Adams v Valuer General

The subject property 9The subject property is located in Seal Rocks, a coastal settlement on the mid-north coast of New South Wales being approximately 275 kilometres north-east of Sydney. 10The subject property fronts onto but is elevated above Kinka Road, facing the beach with panoramic water views. However, Kinka Road is also elevated above beach level at this point such that access to the beach from the subject property requires pedestrians to cross Kinka Road and then either walk around the elevation or attempt a descent by climbing. Furthermore, vehicular access to Kinka Road from the subject property is an issue upon which the parties differ and which I consider further below. 11The subject property is improved by a modern dwelling. 12The parties did not appear to consider the highest and best use for the subject property which I have assumed to be the current residential use. 13Having a site area of 537.50sqm, the subject property is an irregularly shaped block which rises towards the rear. 14The subject property is zoned 2 Village under the Great Lakes Local Environmental Plan 1996. 15The subject property comprises Lot 4 Section 2 in Deposited Plan No. 758900.

The issues 16In addition to the substantive issue of land value, vehicular access to Kinka Road from the subject property and the impact upon the Seal Rocks property market of the passage of time are issues upon which the parties differ. 17Concerning access to Kinka Road from the subject property, the parties agreed that the potential for legal and physical pedestrian access and vehicular access existed as at the 2011 Base Date. 18The parties also agreed that the potential for legal and physical pedestrian access existed as at the 2009 Base Date and as at the 2010 Base Date. 19The parties differed concerning the potential for legal and physical vehicular access as at the 2009 Base Date and as at the 2010 Base Date, principally arising from differing opinions concerning a DA granted to 14 Kinka Road, Seal Rocks which was subject to dispute in this Court and to differing opinions concerning construction feasibility. 20Evidence tendered in this regard was inconsistent and unclear, other than to establish that uncertainty may have been likely to exist between a hypothetical vendor and a hypothetical purchaser as at the 2009 Base Date and as at the 2010 Base Date concerning this issue. 21Given the existence of such uncertainty, I consider it likely that the subject property may have transacted between a hypothetical vendor and a hypothetical purchaser as at the 2009 Base Date and as at the 2010 Base Date at a price below that at which it may have transacted had such uncertainty not existed, adopting with the concepts of transaction and price described by Griffith CJ in Spencer v Commonwealth (1907) 5 CLR 418. 22Concerning the impact upon the Seal Rocks property market of the passage of time, Mr Gould and Mr Hood, the expert valuer witnesses to whom I will refer further later, gave the following oral evidence: Fin Year Mr Gould Mr Hood 07/08 Down Flat 08/09 Down Flat 09/10 Down Flat 10/11 Down Flat 11/12 Down Down 12/13 Flat Down

23While Mr Gould and Mr Hood concurred that the Seal Rocks property market was trending "down" at the 2011 Base Date, they differed as to the direction at the 2009 Base Date and 2010 Base Date though concurred that the direction was not up. 24The valuation reports tendered by Mr Gould were ambiguous concerning the impact upon the Seal Rocks property market of the passage of time. 25Mr Hood made specific adjustments for the passage of time to the potentially comparable sales in the valuation reports tendered, to which I refer further below and which may be summarised as follows: Address Contract Base Report Oral Date Date Adjmt Evid 64 Newman Avenue, Blueys Beach 4/08 7/09 -9% Flat 32 Coast Avenue, Boomerang Beach 10/09 7/09 0% Flat 30 Coast Avenue, Boomerang Beach 3/10 7/09 0% Flat 36 Kinka Road, Seal Rocks 11/07 7/09 -5% Flat

38 Kinka Road, Seal Rocks 6/10 7/10 0% Flat 32 Newman Avenue, Blueys Beach 10/10 7/10 0% Flat 30 Coast Avenue, Boomerang Beach 3/10 7/10 0% Flat 32 Coast Avenue, Boomerang Beach 10/09 7/10 0% Flat

38 Kinka Road, Seal Rocks 6/10 7/11 -13% Flat 32 Newman Avenue, Blueys Beach 10/10 7/11 -8% Flat 30 Coast Avenue, Boomerang Beach 3/10 7/11 -9% Flat 32 Coast Avenue, Boomerang Beach 10/09 7/11 -9% Flat

26Mr Hood appears consistent in his adjustment for the passage of time on the potentially comparable sales in his valuation report and in his oral evidence for the 2010 Base Date, inconsistent for the 2011 Base Date and mixed for the 2009 Base Date. 27Accordingly, I consider the written and oral evidence provided to be inconsistent concerning the trend in the Seal Rocks property market as at the respective Base Dates.

