Boensch v Valuer-General of New South Wales

Cases Cited: Boensch v Parramatta City Council (No 2) [2013] NSWLEC 1262
Boensch v Valuer-General of New South Wales [2025] NSWLEC 1458
Hamod v State of New South Wales and Anor [2011] NSWCA 375
ISPT Pty Ltd v Valuer General (NSW) (2009) 165 LGERA 25; [2009] NSWCA 31
Lam v Liu [2025] NSWCA 254
Parramatta City Council v Valuer-General and Anor (1964) 10 LGRA 160

Category: Principal judgment

Parties: Franz Boensch (Appellant)
Valuer-General of New South Wales (Respondent)

Representation: Counsel:
F Boensch, self-represented (Appellant)
B Goodyear (Respondent)
Solicitors:
Self-represented (Appellant)
Crown Solicitor’s Office (Respondent)

File Number(s): 2025/00278657

Publication restriction: Nil

JUDGMENT

Nature of Proceedings

1. In these proceedings Franz Boensch (Appellant) has appealed a decision of an Acting Commissioner of this Court dismissing an appeal from the Valuer-General of New South Wales’ (Valuer**-**General) determination of value of the Appellant’s land pursuant to s 6A(1) of the Valuation of Land Act 1916 (NSW) (VL Act) for the 1 July 2022 valuation period base date (Valuation Base Date).

2. The Acting Commissioner dismissed the appeal and delivered reasons for the decision in Boensch v Valuer-General of New South Wales [2025] NSWLEC 1458 (Decision).

3. As identified in his Summons the Appellant appeals from the whole of the Decision and seeks the following orders:

1 If leave is required. Leave to appeal from the whole of the decision below.

2 Appeal allowed.

3 Judgment/Order of the court below be set aside.

4 Order an adjusted Land Value of $675,000 for this property or

5 Alternatively the respondents [sic] result of 289 usable m2 [sic] times $2100m2 [sic] on the respondents [sic] evidence.

6 costs

7 damages

Facts

4. The Appellant’s land, the subject of the valuation dispute, is Lots 37 and 38 in DP 14244, known as 255 Victoria Road, Rydalmere NSW 2116 (Subject Land). The Subject Land adjoins Subiaco Creek and is zoned IN2 Light Industrial under the Parramatta Local Environment Plan 2011 (NSW).

5. In setting out the factual circumstances relevant to her determination, the Acting Commissioner outlined at [2] of the Decision the valuation history preceding the Appellant’s application to this Court:

(1) On [27] (sic) July 2022 the Valuer-General issued a Notice of Valuation for the Land as at the Base Date valuing the Land pursuant to s 6A of the VL Act at $1,400.000 (Valuation)

(2) On 18 March 2023 the Applicant lodged an objection to the Land value pursuant to s 29(3A) of the VL Act.

(3) On 30 March 2023 Mr Murray Allen, registered Valuer employed by the Valuer-General makes a recommendation that the Land Value be reduced to $1,260,000.

(4) On 3 July 2023 the Applicant lodges a Further Objection to the changed Land Value of $1,260,000 pursuant to s 29(3A) of the VL Act.

(5) On 19 July 2023 the Valuer-General allows a partial objection to the Land Value reducing it to $1,260,000 pursuant to s 35C(2) of the VL Act.

(6) On 18 September 2023 pursuant to s 37(1) of the VL Act the Applicant files an appeal in this Court, and the appeal is filed in accordance with the time provisions in s 38(1) of the VL Act.

6. In the proceedings before the Acting Commissioner, the Appellant sought an order that the Subject Land be valued at $675,000 at the Valuation Base Date. The Valuer-General valued the Subject Land at $1,260,000.

7. In dismissing the appeal, the Acting Commissioner accepted the evidence of the Valuer-General’s hydrology and valuation experts: see [40] and [43]-[45] of the Decision. The Acting Commissioner held that the Appellant had not discharged his onus in accordance with s 40(2) of the VL Act.

8. On 21 July 2025, by way of Summons Commencing Appeal the Appellant appealed the Decision pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) (LEC Act) (Appeal) seeking the orders set out at [3] above.

Evidence

9. At the hearing of the Appeal, the Appellant tendered an appeal book comprising five volumes.

Nature of the Appeal

10. Section 56A of the LEC Act provides:

56A Class 1, 2, 3 and 8 proceedings—appeals to the Court against decisions of Commissioners

(1) A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

(2) On the hearing of an appeal under subsection (1), the Court shall—

(a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or

(b) make such other order in relation to the appeal as seems fit.

(3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.

11. The Appellant in his Summons has identified ten separate grounds of appeal, each ground comprising the identification of the particulars relating to each ground.

Appeal Grounds

Ground 1 – Denial of procedural fairness

12. The first ground of appeal (Ground 1) is identified in the following terms:

The court denied procedural fairness and or denied Natural Justice.

Particulars:

• The applicant was not permitted to ask questions in reply of the value expert after some concessions were made “out of context”. This resulted in disallowing evidence which greatly affecting the Applicants [sic] evidence and outcome of the case.

• The applicant was disadvantaged by not having available the daily transcripts for preparations of the next court day and preparations for this appeal.

• The applicant as self represented litigant was not assisted by the court with technical and procedural issues. This is a duty of the court backed by case law. Again this affecting the Applicants [sic] evidence and outcome of the case

13. From the Appellant’s written submissions and oral submissions at the hearing of the Appeal the substance of Ground 1 was twofold: first, that the Acting Commissioner denied him the opportunity to adduce evidence in chief from his valuation expert (either at the commencement of the evidence or in reply); and, second, that whilst the Valuer-General had obtained a copy of the transcript of the proceedings he did not have access to the transcript. I will address each of these matters separately.

