BSM Holdings Pty Ltd v Valuer-General of New South Wales; Omaya Investments Pty Ltd v Valuer-General of New South Wales - [2024] NSWLEC 79 - NSWLEC 2024 case summary — Zoe

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BSM Holdings Pty Ltd v Valuer-General of New South Wales; Omaya Investments Pty Ltd v Valuer-General of New South Wales

[2024] NSWLEC 79

Land and Environment Court (NSW)|2024-04-26|Before: Pain J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-04-26

Before

Pain J

Catchwords

[2011] VSC 184 Housing Commission of NSW v Falconer [1981] 1 NSWLR 547 Kenny and Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413
[1999] HCA 25 Leice Pty Ltd v City of Canada Bay Council [2021] NSWLEC 1627 Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111
[1955] HCA 13 Spencer v Commonwealth (1906) 5 CLR 418
[1907] HCA 82 The Trust Company Ltd v Minister Administering the Crown Lands Act 1989 (2012) 211 LGERA 158

Source

Original judgment source is linked above.

Catchwords

[2011] VSC 184 Housing Commission of NSW v Falconer [1981] 1 NSWLR 547 Kenny and Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413[1999] HCA 25 Leice Pty Ltd v City of Canada Bay Council [2021] NSWLEC 1627 Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111[1955] HCA 13 Spencer v Commonwealth (1906) 5 CLR 418[1907] HCA 82 The Trust Company Ltd v Minister Administering the Crown Lands Act 1989 (2012) 211 LGERA 158

Judgment (158 paragraphs)

[1]

Solicitors: C J Boyd Solicitors (Applicants) Crown Solicitor's Office (Respondent) File Number(s): 2021/329948, 2021/329949, 2021/329950, 2021/329951, 2021/329952

[2]

Valuation of Land Act 1916 (NSW) Planning controls Town planning evidence Achievable GFA Finding on GFA Development timing Finding on development timing Valuation evidence Step 1: Determine rate per m2 of GFA for residential flat building development on precincts 1 and 8 Valuers' comparable sales evidence Consideration of comparable sales a. Comparability of Mr Hill sale 1 within Strathfield triangle and sales 2-5 outside Strathfield triangle Finding - Mr Hill sales comparable b. Mr Garnsey sales 2, 3 and 6 comparable Appropriate adjustments of relevant comparable sales (i) Adjustments of Mr Hill sale 1 (ii) Adjustments of Mr Hill sales 2-5 (iii) Mr Garnsey sales 2, 3 and 6 adjustments Overall conclusion on adjustments of comparable sales Step 2: Multiply rate per m2 of GFA by achievable GFA for each relevant parcel Step 3: Further adjustments (i) Applicable discount rate for precinct 1 Finding (ii) Allowance for future Cooper Street realignment - precinct 8 Finding Overall conclusion Orders

[5]

Valuation of Land Act 1916 (NSW)

Section 6A of the VL Act provides as follows: Part 1 Preliminary 6A Land value (1) The land value of land is the capital sum which the fee-simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona-fide seller would require, assuming that the improvements, if any, thereon or appertaining thereto, other than land improvements, and made or acquired by the owner or the owner's predecessor in title had not been made. (2) Notwithstanding anything in subsection (1), in determining the land value of any land it shall be assumed that - (a) the land may be used, or may continue to be used, for any purpose for which it was being used, or for which it could be used, at the date to which the valuation relates, and (b) such improvements may be continued or made on the land as may be required in order to enable the land to continue to be so used, but nothing in this subsection prevents regard being had, in determining that value, to any other purpose for which the land may be used on the assumption that the improvements, if any, other than land improvements, referred to in subsection (1) had not been made. (3) Notwithstanding anything in subsection (1), in determining the land value of any land, being land in relation to which, at the date to which the valuation relates, there was a water right - (a) the land value shall include the value of the right, and (b) it shall be assumed that the right shall continue to apply in relation to the land. (4) For the purpose of determining the value of a water right, the value of any water secured by, or referable to, that right is to be ignored.
The hypothetical, unencumbered fee simple of the land is to be valued, see Royal Sydney Golf Club v Federal Commissioner of Taxation (1955) 91 CLR 610; [1955] HCA 13 at 623 (Dixon CJ, McTiernan, Webb, Fullagar, Kitto JJ). Any improvements on the land being valued are not to be valued.
A bona-fide seller under s 6A(1) of the VL Act is aware of all matters affecting the market. The market is 'assumed to be an efficient market in which buyers and sellers have access to all currently available information that affects the property', Kenny and Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413; [1999] HCA 25 (Kenny) at [50] (McHugh J). In Spencer v Commonwealth (1906) 5 CLR 418; [1907] HCA 82 (Spencer) Griffith CJ at 432 stated the value of land as at what point 'would a [purchaser] desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?'. Factors impacting land value include the land's situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood of a rise or fall in the amount which one would otherwise be willing to fix as the value of the property, Kenny at [49] citing Spencer at 441 (Isaacs J).