Valuation by comparable sales evidence 28It is well established that, if comparable sales are available, the direct comparison of sales evidence approach is the conventional method of valuation (Graham Trilby Pty Ltd v Valuer General [2009] NSW LEC 1087 at 41(Trilby); Redeam Pty Ltd v South Australian Land Commission (1977) 40 LGRA 151 at 156; Riverbank Pty Ltd v Commonwealth (1974) 48 AJLR 483 at 484; Marroun v Roads and Maritime Services [2012] NSWLEC 199 at 196 (Marroun); El Boustani v Minister Administering the Environmental Planning and Assessment Act 1979 [2012] NSWLEC 266 at 23 (El Boustani); Tenstat Pty Limited v Valuer General / Woolworths Limited v Valuer General [2012] NSWLEC 1361 at 35 (Tenstat). 29The process of undertaking a valuation using the direct comparison of sales evidence approach comprises several steps, including the: (a)accumulation; (b)analysis; (c)adjustment; and (d)application of potentially genuinely comparable sales (Trust Company Limited v Minister Administering the Crown Lands Act 1989 [2012] NSWLEC73 (Trust Company); Marroun, 197; El Boustani, 24; Tenstat, 36). 30A Court depends upon the established expertise of valuer witnesses called on both sides of the case (Marroun, 197). 31As Sugerman J observed in Bingham v Cumberland County Council (1954) 20 LGR (NSW) 1, at 18-19: The valuer, in arriving at his opinion in these difficult matters may have to draw upon his general knowledge and experience, including perhaps experience in other situations which, although lacking in complete comparability, may yet provide an experienced valuer with guidance and suggestions as to the general approach which may be made and as to considerations which may become relevant. 32The accumulation of potentially genuinely comparable sales seeks to identify and establish a pool of relevant comparable sales from which information may be deduced concerning the value of the subject property (Trust Company,110 and 111;Marroun, 198; El Boustani, 25; Tenstat, 39). 33Generally the competing parties produce lists which the Court must sift to identify some which are "truly comparable", or a "reasonably representative" sample and "relevant and sufficient in volume" (Maurici v Chief Commissioner of State Revenue [2003] HCA 8; (2003) 212 CLR 111, at 121). 34Where the comparable sales differ in substantial ways from the subject property, a process of reasoning is required to establish their utility or otherwise (Leichhardt Municipal Council v Seatainer Terminals (1981) 48 LGRA 409, at 414). 35In Brewarrana v Commissioner of Highways (No 2) 6 SASR (Brewarrana) at page 551, Wells J observed: there is no hard and fast rule by the application of which a valuer may, whatever the circumstances, draw the line that clearly separates the sales that are comparable from those that are not. 36Further, Wells J went on to observe that: The evidence in this case suggests strongly to my mind that, at the initial stages, a valuer will almost certainly look at all known sales in potentially relevant areas, if for no other reason than to discern patterns of prices and changes in price levels over important periods. 37In Trust Company, Pain J identified a failure to set out a clear stepwise process enabling scrutiny of the facts and assumptions relied upon by the valuer in reaching his conclusions (including identification of transactions of potentially low comparability) (paragraph 115) as leading to that part of the valuation report not being given any weight (paragraph 119). 38The analysis of potentially genuinely comparable sales provides a common basis of measurement by seeking to convert all potentially comparable sales to a common basis of expression such as a unitary rate (rate per square metre, rate per hectare, etc), improved or unimproved (through allowance for the absence or existence of improvements, etc) and so forth (El Boustani, 26; Tenstat, 45). 39In Trust Company, Pain J identified a failure to set out a clear stepwise process enabling scrutiny of the facts and assumptions relied upon by the valuer in reaching his conclusions (including an absence of explicit reasoning in analysis of comparable sales) (paragraph 115) as leading to that part of the valuation report not being given any weight (paragraph 119). 40The adjustment of potentially genuinely comparable sales acknowledges the fact that no two properties are ever identical and seeks to convert those potentially comparable sales to a hypothetical expression of value as a unitary rate in the context of the subject property through the reflection of differences (such as size, location, use, date, etc) between the respective potentially comparable sales and the subject property (Trust Company, 112; Marroun, 202; El Boustani, 27; Tenstat, 47). 41Because properties are never identical, explicit and/or implicit adjustment for differences is obviously necessary but caution is required through making as few adjustments as possible, in a consistent manner, to ensure the reliability of the comparable sale when related to the subject property, with too much adjustment potentially rendering the comparable sale unsafe to use (Trilby [2009] at 36, Brewarrana). 42Therefore, as a matter of general valuation principle, fewer adjustments may be preferred to more adjustments and smaller adjustments may be preferred to larger adjustments in rendering comparable sales safe for use. 43In Brewarranaat page 551, Wells J observed: It is, in my view, all a matter of degree: some adjustment is always necessary; too much adjustment will render it unsafe to use a sale, subject to such a degree of adjustment, for the purpose of the reasoning process in the comparable sales method. 44Caution in adjustment is required as too much adjustment renders the use of comparables unsafe (Trilby [2009], 36). 45Adjustment is a matter of degree, which must be carefully considered in each case (Marroun, 202). 46Caution is, therefore, required where large explicit and/or implicit adjustments are required, with particular caution required for large implicit adjustments (Trilby [2009], 36). 47Further, reflecting the significant roles of skill, experience and personal assessment in the adjustment process, the scope for differences in the quantum and direction of adjustment between valuers can be considerable (per Biscoe J in Holcim (Australia) Pty Ltd v Valuer General [2009] NSWLEC 225 (Holcim)). 48Accepted valuation practice permits both explicit and implicit adjustment for differences, such as in location, area and time, to enable valuers to have evidentiary comparable values which, following adjustment, account for the various differences with the subject property. Such adjustment is generally based on a reasoning process drawing on the skill and experience of the valuer and undertaken to derive an opinion of value through a deductive process (Trilby [2009], 35;Holcim; Marroun, 204). 49Explicit adjustment was preferred by Bly C in Jessica Investments Pty Ltd v Valuer General [2008] NSWLEC 1375 at 6 (Jessica): Also, in my opinion, if a valuer does not have a final land value in mind, the detailed percentage adjustment approach could be utilised and revealed in an attempt to provide transparency. Otherwise the valuer's less transparent approach would be to identify a range of factors that distinguish in one way or another, the comparable sale from the subject property and, based on the valuers own judgment simply assert the land value. 50This view was echoed by Pepper J in Tomago Aluminium Company Pty Limited v Valuer General [2010] NSWLEC 4 at [45]: To this it may be added that it is necessary to make explicit adjustments for differences so that the adjustment process is sufficiently logical. An implicit process comprising a single adjustment, rather than separately itemised and reasoned adjustments, risks rejection for want of transparency. 51A transparent process of explicit adjustment leading to an explicable assessment of value is preferred to an opaque process of implicit adjustment leading to an assertion of value (Jessica, 6; Marroun, 206). 52The assumptions made in deriving a hypothetical expression of value as a unitary rate in the context of the subject property should be justified by a clearly articulated logical and transparent reasoning process (El Boustani, 53). 53In Trust Company, Pain J identified a failure to set out a clear stepwise process enabling scrutiny of the facts and assumptions relied upon by the valuer in reaching his conclusions (including an absence of explicit reasoning in adjustment of comparable sales) (paragraph 115) as leading to that part of the valuation report not being given any weight (paragraph 119). 54Pain J identified: A clearly articulated logical reasoning process which affords transparency and demonstrates an appropriate level of support for each of the key assumptions made as lacking in a valuers report to which Her Honour did not then attribute any weight (Trust Company, 122 and 124). 55Such adjustment process should work forwards from the comparable sales to derive an opinion of value, rather than working backwards to justify an opinion of value previously formed (per Jagot J in Graham Trilby Pty Limited v Valuer General [2008] NSWLEC 217 at paragraph 25). 56The application of those potentially genuinely comparable sales to the subject property seeks to determine the value of the subject property through a consideration of the relevance (such as being limited, indirect or direct) of the unitary rate derived from those adjusted comparable sales relative to the subject (Trust Company, 114; Marroun, 208; El Boustani, 28; Tenstat, 62). 57While all comparable sales evidence may be considered relevant and so cannot be disregarded, the level of relevance of different comparable sales to the subject property may vary leading to the valuer attributing differing weight to different comparable sales (Marroun, 208). 58In Trust Company, Pain J identified a failure to set out a clear stepwise process enabling scrutiny of the facts and assumptions relied upon by the valuer in reaching his conclusions (paragraph 115) as leading to that part of the valuation report not being given any weight (paragraph 119).