Denied opportunity to examine the valuer

14. The Appellant contends that the Acting Commissioner prevented him from asking questions of his valuer that he wished to ask pertaining to the valuer’s expertise and with respect to the comparability of the sales relied upon by the Valuer-General. He described this complaint orally as (Tcpt, 1 December 2025, p 6(13-23)):

APPELLANT: Now the - one of the major parts of that section, unfilled fair proceedings, is the questioning of my witness Dean Galanos, the valuer, and I was - I feel I was misled, maybe not deliberately, but as it - as it happens, it was said that Mr Goodyear can ask the question, so I know what to - questions to ask afterwards, so I understood that to be that I can ask my questions after the - after the cross examination, and that was number 1 not the case, so - but even so, that the questions I ask weren't actually questions in chief. They were actually questions relating to the matters raised in the cross-examination, and I explained in a second how. I was stopped asking those questions constantly and, basically, I could not do any examination in reply and I couldn't do any examination-in-chief.

15. The Appellant was requested to identify in the transcript of the hearing of the proceedings below the passage or passages he relied upon to establish his complaint. The Appellant identified only one passage that related to the issue of evidence in chief. An examination of that passage of transcript discloses that the Appellant’s valuation expert was sworn in and his written report was received into evidence. An exchange between counsel for the Valuer-General and the Acting Commissioner was identified by the Appellant as being relevant, that exchange was (Tcpt, 26 March 2025, p 124(25ff)):

GOODYEAR: Thank you. Commissioner, I was proposing to undertake cross-examination of Mr Galanos first.

COMMISSIONER: Yes.

GOODYEAR: Thank you.

COMMISSIONER: I think that would be helpful to Mr Boensch, and then he can - you get the chance to ask questions in reply.

16. This exchange discloses the traditional manner of hearing of an appeal such as that which comprised the proceedings below. The Court had directed the filing of written evidence and the preparation of joint reports of experts. In this case, such directions were complied with. The written evidence of the Appellant’s valuer was the evidence in chief of that witness: r 31.21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The process of cross-examination by the Valuer-General was in the usual course.

17. The transcript further discloses that the Appellant did not seek leave to adduce any evidence in chief beyond the terms of the expert report. The transcript also discloses that the Appellant did not indicate any objection to the course proposed by counsel for the Valuer-General and accepted by the Acting Commissioner. The Acting Commissioner’s indication that the Appellant would be able to ask questions in reply at the conclusion of the cross-examination was also merely stating the usual practice in a court hearing.

18. The Appellant was self-represented in the hearing of the proceedings below and on the hearing of this Appeal. The Appellant suggests that the Court had a duty to assist him at the hearing of the proceedings below. He does not identify in terms the nature of the assistance with respect to Ground 1 that he suggests that the Acting Commissioner failed to provide. The nature of the duty to which the Appellant referred was considered by the Court of Appeal in Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [309]-[316] as follows:

309 Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. In MacPherson Mason J, at [31] 534, noted that:

“A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as ‘fair’.”

310 However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: Tomasevic v Travaglini [2007] VSC 337; 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19, 23; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944, [11]; Nagy v Ryan [2003] SASC 37, [52]-[53].

311 Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case: Jae Kyung Lee v Bob Chae-Sang Cha per Basten JA at [48]. See also Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54; Pezos v Police (2005) 94 SASR 154.

312 Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised: R v Gidley (1984) 3 NSWLR 168. Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson [sic] per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v State of New South Wales (No 2) [2006] NSWSC 914.

313 The touchstone at all times remains that of fairness. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) Samuels JA, at 14, stated:

“But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent … At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement … An unrepresented party is as much subject to the rules as any other litigant.”

314 Thus, a trial judge is entitled to reprimand an unrepresented litigant if the judge believes that the litigant is trifling with the court: see Galea v Galea (1990) 19 NSWLR 263 at 283 per Meagher JA; Michael v Western Australia [2007] WASCA 100 at [64] per Steytler P (McLure JA and Miller AJA agreeing); Jae Kyung Lee v Bob Chae-Sang Cha at [84] per Basten JA.

315 There may be a fine tension in striking the balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties. However, it is the task of the judge to strike that balance. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446 the Full Federal Court dealt with the tension between the duty of the trial judge to ensure a fair trial and the requirement of impartiality:

“A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.”

316 The position can be stated no more clearly than reiterating that the judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness.

19. Absent some identified breach of the stated duty, it is impossible to determine whether the duty has in fact been breached. As identified above, the process adopted by the Acting Commissioner was entirely consistent with the procedures for an appeal of the nature before her. The process of such appeal is apparent from a consideration of the usual rules of practice as identified in the UCPR as related to such an appeal. The Appellant indicated no uncertainty as to the process being adopted such that the Acting Commissioner was obliged to explain the procedural basis for the process adopted. The Court does not have an obligation to give legal advice to self-represented litigants, the transcript does not disclose an obvious breach of the duty can be established and without further particularisation of the breach, it cannot be accepted.

20. For the reasons outlined above, the evidence does not support a finding that the Appellant was denied procedural fairness in that the Court denied him the opportunity to adduce further evidence in chief beyond that of the written report of his valuer.

21. As to the examination in reply, the Appellant identified circumstances in which he said he was “interrupted”. Upon further explanation such “interruptions” were in fact objections to the questions taken by counsel for the Valuer-General upon which the Acting Commissioner ruled.

22. An examination of the transcript of the hearing of the proceedings below in the passage dealing with the Appellant’s re-examination of his valuer identifies the occasions on which the objections were taken. The basis for the objection was identified by counsel, the Appellant provided a response to the objection and the Acting Commissioner ruled on the objection identifying the reason for the ruling. The majority of objections related to the fact that the question was not one properly arising in “reply”. The Acting Commissioner accepted such objections. Further, the Acting Commissioner noted on several occasions that the evidence sought to be adduced was already contained in the written report of the valuer. The transcript discloses that the objections were taken and ruled upon in accordance with proper practice. The Appellant has identified no error of law in the manner in which the Acting Commissioner made such rulings. His complaint is primarily that the Acting Commissioner upheld the objections when made. Absent some identification of an error of law in such ruling, merely upholding the objection made is not an error of law and does not of itself operate as a denial of procedural fairness in the manner posited by the Appellant.

