially permissible and achievable on the land. That includes the real facts and circumstances that bear upon a proposed or possible change to the Crown lease such as the probability of ACTPLA approving the change (in some cases, environmental or other considerations might mean that approval is unlikely); how long it may take to effect the change; the costs of achieving the change (including payment of the LVC); the development opportunities that would arise from the change; the value of those opportunities; foreseeable objections or impediments to achieving those development opportunities; and so on.
5. These considerations involve risk, judgement and uncertainty all of which is factored into the 'real' market value. In Turner v Minister of Public Instruction, the High Court, per Dixon CJ, described it as "the risk of realization".[63] Valuers discount the potential value of land, with future development in mind, according to the degree of risk of realising that potential.
6. A valuation for the purposes of V2 should likewise be done by reference to all the real facts and circumstances - with one important exception: it must be assumed that a change of lease is not legally permissible for the remainder of its term.[64]
7. In cases where the Crown lease already permits what is, or is perceived to be, the highest and best use of the land and what is perceived to be, or likely to be, the highest and best use for the remaining period of the lease (whatever that may be), the statutory assumption is unlikely to make any material difference to the capital value of the lease: with or without the required statutory assumption, the value is likely to be materially the same. For example, in Donohue v ACT Planning and Land Authority (Donohue)[65] the Crown lease already permitted use of the land "for residential purposes only" which (it seems to have been accepted) was the highest and best use of the land once applicable provisions of the Territory Plan were taken into account. The UV for the purposes of V2, and the UV without the assumption required for the purposes of V2, appears to have been the same. The only issue was quantification of it.
8. This leads me to Mr Robens' submission that Mr Green's approach is in accordance with City Hill. I disagree. A host of factors had a bearing on the values of V1 and V2, both of which were in issue. No one suggested that the variation to add residential use, but not at the ground floor or first floor levels,[66] added significantly to the value of the lease. Mr Arthur, counsel for the Crown lessee, submitted that the addition of residential use did not add any value because of all the attendant problems of contamination and groundwater on the land that needed to be addressed in order to realise that use.[67] In the event, the Tribunal made a slight deduction of 5% from the sale price to reflect its view about the increase in value attributable to the purchaser's "hope of gaining the additional rights that would accrue if the lease were to be varied",[68] but no one suggested an "embedded premium" of 25%. Also, on appeal, Refshauge J noted that section 277 of the P&D Act requires an assumption "that the lease will not be varied during its currency".[69] His Honour concluded that the deduction of 5% was open to the Tribunal on the evidence to reflect the potential increased value, although expressing his view that to apply the same discount to different sales is "probably factually wrong".[70]
9. In Giusida Pty Ltd v Commissioner for ACT Revenue (No 2) (Guisida) the Supreme Court, per Elkiam J, made the same observation about discounting the sale price of the subject land and comparable sales by a common amount because of an assumed general risk of contamination, stating "it is an error to apply an equal assumption across the whole of Braddon".[71]
10. These observations by the Court in City Hill and Giusida apply equally to Mr Green's approach of applying a common 25% embedded premium to all his comparable sales and to his valuation of V2 for the subject block to reflect development potential consequent upon a variation to the applicable Crown lease without regard to details affecting the estimated value of the variation, the risks of realising the development potential or the prospect of obtaining the variation, among other things. It is an error not to do so.
11. City Hill and Donohue demonstrate that the effect of the statutory assumption in the definition of V2 on the real value of the land (or lease) can vary widely. In some cases, it can be very significant. This is such a case. The subject block is in an area where residential use is permissible under the Territory Plan. The GFA of residential development permissible under the Territory Plan is substantially greater than that permitted under the Crown lease. There is (or would be) a valuable market for residences on the subject block. There is no suggestion of any practical impediments or difficulties that would prevent residential use. The 'real' market would be presumed to know those facts and to know that a change to the Crown lease (once registered) would significantly increase the market value of the lease (meaning the subject block). The real market would value the block accordingly. But for the purpose of assessing V2, the market must be presumed to know that a change to the Crown lease is not possible for 84 years, and value the block accordingly.
12. For the purpose of calculating V2, the task is to value "the capital sum that the lease might be expected to realise if [it] were not varied during the remainder of its term". A lease, after all, is a document setting out rights and responsibilities concerning the subject land. The thinking behind the statutory formula seems to be that because, by nothing more than 'the stroke of a pen' varying a Crown lease document, the land over which the lease pertains becomes more valuable that it was previously the Crown lessee is required to pay 75% of that increased value to the Commissioner by way of the LVC less any remission. Inferentially, the lessee retains 25% of the increased value of the subject land arising from the variation to the lease,.
13. This is reflected in the comments of the (then) Treasurer in the Legislative Assembly, when amendments to the change of use charge regime were introduced. The Treasurer said:

The change of use charge has been in place in the ACT since 1971. It is an integral part of the Territory's unique leasehold land system. Under the betterment principle, a proportion of any windfall gain accruing to the lessee from a variation to their lease is returned to the community.[72]

1. The policy considerations underpinning the apportionment of the added value arising from the lease variation do not arise for consideration. The Commissioner's function, and the Tribunal's function on review, is to apply the formula as stated.
2. Sometimes, regardless of the potential value of the subject land on the open market, a change in the Crown lease will have little effect on the capital sum that it might be expected to realise. For example, in this case, if the applicant had applied only to delete clause 3(aa) that restricts who may use the premises for "store", I expect the change would have had a negligible, if any, effect on the capital sum that the lease might be expected to realise after the change - with the result that little, if any, LVC would have been payable.
3. The scenario illustrates the structure of the statutory formula in section 277. V2 never changes regardless of the variation: it is the 'reference point' from which the value of the variation (reflected in V1) is measured. Donohue is a good illustration. The Crown lessee submitted (with some force in my view) that the variation to the lease did not increase the value of the lease because the lease purpose clause before the variation permitted residential use without limitation to the kind or number of dwellings that could be built on the block.[73] The lessee wished to vary the lease only to make express that he would be permitted to have "a maximum of 11 dwelling units on the site". However, the Tribunal did not need to consider the argument because the applicant agreed that the value of the lease after the variation, or V1, was $1,430,000. Where the Tribunal concluded on the evidence by reference to comparable sales that the value of the lease before the variation was $1,340,000, a LVC became payable.
4. Application of the statutory formula also causes me to disagree with all of Mr Green's different opinions about how to calculate V2. An assessment of V2 does not contemplate an "embedded premium" of 25 per cent or any other percentage or amount that must be deducted from the value of the lease on the open market prior to its variation. It is nonsensical to suggest any fixed deduction, especially where a variation might increase the value of the lease well above or well below 25 per cent of its pre-variation value, or not increase the value at all. Nothing is to be 'deducted'. The task is to value the land on the basis of the statutory assumption. The market value without the assumption and any "premium" that a purchaser may be willing to pay in the real market, in anticipation of realising a potential that is dependent on a variation to the Crown lease, is irrelevant.
5. The sale of the Phillip Block on which Mr Robens relied illustrates the errors that can arise by relying on sales where a lease variation has occurred or may occur.
6. Mr Robens submitted, by reference to the LVC that was payable ($3,693,750), that the variation to the Crown lease increased the value of the Phillip Block by $4,925,000 (ie an additional 25% of the payable LVC). He submitted that "the deduced value of the block less the full amount of the improved value ... is therefore $8,014,000". This, he said, "must be the before value" for the Phillip Block.
7. Mr Green took a different approach. He submitted that V2 is calculated by deducting the value of the improvements on the Phillip Block ($4,361,000) from the sale price ($13,606,250) to obtain the DLV for the block ($9,245,250). He then deducted a further 25% of the DLV ($2,311,312) to reflect his "embedded premium".[74] This produces, he said, a V2 sum, or 'before value', for the Phillip Block of $6,933,938.
8. Mr Robens and Mr Green were approximately $1 million apart regarding their assessments of V2 for the Phillip Block, but neither approach withstands scrutiny. Mr Robens acknowledged the possibility of remissions of the LVC, but ignored that possibility in his calculations. In the case of the subject block, as mentioned in paragraph 17 above, the remissions caused the payable LVC ($4,137,500) to be approximately 41.67% of the assessed LVC ($9,930,000). If the same amount of remission applied when calculating the LVC payable for the Phillip Block, the LVC assessed under the statutory formula would have been $8,864,291[75] being 75% of the increased value of the Crown lease. With the added 25% ($2,216,073) to reflect the full value of the variation, the 'added value' would have been approximately $11,080,364. Referring to Mr Robens' submission, there is no evidence that the "added value ... was calculated as $4,925,000."