The Valuation evidence 59Mr Gould, Registered Valuer No 1236, tendered as evidence three reports on the subject property and gave expert evidence on behalf of the Applicant, assessing the Land Value at the respective Base Dates as follows: Date of Report Base Land Value Exhibit Date 10 July 2013 2009 $1,250,000 ($2,326psm) B 10 July 2013 2010 $1,100,000 ($2,047psm) A 10 July 2013 2011 $1,180,000 ($2,195psm) C 60Mr Hood, Registered Valuer No 10869, tendered as evidence three reports on the subject property and gave expert evidence on behalf of the Respondent, assessing the Land Value at the respective Base Dates as follows: Date of Report Base Land Value Exhibit Date 9 July 2013 2009 $1,800,000 ($3,349psm) 1 5 July 2013 2010 $1,900,000 ($3,535psm) 2 5 July 2013 2011 $1,700,000 ($3,163psm) 3 and considering the land values assessed by the Respondent of: 2009 Base Date $1,700,000 ($3,163psm) 2010 Base Date $1,530,000 ($2,847psm) 2011 Base Date $1,450,000 ($2,698psm) to be supported by the market evidence and to be correct. 61Each valuer also contributed to a Joint Report: Date of Joint Report Base Date Exhibit 26 July 2013 2009 D 26 July 2013 2010 E 26 July 2013 2011 F 62Each valuer undertook a valuation by reference to comparable sales evidence.