23. For the reasons outlined above, the Appellant had failed to establish a denial of procedural fairness with respect to the manner in which the Acting Commissioner dealt with his re-examination of his valuer.

Lack of transcript

24. The Appellant asserts that by not having a daily transcript of the hearing of the proceedings below he was placed at a disadvantage that was sufficient to comprise a denial of procedural fairness. He identified this ground in the following terms (Tcpt, 1 December 2025, p 5(9-39)):

APPELLANT: In terms of what you asked me to do, referring to the different points, now the - I said it in my submissions already - the matter, I feel - I feel I’ve been not treated fairly. In the - in the Court below the matters that I didn't have a transcript available and I couldn’t - I couldn’t prepare from day-to-day questions for the witnesses in that respect. I know there’s things which could have been done. I’m not financially in a position and I didn’t know that I could ask or how to ask for a daily - for a daily transcript. I know you can ask for transcript which takes a month or two or three, sometimes half a year, but I’m not financially in a position that I could have done that, but because one side had the transcript available and the other side didn’t, I see that as a - as a - as a disadvantage for my case.

HER HONOUR: But why was that the Court’s problem?

APPELLANT: Well, it’s not necessarily the Court's problem, but it - I feel it should have been addressed so there’s equal - the parties have equal an opportunity to run the case to the best of their ability. If one party doesn’t have the information available and the other party has, then that is - that is a handicap, in my view, so that’s the best I can put it.

HER HONOUR: Okay.

APPELLANT: The second, in my submission, is - hang on a second. Yeah, the other thing - and that’s - I understand from the Court’s point of view with submissions made right after the hearing, verbally, it’s probably a normal thing, but for me, a self-represented, I wasn’t able to, to the best of my ability, because I - there was so many things when I read through the transcript now where it was said, “You can address”, it was directed that I can address that at the final submission, but I didn't have the ability to accumulate all that stuff to bring it to the Court right after hearing. I needed some time and the time wasn’t given, so I feel I was disadvantaged in that respect.

25. The Appellant’s complaint relates to his ability to manage the volume of material and the formulation of his ideas in the context of a hearing that proceeded at pace. I note that to that extent, the hearing of the matter in the proceedings below was not usual: it proceeded on Day 1, a Monday, Day 2 was the Wednesday of the same week and Day 3 was a week later. Therefore, by the nature of the listing the Appellant had more opportunities to manage his case than most litigants. The lack of a transcript was an administrative matter, in that transcripts are not automatically provided to litigants. Litigants are generally expected to manage the case without the benefit of a daily transcript. If a transcript is considered desirable an application can be made by a party, with payment, and a daily transcript will be provided at the conclusion of each day of hearing. Whether a transcript is sought is entirely a matter for each litigant. The fact that the Valuer-General obtained a transcript and the Appellant did not is not a matter that reflects on the conduct of the hearing by the Acting Commissioner. The Appellant’s failure to seek or obtain a transcript is a consequence of his own inaction and not a matter that reflects on the Acting Commissioner’s conduct as a denial of procedural fairness. The Appellant has failed to establish that the conduct of the hearing by the Acting Commissioner constituted a denial of procedural fairness.

26. For the reasons outlined above, the Appellant had failed to demonstrate an error of law with respect to Ground 1.

Ground 2 – Failure to take into account relevant material and taking into account irrelevant material

27. The second ground of appeal (Ground 2) is identified in the following terms:

The court failed to take into account all relevant material and exclude all irrelevant material. That applies to more than one consideration of evidence This contributed to the erroneous finding/judgment

Particulars:

• The relevant land is affected by H6 category flood risk conditions and H6 restriction for development is essential to differentiate between the land in question and any alleged comparable properties, which are none.

• The relevant land is affected due to being located in a “flood way” and flood way condition and restriction affecting land for development is essential to differentiate between the land in question and any alleged comparable properties, which the Court failed to do.

• The relevant land is affected by PMF conditions and PMF restriction for development is essential to differentiate between the land in question and any alleged comparable properties, which the Court failed to do.

• The evidence shows that the “Shore Line” building restrictions affecting the relevant land to about 90%Land.

The valuation expert Mr Allen informed the Court that it is important and reflected in the value of a land as to what degree or percentage of m2 [sic] a land is affected by a certain adverse condition.

The evidence shows that no other property in particular none of the alleged comparable properties are affected and only one property is affected by 10% of the “Fore Shore” line condition. The Court has failed to do such assessment.

The evidence also shows that the permissions given to develop under the Fore Shore line are opposed to and prohibited under the conditions of the land zoning IN2. Further the Fore Shore conditions permitted are suitable to the ocean Fore Shore not in land.

• The Court failed to make these assessments

28. The substance of Ground 2 as identified by the Appellant is that the Acting Commissioner:

29. Took into account irrelevant considerations relating to:

(a) The flood classification of the Subject Land; and (b) The comparable sales, which the Appellant contends were not comparable with respect to the flood classification of those sales.

2. Failed to take into account the relevant consideration relating to:

(a) The impact of the foreshore building line on the Subject Land; and (b) The lack of comparable impact on the comparable sales of a foreshore building line.

Flood classification

29. Of fundamental concern to the Appellant was that he contended that the Subject Land should be classified as H6 Flood Risk which precluded the development of the Subject Land for the purposes identified by the Valuer- General’s hydrologist expert. The Decision indicates that the issue of the relevant flood classification was in dispute at the hearing below. The Acting Commissioner, after considering the evidence and submissions, accepted the submission of the Valuer-General that the Subject Land was capable of such development and accepted that the Subject Land was not classified as H6 Flood Risk but rather could be properly classified as Medium Risk.

30. The evidence before the Acting Commissioner included an expert report prepared for the Valuer-General by an expert hydrologist. The Appellant did not adduce any evidence from a hydrologist.

31. By way of summary, the Valuer-General’s hydrologist’s expert opinion was that as set out at [24]-[28] of the Decision.