[6]

Planning controls

The relevant parcels are all within an area known as the Strathfield triangle. The Canada Bay Local Environmental Plan 2013 (NSW) (CBLEP) and Strathfield Triangle Development Control Plan 2014 (STDCP) which commenced on 30 May 2014 are relevant controls. The City of Canada Bay Development Contributions Plan for the Strathfield Triangle 2014 (contributions plan) and the Strathfield Triangle Public Domain Plan 2014 (public domain plan) also apply to the relevant parcels.
The town planners agreed that under the CBLEP each of the relevant parcels is zoned R4 High Density Residential except for part of 27 Cooper Street which is zoned SP2 Infrastructure (Local Road). Part of Cooper Street is to be acquired by Canada Bay Council (the council) and realigned and used as a public road. The CBLEP establishes a minimum lot size of 1,500m2 for residential flat buildings. The area of each relevant parcel was agreed by the town planners to be 505.9m2 for 4 Clarence Street, 490.5m2 for 32 Cooper Street, 1,062m2 for 27 Cooper Street and 556.4m2 for 2 Leicester Avenue. The area of each relevant parcel falls below the threshold for residential flat buildings in the Strathfield triangle.
The STDCP contains detailed controls for various matters including height of buildings, setbacks and access arrangements. The amalgamation pattern at map 8 of the STDCP is relevant. Eight amalgamation precincts are identified. Under cl 3.7 of the STDCP redevelopment of land generally requires amalgamation with other parcels in the same precinct in accordance with the specified amalgamation pattern.
The parcels 4 Clarence Street and 32 Cooper Street are two of the eight lots in precinct 1. They do not share a boundary. The parcel 4 Clarence Street is at the north of the precinct and 32 Cooper Street is to the south. Their development potential is tied to their ability to be amalgamated with the other six lots, which are in different ownership.
The parcels 27 Cooper Street and 2 Leicester Avenue are both in precinct 8 which contains nine lots. The parcel 2 Leicester Avenue is a single lot. The parcel 27 Cooper Street contains four lots. The development of precinct 8 in the STDCP identifies the future realignment of Cooper Street. Only three of the lots in 27 Cooper Street are within precinct 8. The northern lot is zoned SP2 Infrastructure (Local Road) for the purposes of the realignment of Cooper Street. All the lots in precinct 8 are in the same ownership (or related entities). Part of the future development in the STDCP involves the creation of a road known as Leicester Lane running parallel with Leicester Avenue and behind numerous properties fronting Leicester Avenue. The following figure identifies much of the above information. Figure 5G - Amalgamation Strathfield triangle DCP prepared by BBC consulting planners for the Applicants
Generally the state of knowledge and the condition of the parcels and surrounding lots at 1 July 2019 are relevant.
Mr Chambers the Applicants' town planner stated that as at 1 July 2019 the council had not taken any action since the commencement of the STDCP in 2014 to implement infrastructure improvements or acquire land reserved for public purposes within the Strathfield triangle under planning documents in the STDCP, contributions plan and public domain plan. This was not in dispute between the parties.