Accumulation of potentially comparable sales 63Six common potentially comparable sales were identified by both valuers, being: 30 Coast Avenue, Boomerang Beach 32 Coast Avenue, Boomerang Beach 36 Kinka Road, Seal Rocks 38 Kinka Road, Seal Rocks 32 Newman Avenue, Blueys Beach 64 Newman Avenue, Blueys Beach 64Mr Gould identified two further potentially comparable sales, being: 36 Coast Avenue, Boomerang Beach 20 Kinka Road, Seal Rocks discarding three potentially comparable sales in Hawks Nest.

Analysis of potentially comparable sales 65Mr Gould analysed potentially comparable sales explicitly (such as through stated deductions for improvements, but without subdivision of the total deduction) to derive a land value for each with some also expressed on a common basis as a unitary rate (being $ psm land value). 66Mr Hood analysed potentially comparable sales implicitly to assert a land value for each, with no common basis of expression as a unitary rate. 67Mr Gould and Mr Hood's analysis of potentially comparable sales, expressed as $ psm land value, may be summarised as follows: Address Mr Gould Mr Hood 30 Coast Avenue, Boomerang Beach $3,309 $3,331 32 Coast Avenue, Boomerang Beach $3,309 $3,309 36 Coast Avenue, Boomerang Beach $2,779 N/A 20 Kinka Road, Seal Rocks $1,043 N/A 36 Kinka Road, Seal Rocks $3,364 $3,364 38 Kinka Road, Seal Rocks $3,525 $3,519 32 Newman Avenue, Blueys Beach $3,456 $3,281 64 Newman Avenue, Blueys Beach $5,193 $5,057