32. The flood risk identified by the hydrologist took into account both the existing flood levels and the flood levels achieved in the hypothetical development scenarios. The hypothetical development included works to alter the flood levels on parts of the Subject Land. The alteration of the flood levels by those works were considered by the Acting Commissioner in the determination of the issues in dispute. The Acting Commissioner accepted the evidence of the Valuer-General as to flood levels and not that of the Appellant. Accordingly, the finding as to the flood levels was a matter undertaken in consideration of the evidence and represents a finding of fact, not amenable to an appeal pursuant to s 56A of the LEC Act.

33. Although not expressed in the particulars of Ground 2 (or any of the other identified grounds of Appeal) the Appellant placed significant weight upon his contention that the survey information upon which the Valuer-General’s hydrologist relied was factually incorrect. This complaint related to what was referred to as the LiDAR survey. It was asserted that the LiDAR was inaccurate when compared to the actual physical features of the Subject Land and had some technical constraints when surveying land below physical structures such as a bridge.

34. It is not apparent from the transcript of the hearing in the proceedings below that all of the complaints relating to LiDAR were raised before the Acting Commissioner. The Appellant conceded in his oral address that some of his complaints had crystallised by investigation and research undertaken by him after the Decision was delivered.

35. The use of the LiDAR for the purpose undertaken by the hydrologist was explained in that expert’s evidence. The acceptance of that evidence by the Acting Commissioner was a matter open to her and the Appellant has failed to identify any legal error in her reasoning. Even if the LiDAR contained some inaccuracies or lessened its utility in the exercise, which has not been established, the onus was on the Appellant to establish that the evidence of the hydrologist was so flawed as to be incapable of forming the basis for the Acting Commissioner’s Decision. There is no material before me that establishes this fact or that such submission was made to the Acting Commissioner.

36. Accordingly, I find that the Appellant has failed to establish that the Acting Commissioner erred in law in the determination of the appropriate flood classification of the Subject Land for the purpose of determining value as required by the VL Act.

Comparable sales

37. The question of whether a particular sale is comparable or not is a matter for the Court determining value. As was stated in ISPT Pty Ltd v Valuer General (NSW) (2009) 165 LGERA 25; [2009] NSWCA 31 (ISPT) at [23]-[24]:

23 Comparability and concomitant adjustment involve matters of degree and judgment. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 Hutley JA, with whom Samuels JA agreed, said at 383 that “[w]ithin limits, the decision as to what sales are comparable is a question of fact”, and in Leichhardt Municipal Council v Seatainer Terminals Ltd (1981) LGRA 409 at 433 Hope JA said bluntly, “Whether sales are comparable is a question of fact”. See also, referring to these cases, Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177 and Roads and Traffic Authority v Mosca [2006] NSWCA 159; (2006) 146 LGERA 335 at [66]. Whether the sales outside Fairfield were sales which, with adjustment, could provide useful comparison and so assistance in valuing the land was a question of fact.

24 The trial judge, assisted by the Acting Commissioner with his valuation expertise, found that the sales outside Fairfield were not comparable. The valuers’ regard to sales outside Fairfield did not take this outside any limit, particularly when at least initially all but one of the sales to which each valuer had regard was not taken up as comparable by the other. There could be error of law in rejecting as wholly irrelevant, for reasons which were not rational, a sale or sales which prima facie afforded some evidence of value: Maurici v Chief Commissioner of State Revenue [2003] HCA 8; (2003) 212 CLR 111 at [8], citing Melwood Units Pty Ltd v Commissioner of Main Roads (1979) AC 426; or put another way, if the finding that the sales were not comparable was not reasonably possible or open on the evidence: Leichhardt Municipal Council v Seatainer Terminals Ltd at 434, referring to Hope v Bathurst City Council (1980) 144 CLR 1. But no basis was shown for regarding the trial judge’s finding as irrational or one not open to him.

38. The Appellant contends that the selection of the comparable sales by the Acting Commissioner was erroneous on the basis that the comparable sales were subject to a different flood classification.

39. Accepting as I do that it was open for the Acting Commissioner to determine the relevant flood classification as she did, the selection of comparable sales that could, with adjustment, be relevantly comparable to the Subject Land is a question of fact. The Appellant has not identified any error of law in the selection or application of the comparable sales identified. The Acting Commissioner accepted the evidence of the expert valuers that the comparable sales identified were, subject to adjustment, capable of informing market value of the Subject Land. The only dispute between the valuers was the nature of the adjustments to be made on the basis of flood affectation: Decision at [30(11)(a)] and [30(12)(c)]. The Acting Commissioner’s approach was entirely orthodox and consistent with the evidence adduced.

40. Accordingly, I find that the Appellant has failed to establish that the Acting Commissioner erred in law in the selection or the application of the comparable sales to the task of determining the value of the Subject Land for the purposes of the VL Act.

Foreshore building line

41. The Appellant contended that the Acting Commissioner failed to take into account the impact of the foreshore building line on the Subject Land and on the comparable sales.

42. As is apparent from the Decision the Acting Commissioner did consider the impact of the foreshore building line on the Subject Land: Decision at [34(1)(d)], [36] and [37(5)]. Such considerations informed the Acting Commissioner’s decision-making process. The assertion that she failed to take the impact of the foreshore building line on the Subject Land is not established.

43. As to the impact of the foreshore building line on the comparable sales, the Acting Commissioner accepted the evidence of the valuers that the adjustments to those sales were agreed but for the issue of flood affectation. For the reasons I have outlined above with respect to the selection and use of the comparable sales, the impact of the foreshore building line on the comparable sales and any appropriate adjustment was a question of fact and not amenable to an appeal pursuant to s 56A of the LEC Act. The Appellant has failed to identify an error of law in the Acting Commissioner’s consideration of the comparable sales.

44. For the reasons outlined above, the Appellant has failed to establish that the Acting Commissioner erred in law as asserted in Ground 2.