9. The Phillip Block was sold with the benefit of ACTPLA's decision to approve the lease variation. The change of lease was therefore secure. A valuer might reasonably presume that the full value of the variation was therefore factored into the purchase price. Assuming a 58.33% remission of the assessed LVC, a valuer might presume that the sale price was comprised of the full value of the lease variation ($11,080,364) plus Mr Green's assessment of the value of the improvements ($4,361,000) less the payable LVC ($3,693,750). This produces a net amount of $11,747,614, which suggests that the balance of the sale price is the unimproved value of the land before the variation, or V2, being $1,858,636.
10. I expect all these calculations are incorrect. The assessed V1 value necessary to calculate the LVC is unknown. The amount of the remissions (if any) is unknown.[76] The terms of the Crown lease prior to its variation are unknown. All these factors would have had a bearing on the assessment of V2. The different calculations nevertheless illustrate the error in approaching an assessment of V2 by 'working backwards' from the sale price of a property where a lease variation has occurred or there is potential (strong or weak) for it to occur. To do so is also to act contrary to the statutory assumption required for the purpose of assessing V2 that a lease variation cannot occur.
11. Referring to another proposition put forward by Mr Green,[77] the LVC is not 25% of the value of added development rights: it is 75% of the value added to the lease, regardless of why the change caused the lease to become more valuable.
12. Once the statutory assumption required for the purpose of assessing V2 is applied, it becomes apparent that all the sales that Mr Green adopted as "comparable sales" are not comparable at all. Each of them, including the two sales of the subject block, involved a sale of land where residential development is permissible under the Territory Plan and where a variation to the applicable Crown lease to permit residential use was, or was likely to be, approved. The market would not have paid the amounts that were paid for those blocks if the Crown lease could not have been changed for 84 years.
13. I accept the Commissioner's submission that where the task is to assess V2 with the assumption that the lease cannot be changed for the remainder of its term, the better comparable sales are sales of land where residential use is not permitted under the Territory Plan and where permissible uses are only offices or store or uses that are of similar value.
14. I recognise that Mr McInerney's comparable sales in the IZ Zone are not perfect: the Territory Plan is likely to change over the coming 84 years. But when those changes would occur and what the changes would be is speculative. The real market, in my view, would give limited value to speculative possibility. By contrast, for each of the sales upon which Mr Green relied, residential use under the Plan is already permissible. It follows, in my view, that in the absence of any land where one can be confident that residential use will not be permitted for the next 84 years and offices, store or other uses of similar value will continue for the next 84 years, the best comparable sales available are those where residential use is not permitted, and where the only uses permitted under the planning laws of the ACT are uses that are comparable in value with those permitted under the Crown lease for the subject block.
15. My conclusion that the better comparable sales are those that occurred in a different planning zone from that of the subject block arises from the fact that the uses permissible under the Crown lease for the subject block are materially the same as those permitted in the IZ Zone in which those sales occurred. In another case, and Donohue is an example, the better comparable sales may be sales in the same zone as the land in question because the uses under the applicable Crown lease and the uses under the zone in which the land in question sits are the same.