[10]

Mr Chambers

Mr Chambers derived his GFA from a report prepared in 2019 by architects retained by the council for the purpose of reviewing the Strathfield triangle planning controls (GSA report). He adopted the architects' FSR/GFA estimates for precincts 1 and 8 with some adjustments to precinct 8 as the architects considered a larger area for that precinct. The architects calculated GFA using a building efficiency ratio of 83%.
In his primary report dated October 2022 Mr Chambers stated his advice to the hypothetical purchaser would be to retain a skilled architect to work up a concept/sketch design to identify a potential development yield. Mr Chambers acknowledged that while the council was in the process of preparing a planning proposal to change the planning controls within the Strathfield triangle, as at 1 July 2019 no information regarding this review was publicly available. He opined that had a hypothetical purchaser made enquiries of the council as to the likelihood of and timeframe for a planning proposal they would have been advised that:

development activity in the Strathfield triangle has stagnated;
the existing controls are going to be reviewed;
an analysis of the Strathfield triangle is to be undertaken involving studies of land economics, urban design and traffic;
a report on progress prepared by council officers is likely to go to council by the end of the year;
if council resolves to support the planning proposal, council will need to seek a gateway determination to permit the planning proposal to be exhibited;
the process could take years; and
the planning proposal once prepared, and once exhibited post gateway determination may not proceed.

In his supplementary report dated June 2023 Mr Chambers reiterated his prior opinion that accurate estimation of GFA yield should be undertaken by a skilled architect. He noted that the GSA report estimated a 'reasonably realistic FSR potential' under the existing controls which created a benchmark to assess and quantify any potential changes to the controls. Mr Chambers opined that the hypothetical purchaser would have been able to discuss likely GFA/FSR yields with the council and it was likely the advice would have been consistent with the estimations in the GSA report which he applied.
I note that Mr Chambers was not cross-examined on GFA.

[11]

Mr Haskew

Mr Haskew calculated building envelope areas (BEA) for the footprint of each level permitted by the STDCP. He calculated BEA by taking the 'Assumed Building Footprint' in map 6 of the STDCP and from that derived building envelopes having regard to the 'Height of Buildings Map' and STDCP building heights using geographic information system software. Mr Haskew then converted the BEA to GFA using the formula GFA=BEAx70% which is a 'rule of thumb' conversion rate set out in the relevant apartment design guide.
In the joint planners' report Mr Haskew acknowledged that 'architectural plans should be expected to be a more accurate method of predicting achievable GFA. This is primarily because in practice, it is frequently the case that compliant residential flat building designs can achieve better than 70% GFA efficiency'. Mr Haskew would 'advise a hypothetical prudent purchaser that his estimates are a worst case scenario and it is reasonably likely that careful architectural design could achieve a higher GFA efficiency'. Mr Haskew noted that he had not seen the 'architectural plans relied on by [Mr Chambers]'. [I note that during the hearing it was clarified that Mr Haskew's reference to 'architectural plans' was likely intended to mean the GSA report which did not contain such plans].
In oral evidence, Mr Haskew confirmed that had the hypothetical purchaser sought his advice on 1 July 2019 as to the GFA that could be obtained for precincts 1 or 8 he would have carried out the same calculations as above in [23]. He stated that the hypothetical vendor/purchaser, if made aware that the council was undertaking a review of planning controls, would approach the council to inquire into how existing planning controls may change in the future. Mr Haskew confirmed that he had since been shown the GSA report used by Mr Chambers and believed the GSA report was to inform the council as to whether a planning control proposal was needed. Mr Haskew opined that whether the hypothetical vendor/purchaser would be informed of the contents of the GSA report would not depend on the discretion of an individual officer but on the council's consideration of confidentiality in the documents.