Ground 3 – Asked the wrong question

45. The third ground of appeal (Ground 3) is identified in the following terms:

• Is any comparable land affected by a dual “use of the land” being the use by the proprietor and equally use/ control by the local authority? As the Local Authority demand to keep the land clear of any structure for “Flood Water Storage” restrictions, to aid the authorities with their storm water management for development upstream?

• Do such dual use/ control warrant similar adjustments/discount as applied to the drainage/water detention restriction within the Liverpool LGA and if not the same, what discount would apply for such “dual use”. Such “dual use” was not shown to apply to any of the alleged comparable properties?

• Has the condition of the relevant land changed to the better in physical exposure to the serve flooding condition, or are there any relaxation in Town planning rules or local flood condition requirements for developments on site, since the assessment for development in about 2010-2011 resulting in a judgment refusing a change of use for an existing building, let alone a new building. Development? Judgment:

Boensch v Parramatta City Council (No2) [2013] NSWLEC1262

• The Court failed to ignore irrelevant evidence in that it should have rejected any evidence based on the Red Map. That includes but not limited to both reports filed in chief by the respondent.

• The Court failed to ask: What assistance is a report or reports that rely on data which is described by its author as not to be taken accurately. That applies to all the information taken out of an [sic] relied upon from the Council Website “Know Your Flood Risk”

46. Ground 3 is, in effect, a repetition of the other grounds raised in this appeal but cast as a failure to ask the correct question. For the reasons identified in each of the other grounds of appeal raised, I do not accept that the Acting Commissioner asked the wrong questions, or that in asking the questions she did that the Appellant had demonstrated that the Acting Commissioner erred in law.

47. For the reasons outlined above, the Appellant has failed to establish that the Acting Commissioner erred in law in not asking the questions as posed by the Appellant in Ground 3 of the Appeal.

Ground 4 – Failure to ignore irrelevant evidence

48. The fourth ground of appeal (Ground 4) is identified in the following terms:

The Court failed to ignore irrelevant evidence

• The Court failed to ignore irrelevant evidence in that it should have rejected all evidence based on the Red Map from the Council Website “Know Your Flood Risk”. That applied to most if not all, but certainly to the 2 expert reports in chief filed for the respondent. Both reports rely almost exclusively on information taken from the red map with their conclusions, including the comparison table.

• However the information on the “Know your Flood Risk” Website is tainted and so is the information on the Red Map which is taken from this website.

• The information is tainted due to a specific “Note” placed by Parramatta Council (the author of the website). That Note states: “That the information on the “Know Your Flood Risk Website” is “not meant to be accurate”. At best it is crude information which does not assist to draw conclusions or show difference between the properties displayed. It does not differentiate between floods coming from Parramatta River (from the south) and floods coming from the creek (from the north) due to permanent storm water mismanagement. (see reference in the DCP2011 to PMF) as outlined in the submissions.

49. Ground 4 relates to what has been referred to as the “Red Map”. The Red Map was a document tendered in the proceedings over the objection of the Appellant. The genesis of the Red Map and the nature of the objection taken, together with the Acting Commissioner’s ruling, is contained at [5] of the Decision.

50. On questions of the admissibility of evidence in valuation matters, such as the present, it has been held that, whilst such decisions may admit of legal error, the decision is largely a matter for the commissioner. As was stated in ISPT at [5]:

… In a jurisdiction where the Court is undertaking the task of valuation (being a task of evaluation and application of experience and, to a degree, impression, of the kind discussed by the Privy Council in Secretary of State for Foreign Affairs v Charlesworth Pilling & Co [1901] AC 373 at 391), the choice by the judicial valuer of relevant material to assist him or her in reaching a conclusion does not necessarily carry with it any legal question. If the judicial valuer rejects, as legally irrelevant, material which, in law, is demonstrably relevant, that may reveal a legal error in approach. However, the choice by the judicial valuer as to material of utility or weight will be, generally, a question of fact in the evaluative process. If not bound by the rules of evidence, a “rejection” of material by the judicial valuer may be seen as a judgment by him or her that a body of material is unlikely to be of utility and, as such, involve factual, rather than legal, considerations.

51. In order for the Appellant to succeed on Ground 4 he must establish that the Red Map was legally irrelevant and therefore the Acting Commissioner, in admitting the Red Map into evidence, was in error at law.

52. The Acting Commissioner set out in terms the reasons for the admission of the evidence notwithstanding the Appellant’s objection at [5(9)] of the Decision in the following terms:

Although the Applicant objected to tender of the “Red Map” it has been attached to his evidence. The Applicant was invited to cross examine Mr Dhiacou on the Red Map, which he did, and I note the Valuer-General submitted that the only inference reasonably available was that the Red Map was available to a potential purchaser at the Base Date. Having heard the cross examination of Mr Dhiacou by the Applicant I accept that the Red Map would have been available to a potential purchaser at the Base Date. (see para [26] below)

53. The Acting Commissioner identified at [5(8)] of the Decision that the Red Map was extracted from the local council’s “Know Your Flood Risk” website and was publicly available at the relevant valuation date.

54. In this Appeal, the Appellant sought to establish that the Red Map was irrelevant as it was “tainted” due to a disclaimer as to the purpose of the Red Map on the council’s website.

55. The Acting Commissioner accepted the Red Map into evidence on two bases: the first being that the Appellant had himself tendered the Red Map as part of his evidence so that the tender of such map by the Valuer-General did not alter in a material respect the evidence before her; and secondly, that the Red Map was available to the hypothetical purchaser as part of the information available as at the relevant Valuation Base Date. Neither of these bases demonstrate that the Acting Commissioner erred in law in the admission of the Red Map into evidence so as to convert it to a legal question upon which the Acting Commissioner erred: see ISPT at [50] above.

56. For the reasons outlined above, the Appellant has failed to establish that the Acting Commissioner erred in law on the basis as asserted in Ground 4.