16. Mr Robens criticised the comparability of the blocks in Mr McInerney's basket on the grounds that they were too small or in inferior locations or because Mr McInerney had not given value to 'office use' which is permissible under the existing Crown lease. It was difficult to accept or apply those criticisms. Having regard to the GFA limitation in the Crown lease for the subject block, it was the similar GFA in the comparable sales blocks that mattered, not the overall size of the block. I was also not persuaded that the site of the subject block is in an inferior location for use as 'offices and store' in comparison to blocks in Hume, Fyshwick or Mitchell. Even if it is in a better location, I have no evidence to quantify the greater value, and I note that Mr McInerney attributed a value of $450/m² GFA to the subject block which was more than the estimated values that he attributed to many of his comparable sales. Last, I see no reason not to accept Mr McInerney's decision not to place value on potential use of the subject block for 'office' when use for 'store' is a higher and more valuable use, particularly where the Crown lessee is constrained by the GFA limitation and so would want to use the whole of the permissible GFA area for the highest and best use.
17. I turn next to the different approaches taken by Mr Green and Mr McInerney regarding the GFA limit under the Crown lease.
18. Mr Green contended that a valuation by reference to the whole site area, rather than any GFA limit, should occur because the statutory formula "requires you to value the capital sum of the lease".[78] This, he said, differs from the previous valuation regime that operated until 1 July 2011 which imposed a change of use charge.
19. I disagree. The change in the valuation regime from 1 July 2011 was to standardise certain valuations, defined as "s 276E chargeable valuations" and to distinguish them from valuations of the kind applicable in this case (defined as "s 277 chargeable variations"), but nothing in the legislation suggests a different approach to an assessment of V1 or V2 under section 277, save for the exclusion of improvements when assessing V1 and V2. Section 277 of the P&D Act was amended with effect from 1 July 2011 to refer to a "lease variation charge" rather than a "change of use charge", and the acronym "CUC" in the statutory formula and in section 277(2) was changed to "LVC", but the formula for calculating the charge and the definitions of "V1" and "V2" have not changed.[79] In particular, the statements in the definitions that "V1" and "V2" mean "the capital sum that the lease might be expected to realise", on which Mr Green relied, have not changed. In other words, Mr Green's claim that the focus is now upon the capital sum that the lease might realise, where previously the focus was on the 'before and after' uses, is not borne out by the legislation.
20. Where the definitions have not changed, it would seem that the change of name from 'change of use' charge to 'lease variation charge' was done more to reflect the fact that the focus is - and always has been - upon a variation of any kind to a Crown lease and not just a change of permissible use under the lease.
21. In any event, the definition of V2 requires an assessment of the capital sum that the lease might be expected to realise if "the lease were not varied during the remainder of its term". There is no constraint upon the kind of variation that applies (for example a change of use) for the purposes of the definition. It follows, in this case, that V2 must be assessed or determined as if clause 3(b) imposing a GFA limit of 4,800 m² "were not varied" for the remainder of the lease term.
22. I agree with Mr Green's statement that an assessment of V2 requires a valuation of the whole block (i.e. the capital sum of the lease) and that this requires consideration of "anything in Crown lease, not just the GFA", but I do not agree that the GFA limit is irrelevant. It is a consideration, like every other factor affecting an assessment of V2, to be taken into account. Mr Green's reliance on Notaras to suggest otherwise is misplaced. Indeed, the decision supports the use of a GFA limit as an appropriate unit of measurement when selecting comparable sales for the purpose of assessing V2 of the subject block.
23. In Notaras, the Crown lessee challenged the Commissioner's assessment of the UV of its block for the purposes of sections 6 and 10 of the Rates Act. Mr Green, giving evidence for the Crown lessee, provided an analysis of comparable sales using a rate per square metre of GFA. He did so because the existing development on the block was single storey only but, under the Territory Plan, the maximum permissible building height was two storeys and the maximum plot ratio was 100%. Mr Green contended that the use of GFA for the existing development "takes out the issue associated with two-storey development as opposed to single storey development GFA" to create "a common unit".[80]
24. Mr McInerney, giving evidence for the Commissioner, contended that GFA was not a useful means for comparing sales in that case because:

[I]t may not be the highest and best use of the site, so when you analyse those sales, that GFA could fluctuate. They may choose to actually knock down the building and do a completely different GFA. So using GFA is not a really good comparison.[81]

1. The Tribunal agreed with the Commissioner, stating:

[A]ssessing two properties by reference to their comparative GFA is meaningful only when the GFA is reflective of their highest and best use.[82]

1. Unlike in this case, the Crown lease under consideration in Notaras did not specify any maximum GFA: that was set by the applicable planning Code. The Tribunal reasoned (and I agree) that GFA is meaningful only when it is reflective of the highest and best use that is legally permissible. The GFA of the existing development in Notaras did not reflect the highest and best use of the block, hence the GFA of the existing development not being a useful comparator.
2. In this case, Mr McInerney was not suggesting that GFA was a useful comparator by reference to the GFA of the existing development. He was referring to the maximum GFA that is legally permissible on the subject block. That maximum is set, not by the Territory Plan, but by the Crown lease once the required assumption for V2 is made. Put another way, with the required assumption, the GFA limit in the Crown lease "is reflective" of the subject block's highest and best use.
3. I considered whether, notwithstanding the GFA limit, the Crown lease permits the balance of the subject block to be valuably used. I concluded it does not. Use of the subject block is limited to "offices and store". The value of land for either of those uses is, in my view, directly determined by the maximum GFA of a building or buildings because it would not be possible to use the subject block for "offices or store" otherwise than by means of a building constructed for either or both of those uses. I accept Mr McInerney's opinion that the balance of the subject block does not have any commercial value because there is no right to build on it. Two conclusions follow.
4. First, I reject the applicant's submission that the Commissioner erred by not attaching value to the location of the subject block, its zoning, and its proximity to the Tuggeranong Town Centre and to major residential commercial and residential developments. These factors of course attract value in the real market, but they do not attract value for the purposes of V2 because the Crown lessee cannot build on the subject block beyond 4800 m².
5. Second, flowing from my first conclusion, the maximum GFA is a much more useful unit of measurement than a value per square metre for the whole site area, when valuing the subject block by reference to comparable sales, because any part of the block beyond the permissible GFA cannot be used for "offices or store".
6. I nevertheless struggled with Mr McInerney's opinion that the balance of the subject block in the vicinity of the Tuggeranong Town Centre does not have any value under the existing Crown lease. It may not be available for a building, consequent upon the GFA limit, but clause 3(a) permits uses of the subject block for "purposes ancillary" to offices and store. The difficulty is that Mr Robens did not lead any evidence or make any submission about any ancillary permissible uses or their value. Mr Robens pinned his argument to Mr Green's opinion that the GFA limit is irrelevant. In the absence of any submission that the portion of the subject block beyond 4800 m2 has value for an ancillary purpose or any evidence as to what that value might be, I am not prepared to speculate. First, the Tribunal must proceed on evidence: it is an error of law not to do so. Second, the Tribunal cannot inject its own view about a value that should be attributed to the remaining portion of the subject block. In Challenger,[83] Croft J of the Supreme Court of Victoria said:

It is clear from the authorities that the role of the Court is not "to bring a third set of opinions into the arena" or to "piece together a valuation of [its] own".

1. I turn finally to Mr Robens' reliance on the AVO's earlier valuation of the subject block in 2007 which, he submitted, shows that the assessment of V2 in 2018 is too far 'out of line' to be 'credible'. This was the drawn from Mr Robens' submission that a deduction of the value of the improvements "shows a valuation of $4,736,000" which, he says, is 'considerably higher' than Mr McInerney's valuation of $2,160,000 made 10 years later.
2. The submission overlooks the AVO's stated valuation. The review dated 28 November 2007 from the AVO's Senior Valuer states:

The current Unimproved Value of the subject block having regard to the existing purpose clause as at 1 January [2007] was assessed at $1,925,000.

1. That sum is lower than Mr McInerney's valuation of $2,160,000 made 10 years later, not higher.
2. Also, the AVO's assessed V2 of $7,100,000 in 2007 was derived by using what is known as the Capitalisation of Net Income method, as was used by Mr Flannery in City Hill. This entails a valuation by reference to the income that can be derived from the leased land, rather than its value assessed by reference to comparable sales. The report states:

The subject property is considered to have a V2 before value of $7,100,000. This figure represents the net rental, allowing for recoveries, capitalised at an appropriate rate to reflect the perceived high quality of the existing Commonwealth tenant. Under the requirements of the Crown lease the subject property is considered to be fully developed and no additional development rights accrue to the property.

1. The report also notes that the rent from 1 April 2007 at the commencement of a three-year option was increased to $528,728 per annum with fixed annual reviews of 5%, and that the tenant remains responsible for 49.38% of outgoings. In other words, the majority of the AVO's V2 assessment was attributed to the generous rent income, rather than the unencumbered UV of the land.
2. This is consistent with Mr Green's report dated 17 November 2015,[84] in which he reviewed his valuation of the subject block "on a traditional valuation approach". He explains that "under this approach we have capitalised the value of the property by applying a market rent and market yield consistent with the date the DA was lodged (July 2015)." Mr Green noted that the net rent (i.e. passing market rent less allowances such as rates payable) as at July 2015 was $742,853 per annum. Allowing for this income stream, Mr Green estimated the UV (or DLV) for the whole of the subject block to be $3,830,000. He attributed $2,000,000 of that to what he described as the "existing archives site" and $1,830,000 to the unimproved remainder of the subject block.
3. If no commercial value is attributed to the remainder of the subject block because of the GFA limitation in the Crown lease, Mr Green's estimate of the UV of the subject block ($2,000,000) is very close to the AVO's assessment of $1,925,000 and Mr McInerney's assessment of $2,160,000. I note also Mr McInerney's evidence that values of commercial property in Tuggeranong have not materially changed over the past 10 years.
4. I should note that no one relied on the Capitalisation of Net Income method for the purpose of assessing V2 as at the Development Date, presumably for the simple reason that by that date the lease had ended or was about to end. The building was demolished shortly after the Development Date.[85]