Adjustment of potentially comparable sales 68Mr Gould adjusted some but not all analysed potentially comparable sales explicitly to derive a hypothetical expression of value as a unitary rate, being $ psm land value, in the context of the subject property. 69I note that Mr Gould's adjustment of analysed potentially comparable sales was substantial and commonly 40%, being variously described as representing a combination of Seal Rocks, timbered/bushland/absolute beach frontage and access, but that the composition of such percentage adjustment was not individually itemised nor was it clear whether adjustment had been made for the passage of time, area, topography, views and public reserve proximity. 70Having regard to the evidence tendered, I do not find the assumptions underlying Mr Gould's adjustment of analysed potentially comparable sales to be justified by a clearly articulated logical and transparent reasoning process. 71Mr Hood adjusted analysed potentially comparable sales explicitly for the passage of time to derive a hypothetical expression of value as a unitary rate, being the land value for the potentially comparable sale. 72I note that Mr Hood then provided a description of matters requiring adjustment relative to the subject property, being variously described as adjustment for passage of time, size, form of beach frontage, access, topography, aspect/views and public reserve, but did not make an explicit numeric adjustment for such matters nor apparent reference to adjustment for location.

Application of potentially comparable sales 73Mr Gould briefly considered the relevance and relativity of the unitary rate derived from those adjusted potentially comparable sales to the subject property to derive his assessment of land value as at each Base Date for the subject property. 74Mr Hood provided a clear explanation of those comparable sales considered superior or inferior before simply asserting "By direct comparison the subject would be $x". 75Mr Hood then provided a valuation rationale considering the asserted land value for the subject property from each analysed adjusted potentially comparable sale to derive his assessment of land value as at each Base Date for the subject property.

Consideration of the comparable sales evidence 76Having regard to area, date of sale, location, topography, vehicular access, beach access, views and proximity of public reserve observed during the view and to the evidence tendered, I consider that the comparable sales may be related to the subject property as follows. 7730 Coast Avenue, Boomerang Beach is comparable to the subject property in terms of views and absence of public reserve proximity. However, the property is superior in terms of location, topography, vehicular access and beach access but is significantly larger than the subject property, transacting in March 2010. Having regard to the differences between this sale and the subject property, I consider this sale to be of limited relevance. 7832 Coast Avenue, Boomerang Beach is comparable to the subject property in terms of views. However, the property is superior in terms of location, topography, vehicular access and beach access but is significantly larger than the subject property and is adjacent a public walkway, transacting in October 2009. Having regard to the differences between this sale and the subject property, I consider this sale to be of limited relevance. 7936 Coast Avenue, Boomerang Beach is comparable to the subject property in terms of views and absence of public reserve proximity. However, the property is superior in terms of location, topography, vehicular access and beach access but is significantly larger than the subject property, transacting in January 2013. Having regard to the differences between this sale and the subject property, I consider this sale to be of limited relevance. 8020 Kinka Road, Seal Rocks is comparable to the subject property in terms of location, vehicular access, views and absence of public reserve proximity. However, the property is superior in terms of beach access but is significantly larger and has poorer topography, transacting in March 2013. Having regard to the similarities between this sale and the subject property, I consider this sale to be a directly relevant comparable sale. 8136 Kinka Road, Seal Rocks is comparable to the subject property in terms of location, area, views and absence of public reserve proximity. However, the property is superior in terms of vehicular access and beach access but has poorer topography, transacting in November 2007. Having regard to the similarities between this sale and the subject property, I consider this sale to be a directly relevant comparable sale. 8238 Kinka Road, Seal Rocks is comparable to the subject property in terms of location, area, topography, views and absence of public reserve proximity. However, the property is superior in terms of vehicular access and beach access, transacting in June 2010. Having regard to the similarities between this sale and the subject property, I consider this sale to be a directly relevant comparable sale. 8332 Newman Avenue, Blueys Beach is comparable to the subject property in terms of area and views. However, the property is superior in terms of location, topography, vehicular access and beach access but is adjacent a public reserve, transacting in October 2010. Having regard to the differences between this sale and the subject property, I consider this sale to be of limited relevance. 8464 Newman Avenue, Blueys Beach is comparable to the subject property in terms of area, views and absence of public reserve proximity. However, the property is superior in terms of location, topography, vehicular access and beach access, transacting in April 2008. Having regard to the differences between this sale and the subject property, I consider this sale to be of limited relevance. 85Accordingly, I consider the comparable sales at 20, 36 and 38 Kinka Road, Seal Rocks to be directly relevant comparable sales. 86Further, I consider the comparable sales at 30, 32 and 36 Coast Avenue, Boomerang Beach and at 32 and 64 Newman Avenue, Blueys Beach to be of limited relevance. 87As noted above, in Mr Gould and Mr Hood's analysis of potentially comparable sales expressed as $ psm land value, those comparable sales considered directly relevant may be summarised as follows: Address Mr Gould Mr Hood 20 Kinka Road, Seal Rocks $1,043 N/A 36 Kinka Road, Seal Rocks $3,364 $3,364 38 Kinka Road, Seal Rocks $3,525 $3,519