Ground 5 – Estoppel

57. The fifth ground of appeal (Ground 5) is identified in the following terms:

The Court failed to adhere/comply with the Estoppels issue:

• The Court had no power or authority to override/change the outcome of the proceedings

Boensch v Parramatta City Council (No2) [2013] NSWLEC1262

• Before the Court in 2013 the Court had both sides Town planning evidence and arguments and both sides Flooding evidence and arguments before it to reach the conclusion it did.

• The Courts Conclusion was, that the site cannot be developed in terms of a change of use, let alone a new building.

• This Court had before it, the Judgment, the transcript of the proceedings and the contentions to assess the issue estoppels but failed to do so.

58. The Appellant lodged a development application with Parramatta City Council in 2011 for the construction of an additional level and the use of the new level and an existing level as a 16-room boarding house and ancillary uses in an approved, but not constructed building at 255 Victoria Road, Rydalmere NSW 2116 (Development Application). The Development Application was the subject of an appeal to this Court and the appeal was dismissed. The facts and history of the Development Application are set out in the decision of the Court in Boensch v Parramatta City Council (No 2) [2013] NSWLEC 1262 (Development Application Decision), which I do not repeat here.

59. The Appellant contends that the Development Application Decision found that the Subject Land could not be developed in terms of a change of use, let alone a new building, and that the Acting Commissioner in determining the appeal against the determination of value by the Valuer-General was bound to apply such findings. He framed the obligation as an issue of estoppel.

60. The Appellant contended that the material relating to the Development Application Decision was before the Acting Commissioner in the bundle of documents presented by him which became an exhibit in the proceedings.

61. The Appellant in his written and oral submissions did not identify the foundation of this ground, that is he did not address it in terms. When asked to identify from the transcript where he raised this matter before the Acting Commissioner (and being given time to examine the transcript available) he was unable to identify that he had raised the issue with the Court at the hearing of the proceedings below.

62. The Valuer-General submitted at par 87 of the written submissions that:

In the bullet points supporting this ground (on AB 77), the appellant refers to a prior decision of Boensch v Parramatta City Council (No 2) [2013] NSWLEC 1262. Perhaps the appellant is asserting an argument based on res judicata or issue estoppel or Anshun estoppel, or perhaps asserting that the Court made findings inconsistent with that earlier decision from 2013. Even leaving aside the fact that such arguments were never raised before Peatman AC, there are further problems, namely that:

(a) findings of fact in one proceeding create no binding precedent on any later proceeding; and, in any event

(b) the Valuer General was not a party to those earlier proceedings, and so could not be bound by anything in it.

63. It was therefore apparent, or should have been apparent, to the Appellant that he would need to identify the foundation of this claim. Such was also reinforced by the questions asked of him during this Appeal.

64. Whether a matter can be raised on appeal, that was not raised in the Court below, is the subject of strict application of relevant principles. The relevant principles were recently restated in the Court of Appeal in Lam v Liu [2025] NSWCA 254 at [44]-[47] in the following terms:

44 This engages the strict principles which stand against allowing such new points to be run on appeal. In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35 (Suttor v Gundowda) Latham CJ, Williams and Fullagar JJ said:

The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards. In [Connecticut Fire Insurance Co v Kavanagh (1892) AC 473], Lord Watson, delivering the judgment of the Privy Council, said, “When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice, to entertain the plea. The expediency of adopting that course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact, in considering which the court of ultimate review is placed in a much less advantageous position than the courts below: [Connecticut Fire Insurance Co v Kavanagh (1892) AC 473 at 480].

45 In Coulton v Holcombe (1986) 162 CLR 1 at 7-8; [1986] HCA 33 (Coulton v Holcombe) Gibbs CJ, Wilson, Brennan and Dawson JJ described the principles in these terms:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards. (Citations omitted.)

46 In Water Board v Moustakas at 497 Mason CJ, Wilson, Brennan and Dawson JJ said:

More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. (Footnotes omitted.)

47 In Whisprun v Dixon Gleeson CJ, McHugh and Gummow JJ said:

[51] … It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs. (Footnotes omitted.)

65. In this case, the Appellant had failed to identify that the issue now raised on appeal was raised in the Court below. Leave has not been sought to raise the issue, notwithstanding that the absence of the issue being raised was identified by the Valuer-General in this Appeal. If raised, there would be real issues to be considered relating to the nature of the findings made in the Development Application Decision and whether it operated as an estoppel in this Appeal, and whether the Development Application Decision in fact made the finding contended for by the Appellant.

66. The fact that the material was before the Acting Commissioner in the Appellant’s bundle of documents does not alter the position of the issue, as now contended, not being raised for determination by her.

67. For the reasons outlined above, I find that the Appellant cannot sustain this ground of appeal and has not established that the Acting Commissioner erred in law in not “adher[ing]” to the Development Application Decision or the basis at law upon which she was bound to do so.

Ground 6 – Town planning

68. The sixth ground of appeal (Ground 6) is identified in the following terms:

Town planning

• town planning restrictions were not assessed for a hypothetical argument for all parties not just for the applicant.

• However the Applicant did rely on the evidence and Town planning results arising from the Judgment,

Boensch v Parramatta City Council (No2) [2013] NSWLEC 1262

Which was not Hypothetical.

69. The Appellant contended that in order for the Acting Commissioner to be satisfied as to the development potential of the Subject Land it was necessary for the Valuer-General to adduce evidence from a town planner, which it did not do so.

70. The Acting Commissioner identified at [27] and [29] of the Decision that the development scenarios developed by the expert hydrologist were consistent with the development controls applicable to the Subject Land. She observed at [39]-[40] of the Decision:

39 Mr Allen opined that if a town planner advised that the building option No 1 (upon which he relied) in the Dhiacou Report could not be done under the planning rules, the value of the Land would be lower. The difficulty for the Applicant in applying such a reduction is that he did not produce a town planning report and nor did the Valuer-General – therefore argument is hypothetical.