1. Where I am not persuaded that any of the comparable sales upon which the applicant relied are valid comparators for the purpose of assessing V2, and where I reject the submission that the GFA limit under the Crown lease is irrelevant, I am left with no relevant evidence contrary to that advanced by the Commissioner. Where I accept that the approach taken by Mr McInerney correctly reflects the statutory assumptions required for the purposes of assessing V2,[86] the decision under review will be confirmed.

[1] Springrange Pty Ltd v ACT and ACT Planning and Land Authority [2010] ACTCA 17

[7] City Hill Pty Ltd (ACN 064 633 558) v ACT Planning and Land Authority and Anor [2015] ACTSC 40 at [6] - [7]. See also Donohue v ACT Planning and Land Authority [2014] ACAT 39 at [28]

[8] I do not accept the applicant's submission, contrary to authority, that the valuations of V1 and V2 for the purpose of calculating a LVC should be done as at the day prior to the Development Date.

[9] Planning and Development (Remission of Lease Variation Charges-Economic Stimulus and Sustainability) Determination 2016 (No 1), DI2016 - 28

[10] Planning and Development (Remission of Lease Variation Charges-Economic Stimulus and Sustainability) Determination 2016 (No 1), DI2016 - 28

[14] I could not find any evidence about an amended assessment of the LVC arising from the amended variation of the Crown lease approved on 14 June 2018. Also, the applicant applied for review of the reconsideration decision. However, for the reasons that follow in this decision, if an amended assessment was made arising from the amended variation, it could not have made any difference to the calculation of V2, which was the only issue to be determined in this proceeding. I also doubt that the reduction of permissible dwellings under the varied Crown lease from 154 to 151 would have made any material difference to the calculation of V1 and hence the LVC.

[15] Planet Red Pty Ltd v Commissioner of ACT Revenue [2017] ACAT 18 at [13] - [26]

[16] Planning and Development Act 2007, section 276

[17] Applicant's submissions dated 22 February 2019 at paragraph 3

[18] City Hill Pty Ltd (ACN 064 633 558) v ACT Planning and Land Authority and Anor [2015] ACTSC 40 at [69] - [73]

[19] Maurici v Chief Commissioner of State Revenue [2003] HCA 8 at [16], quoted in City Hill at [72]. See generally Alan Hyam, The Law Affecting Valuation of Land in Australia (5th edition) 2014, at pages 185 - 210

[20] Brewarrana Pty Ltd c Commissioner of Highways (No 1) (1973) 32 LGRA 170 at 180

[21] Transcript of proceedings 21 January 2019, page 34 at lines 19-21; Report dated 4 July 2018, page 43, reconciliation of sales evidence.

[22] Transcript of proceedings 21 January 2019, page 20 at lines 11-12

[23] Transcript of proceedings 21 January 2019, page 25 at lines 39-40

[24] Transcript of proceedings 21 January 2019, page 26 at lines 2-3

[25] Transcript of proceedings 21 January 2019, page 61, at lines 20-34

[26] Transcript of proceedings 21 January 2019, page 67 at line 4

[27] Notaras v Commissioner for ACT Revenue [2016] ACAT 19 at [26] - [28]. On appeal, the Appeal Tribunal substituted a different assessment of the UV but did not disturb the original Tribunal's statements about the use of GFA. See Estate of Anthi John Notaras v Commissioner for ACT Revenue [2017] ACAT 2

[28] Transcript of proceedings 21 January 2019, page 67 at lines 7-8

[29] Transcript of proceedings 21 January 2019, page 67, lines 4 - 9

[30] Transcript of proceedings 21 January 2019, page 66 at lines 42-46, page 67 at lines 1-2