[16]

Mr Chambers

Mr Chambers supported Mr Garnsey's estimate of five years for road access. Mr Chambers noted Mr Garnsey's evidence that precinct 8 required new road access and no work had started on either Leicester Lane or the realignment of Cooper Street. The STDCP came into effect in May 2014 and nothing had happened since. No land had been acquired by the council to build the new section of Cooper Street and none of the land for Leicester Lane had been dedicated. Mr Chambers believed Mr Garnsey's timeframe seemed reasonable as it remained uncertain as at 1 July 2019 that these works would be undertaken in the foreseeable future.
In oral evidence Mr Chambers agreed that the realignment of Cooper Street is 'works in kind' under the contributions plan so that it is capable of being an offer by an applicant for development to provide road works in the SP2 Infrastructure (Local Road) zoned land as full or partial payment of s 7.11 contributions pursuant to the Environmental Planning and Assessment Act 1979 (NSW). Mr Chambers was asked whether, on the assumption that owners of the Cooper Street realignment would be entities associated with the purchaser of precinct 8, the purchaser could make an offer to the council to dedicate some or all the realignment and build some or all the road in lieu of s 7.11 contributions. Mr Chambers agreed that they could, but that they would not as it would not be appropriate because the contributions collected by the council fell far below the costs of works including the acquisition of Cooper Street and the developer of precinct 8 would expect to be fairly compensated for doing the work itself. Mr Chambers stated it would be highly unlikely that a developer would obtain development consent for precinct 8 unless the council acquired the land and completed the realignment of Cooper Street.
Mr Chambers was asked whether it would be possible for the developer to have something short of a full realignment, such as a driveway or temporary access road, rather than dedicate the whole of the land and build the whole realignment. Mr Chambers believed that while this was technically possible, he did not think it would be possible for the driveway to intersect with Leicester Avenue, a classified road. He could not foresee any road in that location other than a road which met the specifications in the public domain plan and the STDCP for an intersection. Mr Chambers stated he was aware of the development consent obtained by his client on precinct 8 in 2021 where the Court granted a development application (DA) on a temporary basis when there was not any access off the realigned Cooper Street, see Leice Pty Ltd v City of Canada Bay Council [2021] NSWLEC 1627 (Leice).

[17]

Mr Haskew

Mr Haskew considered that no additional delay should be allowed for road access to precinct 8 as road access was to be provided by way of acquisition using s 7.11 contributions funding. Part of 27 Cooper Street in precinct 8 is zoned SP2 Infrastructure (Local Road) and the STDCP contemplated acquisition by the council to construct a new alignment of Cooper Street which would provide access to precinct 8. Mr Haskew considered that development consent for precinct 8 could not be reasonably withheld because the Cooper Street realignment had not yet been completed and the council would be obliged to deliver these public purpose works.
In oral evidence, Mr Haskew agreed that as at June 2019 the expectation would be that land listed for compulsory acquisition by the council for the realignment of Cooper Street would not be acquired in the next few years. Mr Haskew agreed that as at June 2019 the council had not sought dedication of land in lieu of s 7.11 contributions for laneway construction parallel to Leicester Avenue and the widening of Cooper Street. Mr Haskew believed this was because there were no development approvals triggering dedication of the land. He was not aware of any DAs being lodged prior to 2019. Mr Haskew agreed that given the lack of development in the Strathfield triangle he expected that the council's contributions fund in 2019 did not allow for all public purpose works to be constructed in that year. Asked if the council would not have the funds to pay the difference between the value of the land dedicated and the s 7.11 contributions in the event the land was more valuable than the contributions, Mr Haskew stated he was not able to provide his opinion without conducting further investigations.
Mr Haskew agreed that as at June 2019 there had been zero development within the Strathfield triangle since the adoption of the contributions plan and the STDCP. When pressed on whether as at June 2019 it would be anticipated that there would be any development in the Strathfield triangle in the near future, Mr Haskew stated that there was no evidence to the contrary and the planning controls allowed for development to occur.

[18]