40 I accept the evidence of Mr Dhiacou, although noting the valuers only considered Option 1 for a new build.

71. The Acting Commissioner’s recitation of the evidence of Mr Allen, valuer, does not reflect an acceptance by the Acting Commissioner of the onus as contended by the Appellant nor does it reflect an inability to accept the evidence of the hydrologist as to development potential. The evidence of the hydrologist was that the development scenarios met the Council’s development controls. The Acting Commissioner accepted such evidence, as was open to her to do so. The evidence of Mr Allen was a conditional opinion that would turn on the advice of a town planner contradicting the opinion of the hydrologist. Absent such evidence being adduced, Mr Allen’s evidence, due to its conditional nature, remained a hypothesis as the condition precedent to such opinion having some capacity to influence the Decision remained unfulfilled.

72. In circumstances where the development potential was accepted as being compliant with the relevant development controls it was a matter for the Appellant to establish that development approval would be unlikely notwithstanding such compliance, as he bore the onus of establishing that the value determined by the Valuer-General was too high. If town planning evidence was required, it was to support the Appellant’s case not the case of the Valuer-General.

73. For the reasons outlined above, I find that the Acting Commissioner did not err in law in accepting the evidence of the Valuer-General absent the provision of town planning evidence.

Ground 7 – Financial feasibility

74. The seventh ground of appeal (Ground 7) is identified in the following terms:

The Court failed in its duty to pay due attention to the financially feasible according to the VL act and case laws as to whether or not a project as alleged as scenario 1 and scenario 2 is feasible or just remote and speculative possibility #[19]

• The court failed to follows [sic] its own guidelines reflected in paragraph #[19} of the judgment.

• The Court failed to assess the evidence filed for showing the feasibility to develop this property. The Court should have assessed the feasibility and ought to have come to the conclusion that any development to address the multiple issues for a development, if any at all, is not feasible.

75. This ground appears, by inference, to assert that there is some unidentified legal obligation for the Court to be satisfied that any development potential of the Subject Land is financially feasible. The Appellant referred to no identifiable authority to support such a submission if made.

76. In any event, the value of the Subject Land was made by reference to comparable sales, which valuation methodology includes a consideration by the relevant market as to the cost of any redevelopment. As was stated in the evidence by Mr Allen in the proceedings below, the price paid by the market for the unimproved land would reflect the cost of redevelopment of that land (Tcpt, 7 April 2025, p197(30)-198(2)).

77. The reference by the Appellant to “the evidence filed” related to the lay evidence of himself adduced in relation to the contract price for construction of a development proposal other than that identified in the scenarios adopted by the valuers. That evidence did not relate to financial feasibility in the objective sense but rather whether he personally would consider such development to be financially attractive to build. The evidence, whilst before the Acting Commissioner, did not directly relate to the valuation exercise being undertaken. The extent to which such evidence could assist the Acting Commissioner in determining the relevant value of the Subject Land was a matter for her (see [50] above). I accept the Valuer-General’s submission that absent the identification of some positive legal requirement to determine financial feasibility of a development proposal, or a legal error in applying an incorrect principle, the substance of Ground 7 is a complaint as to the Acting Commissioner’s ultimate findings of fact based upon a consideration of the totality of the evidence. Such a complaint is not amenable to an appeal under s 56A of the LEC Act.

78. For the reasons outlined above, I find that the Appellant has failed to establish that the Acting Commissioner erred in law on the basis identified in Ground 7.

Ground 8 – Onus

79. The eighth ground of appeal (Ground 8) is identified in the following terms:

The Court failed in its duty to ascertain whether or not the DA scenarios 1 and 2 alleged by the flood expert are a realistic possibility or just a remote and speculative possibility.

• The flood expert itself had reservations that it was in fact a realistic option, as it raised and relied on the condition, dependence and the outcome of a town planning assessment with its alleged proposals.

80. Section 40(2) of the VL Act provides that:

On an appeal, the appellant has the onus of proving the appellant’s case.

81. In the appeal in the proceedings below, the Appellant’s case was that the Valuer-General’s valuation was too high. The Valuer-General valued the Subject Land on the basis that it was capable of being developed. The Appellant contended that the Subject Land was incapable of development other than for flood water management purposes.

82. The Appellant contended in this Appeal that the Acting Commissioner erred in determining that he had not discharged his onus: Decision at [46(3)] and the identification of the relevant onus: Decision at [8]-[9]. In effect, the Appellant contends that the onus to which the Acting Commissioner directed herself was an onus borne by the Valuer-General, namely that identified by the Acting Commissioner at [19(2)(a)] of the Decision in the following terms:

The onus is on “the person or authority seeking to establish a value based upon some different use from that which is authorised by the restrictions the burden of showing the practicability or reasonableness of the land being devoted to some such use: and needless to say, this extends to showing the probability of some relaxation or variation of the scheme and the means by which that is likely to be achieved” (Parramatta City Council v Valuer-General (1964) 10 LGRA 160, Else-Mitchell J at top of page 170).

83. The Appellant contended that the Valuer-General’s case that the Subject Land should be valued on the basis that it was capable of being developed in the manner identified by the Valuer-General’s hydrologist expert in either scenarios 1 or 2 of his evidence (understanding that the valuation experts only valued the land on the basis of scenario 1) placed an onus on the Valuer-General, and not him, that such a development scenario was likely to be approved by the relevant planning authority. He contended that he did not bear an onus to establish that the Valuer-General’s approach was in error and therefore produced a value that was too high.