88Mr Gould and Mr Hood's analysis of those comparable sales considered directly relevant requires adjustment to derive a hypothetical expression of value as a unitary rate, being $ psm land value, in the context of the subject property. 89While 20 Kinka Road, Seal Rocks is a directly relevant comparable sale, its transaction in March 2013 requires adjustment for the passage of time, being approximately 1.75-3.75 years after the respective Base Dates. In the absence of consistent evidence concerning the impact upon the Seal Rocks property market of the passage of time, such adjustment is considered to not be possible. 90Similarly, 36 Kinka Road, Seal Rocks is a directly relevant comparable sale, but its transaction in November 2007 requires adjustment for the passage of time, being approximately 1.50-3.50 years before the respective Base Dates. In the absence of consistent evidence concerning the impact upon the Seal Rocks property market of the passage of time, such adjustment is considered to not be possible. 91Having regard to the directly relevant comparable sale at 38 Kinka Road, Seal Rocks, adjustment is required to reflect the differences in vehicular access and beach access relative to the subject property and for the passage of time relative to the respective Base Dates. 92As at the 2009 Base Date, uncertain vehicular access and inferior beach access require downward adjustment of the analysed land value psm of $3,519-$3,525 with either no adjustment or upward adjustment required to reflect the passage of time. Having very carefully considered the evidence tendered, I do not consider such adjustment to be of the magnitude of 30%-35% that would be required to maintain Mr Gould's assessment of land value but consider the magnitude of adjustment of 10% required to maintain the Respondent's contended assessed land value may be supported. 93As at the 2010 Base Date, uncertain vehicular access and inferior beach access require downward adjustment of the analysed land value psm of $3,519-$3,525 with limited, if any, adjustment required to reflect the passage of time given the proximity of the transaction date to the Base Date. Having very carefully considered the evidence tendered, I do not consider such adjustment to be of the magnitude of 40%-45% that would be required to maintain Mr Gould's assessment of land value but consider the magnitude of adjustment of 19% required to maintain the Respondent's contended assessed land value may be supported. 94As at the 2011 Base Date, inferior beach access requires downward adjustment of the analysed land value psm of $3,519-$3,525 with either no adjustment or downward adjustment required to reflect the passage of time. Having very carefully considered the evidence tendered, I do not consider such adjustment to be of the magnitude of 35%-40% that would be required to maintain Mr Gould's assessment of land value but consider the magnitude of adjustment of 23% required to maintain the Respondent's contended assessed land value may be supported.

Findings 95I note that under Section 40(2) of the Act, the Applicant has the onus of proof. 96Mr Gould gave evidence on behalf of the Applicant, assessing the Land Value at the respective Base Dates as follows: Base Date Land Value 2009 $1,250,000 2010 $1,100,000 2011 $1,180,000 97While Mr Gould accumulated and analysed potentially comparable sales, the assumptions underlying Mr Gould's adjustment of analysed potentially comparable sales was not justified by a clearly articulated logical and transparent reasoning process. 98Further, Mr Gould's application of the adjusted potentially comparable sales to the subject property was notably brief, given the magnitude of adjustment made. 99Therefore, I do not accept Mr Gould's assessments of land value at the respective Base Dates. 100Having regard to the evidence presented, I do not consider that the Applicant has discharged the onus of proof required by section 40(2) of the Act and confirm the decision to which the appeal relates.

Orders 101The orders of the Court are that: (1)The appeal by the Applicant is dismissed. (2)The land value for the property known as 12 Kinka Road, Seal Rocks is: Base Date Land Value 1st July 2009 $1,700,000 1st July 2010 $1,530,000 1st July 2011 $1,450,000 (3)No Order is made as to costs.

Dr David Parker Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 January 2014