[31] Transcript of proceedings 21 January 2019, page 37 at line 14

[32] Transcript of proceedings 21 January 2019, page 47 at lines 20 - 24

[33] Report dated 4 July 2018, page 45; transcript of proceedings 21 January 2019, page 37 at lines 39-43

[34] Transcript of proceedings 21 January 2019, page 34 at lines 17-18

[35] Report dated 4 July 2018, page 45; transcript of proceedings 21 January 2019, page 38 at lines 24-26; page 47 at lines 5 - -18

[36] Transcript of proceedings 21 January 2019, page 34 at lines 39-46

[37] Transcript of proceedings, 21 January 2019, page 54 at line 22, page 55 at line 2

[38] Transcript of proceedings 21 January 2019, page 39 at lines 11 - 31

[39] Transcript of proceedings 21 January 2019, page 39 at lines 6 - 44

[40] Transcript of proceedings 21 January 2019, page 41 at lines 38 - 41

[41] Transcript of proceedings 21 January 2019, page 73 at lines 40 - 44

[42] Transcript of proceedings 21 January 2019, page 63, lines 23 - 29

[43] Applicant submissions in reply dated 12 March 2019, paragraph 1

[44] Transcript of proceedings 21 January 2019, page 63 at lines 39 - 45

[45] Applicant's closing submissions dated 22 February 2019

[46] Applicant's closing submissions dated 22 February 2019, paragraph 10

[47] Applicant's closing submissions dated 22 February 2019, paragraph 11

[48] Applicant's closing submissions dated 22 February 2019, paragraph 18f

[49] I agree that that assumption is reasonably made.

[50] Applicant's closing submissions dated 22 February 2019, paragraph 41

[51] Transcript of proceedings, 22 January 2019, page 103, lines 24-27; page 130, line 2

[52] Spencer v The Commonwealth (1906) 5 CLR 418, 440 - 441, per Isaacs J

[54] See also Notaras v Commissioner for ACT Revenue [2016] ACAT 19 at [25]

[55] Planet Red Pty Ltd v Commissioner of ACT Revenue [2017] ACAT 18

[56] Gungahlin Golf Investments Pty Ltd v Commissioner for ACT Revenue [2017] ACAT 96

[57] Gungahlin Golf Investments Pty Ltd v Commissioner for ACT Revenue [2017] ACAT 96 at [14]

[58] Perpetual Trustee Co Ltd v Valuer-General [2006] SASC 216; (2007) 95 SASR 338 at [52]

[59] Challenger Property Asset Management Pty Ltd & Anor v Stonnington City Council & Anor [2011] VSC 184 at [68]

[60] City of Castlemaine v Scott (No 2) [1973] VicRp 28; [1973] VR 277

[61] Transcript of proceedings 21 January 2019, page 51 at lines 25-31

[62] Pearce and Geddes, Statutory Interpretation in Australia (7th edition), paragraph 2.26, and the cases there cited

[63] Turner v Minister of Public Instruction [1956] HCA 7 at [11]

[64] It was also the assumed under paragraph (a)(iii) the definition of V2 the rent payable throughout the remainder of the term will be a nominal rent, nothing arose in this case on that issue.

[65] Donohue v ACT Planning and Land Authority [2014] ACAT 39

[71] Guisida Pty Ltd v Commissioner for ACT Revenue (No 2) [2018] ACTSC 178 at [34]

[72] Australian Capital Territory, Parliamentary Debates, Legislative Assembly for the ACT, 5 May 2011, 1878-1879 (Katy Gallagher)

[73] Donohue v ACT Planning and Land Authority [2014] ACAT 39 at [60]

[74] Transcript of proceedings 21 January 2019, page 73 at line 40

[76] The instruments that applied to remit the assessed LVC for the subject block came into effect in 2016 after the sale of the Phillip Block

[77] Transcript of proceedings 21 January 2019, page 63 at lines 39 - 45

[78] Transcript of proceedings 21 January 2019, page 61 at line 28

[79] Planning and Development Act section 277

[83] Challenger Property Asset Management Pty Ltd v Stonnington City Council [2011] VSC 184 at [17]. See also Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 2 at [157]

[85] Transcript of proceedings 22 January 2019, page 113 at lines 14-23

[86] Olefines Pty Ltd v Valuer-General (NSW) [2018] NSWCA 265 at [25]