84. The onus to which the Decision refers at [19(2)(a)] is an onus where it is contended that a development other than that which reflects the constraints upon development contained in any relevant planning control that applies to the land at the relevant Valuation Base Date. The reference made by the Acting Commissioner to the decision of Parramatta City Council v Valuer-General and Anor (1964) 10 LGRA 160 as quoted at [19(2)(a)] makes this clear. As was stated in that case at 169-170:

The conclusion that, whatever restrictions upon the use of the subject land were imposed by or under Part XIIA of the Local Government Act or any planning scheme taking effect under that Part, must be taken into account in arriving at the unimproved value of the land, is in conformity with a series of decisions in this Court in which consideration has been given to the weight which should be afforded to such restrictions and which furnish illustrations of the application of s 6 of the Valuation of Land Act, 1912-1951, to land which is affected by some such restriction (Sonnerdale v. The Valuer-General; Sydney City Council v. The Valuer-General; Wunderlich Ltd. v. The Valuer-General; Randwick M.C. v. The Valuer-General; Re Kensington Golf Links Ltd.). To this enumeration I should add the decision of the Supreme Court in Rutledge v. Randwick M.C., and that of Kitto J. in Royal Sydney Golf Club v. Federal Commissioner for Taxation, which dealt with the same problem in relation to a similar provision of the Land Tax Assessment Act 1910-1950 (Cth).

These decisions all appear to me to establish the propriety, if not the necessity, for ascertaining the true nature and purpose of the restrictions not only as a matter of law but as a matter of fact because, as Kitto J. observed in the last cited authority “the supposition must be made in order properly to apply the test of value laid down in Spencer v. The Commonwealth that a price is arrived at in bargaining between a hypothetical prudent purchaser and vendor each of whom is equipped with knowledge of the existing circumstances”. They also, I think, cast upon the person or authority seeking to establish a value based upon some different use from that which is authorized by the restrictions the burden of showing the practicability or reasonableness of the land being devoted to some such use; and needless to say, this extends to showing the probability of some relaxation or variation of the scheme and the means by which that is likely to be achieved.

85. The scenarios developed by the Valuer-General’s expert reflected the planning constraints of the local planning authority’s controls as they applied to the Subject Land, such was not disputed in the proceedings before the Acting Commissioner. Therefore, the onus to which the decision above refers is not engaged on the facts of this case. The only relevant onus was whether the Appellant had satisfied the Acting Commissioner that the Valuer-General’s value was too high. In order to discharge that onus, the obligation was on the Appellant to establish that the development potential identified by the Valuer- General was in some way erroneous, and he failed to do so. As a consequence, and for the reasons identify at [71] above, the assertion that the Acting Commissioner failed to determine whether the development scenarios were a realistic possibility or just a remote and speculative possibility due to the lack of town planning evidence is not an error of law, as town planning evidence was not required to be adduced by the Valuer-General.

86. For the reasons outlined above, I find that the Appellant has failed to make out an error of law as identified in Ground 8.

Ground 9 – Flood expert contradicted himself

87. The ninth ground of appeal (Ground 9) is identified in the following terms:

The Court failed to find that the flood expert contradicted himself on more than one subject with the evidence and conclusions reached in the expert report in chief and the concessions and contradictions made during the Cross examinations.

• In particular but not limited to that an application is only to be assessed up to 1% (1 in 100) flood under the DCP 2011 #[27] and #[29} while in reality the assessment up to the PMF is what the requirement is. A copy of the text of DCP 2011, outlined in submissions, shows that scenario 1 and scenario 2 is not possible as for example a save access for pedestrian and Vehicles must be provided above the PMF which in this case is about 4.5m above the main arterial Road i.e. Victoria Road and is physically not a realistic endeavour.

88. The Appellant’s contention in this ground is a little unclear. I understand the Appellant to be suggesting that the hydrologist expert utilised an incorrect flood planning level to determine the development potential of the Subject Land. Namely, he failed to utilise the required flood planning level of the Probable Maximum Flood (PMF) and instead utilised the 1% Annual Exceedance Probability (AEP).

89. The Acting Commissioner dealt with this submission at [29] of the Decision wherein she found:

Throughout the hearing Mr Boensch raised the issue of development being designed to take into account the PMF. As set out in Mr Dhiacou’s evidence, the 1% AEP is 6.08m AHD and the PMF is 9.57m AHD. However, for the purposes of developing the subject land the design criteria to the PMF is the incorrect test. The correct test is set out in Council’s DCP 2011, Table 2.4.2.1.2 which requires development to comply with the 1% AEP and not the PMF.

90. Whilst the Appellant is correct, the Council’s Development Control Plan (DCP) makes reference in numerous locations to the PMF, such references however do not dictate that development must be designed by reference to the PMF as a flood planning level. The relevant part of the DCP that dictates the design standards for new development such as that proposed in scenarios 1 and 2 on land to which the DCP applies such as the Subject Land is that contained in the table to which the Acting Commissioner refers. Reference to that table makes it clear that the relevant flood planning level is that as found by the Acting Commissioner.

91. Accordingly, I find that the Appellant has failed to establish an error of law on the basis as identified in Ground 9.

Ground 10 – Unreasonableness

92. The tenth ground of appeal (Ground 10) is identified in the following terms:

It was unreasonable across the board for the Court to come to the conclusion it did.

93. The Appellant did not identify any particular basis for this ground. In the written and oral submissions of the Appellant this ground was not specifically addressed nor particularised.

94. I accept the submission of the Valuer-General that Ground 10, as pleaded, is the kind of complaint generally taking issue with the merits of the outcome of the Acting Commissioner’s decision. Such a complaint is not a matter of law to which an appeal may be made pursuant to s 56A of the LEC Act.

95. Accordingly, I find that the Appellant has not established Ground 10 as a matter capable of comprising a basis for an appeal, and nor has he identified any issue that would permit a finding supporting his grounds of appeal.

Costs

96. In s 56A appeals the usual order is that costs follow the event. Neither party has submitted that the usual order should not be made. Accordingly, I will order that the Appellant, being unsuccessful in the Appeal, pay the Valuer-General’s costs of the Appeal.

Conclusion and orders

97. For the reasons outlined above, the Appellant has not demonstrated an error of law in the Decision of the Acting Commissioner on any of the grounds identified. Accordingly, it is appropriate that the Appeal be dismissed.

98. The Court orders:

99. The Summons Commencing Appeal filed on 21 July 2025 is dismissed; and

100. The Appellant is to pay the Respondent’s costs of the Appeal.

**********