Applicants' submissions

The focus must be the state of knowledge of the assumed hypothetical parties as at 1 July 2019 and not subsequent events. The hypothetical vendor/purchaser would, in determining the purchase price for land in precinct 8, be cautious and assume a period of five years for access from the realigned Cooper Street to be available in addition to the agreed 10 years.
As at 1 July 2019, the STDCP had been in effect for five years. The council had done nothing in terms of the acquisition of land for the realigned Cooper Street or the other public domain works the subject of acquisition under the contributions plan. Nor had it done anything with respect to the public domain works for dedication in lieu of s 7.11 contributions. The hypothetical purchaser as at 1 July 2019 would have been aware of the decision in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245. That decision, in relation to 38-42 Leicester Avenue Strathfield, established that there were significant commercial risks involved in purchasing land within the Strathfield triangle for the purpose of development upon the assumption that the council would carry out the public works required in the STDCP and the contributions plan.
The advice to the hypothetical vendor/purchaser would have been that it could not be known when the realigned Cooper Street would be acquired and developed by the council so as to permit development of the precinct in accordance with the STDCP, the contributions plan and the public domain plan nor could it be known what the prospects were of obtaining development of precinct 8 without the realigned Cooper Street.
The grant of development consent in 2021 in respect of precinct 8 in Leice is relevant only to the extent that it confirms a foresight. The difficulty and complications of temporary access are exemplified by, inter alia, condition 96 of that consent. The reference to this consent in cross-examination was subject to objection on the ground of relevance as it postdates the base date of 1 July 2019. In any event it would tend to support Mr Chambers' assessment and not Mr Haskew's because that consent when analysed is clearly impaired and largely uncommercial for the following reasons: 1. The consent provides for a 'temporary' access arrangement. The hypothetical buyer would have to allow for the fact that the completed building would only be accessible through a temporary driveway and that sometime in the future, the council may or may not acquire the land to extend Cooper Street; 2. That future acquisition and major disruption, the timing of which is entirely uncertain, would have to be factored in and recorded on title as some form of covenant; 3. The impacts of that future change upon the hypothetical development would be unknown, including whether there would be any future costs for the owners corporation of the building to bear; and 4. Therefore each apartment sold in that hypothetical development would have to disclose this to purchasers and each purchaser would no doubt discount their interest accordingly.
Evidence of future events is admissible to prove a foresight, Housing Commission of NSW v Falconer [1981] 1 NSWLR 547 (Falconer) at 558B (Hope JA). In Falconer it was accepted that a prudent purchaser properly advised would have anticipated a significant rise in building costs, at 558F-G. In the present case, there is no evidence about any expectation of temporary or alternative access at the base date. This is not a case of hindsight to confirm a foresight. The submission by the VG that at 1 July 2019 a hypothetical vendor/purchaser of precinct 8 would likely have been told by the council about alternative access is pure speculation.
The VG led no evidence which directly countered Mr Chambers' oral evidence, which is compelling and should be accepted.

[19]

Valuer-General's submissions

Mr Haskew's opinion is that there would be no delay in obtaining development consent on account of the realignment of Cooper Street. The new alignment of Cooper Street is to be constructed over land comprising part of 27 Cooper Street and the adjoining parcel to the east. The parcel to the east is also owned by a company associated with the Applicants. Thus, just as there is agreed to be no adjustment for delay in amalgamating precinct 8 because the purchaser will own all the parcels in the precinct following the hypothetical sale, neither is an adjustment warranted for delay in constructing the new alignment of Cooper Street as the purchaser will own or have access to all the parcels on which the new road is to be constructed.
Mr Chambers' oral evidence was that the precinct 8 consent granted in 2021 did not require access to be provided from the realigned Cooper Street but that temporary access from Cooper Street was approved. Although the consent was granted after 1 July 2019, it is evidence of what the hypothetical vendor/purchaser of precinct 8 would likely have been told by the council on the valuation date about alternative access. This directly relates to (and contradicts) Mr Chambers' expectation that alternative access would be highly unlikely. On either basis, the Court is able to have regard to the 2021 consent, see Falconer at 558B, Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184 at [35]-[41].
The evidence supports the conclusion that the vendor/purchaser of precinct 8 on 1 July 2019, having considered the issue of alternative access and after making enquiries to the council, would have expected that some form of alternative access to the realigned Cooper Street would likely be approved. The fact that entities associated with the Applicants owned the land for the Cooper Street realignment would provide flexibility for the purchaser to self-provide the alternative access.
In reply, Mr Garnsey agreed that a purchaser of precinct 8 would have considered whether there were any alternatives for access other than via the realigned Cooper Street. It strains credulity to suggest that the purchaser, having considered alternatives, would not have approached the council about them.

[20]

Finding on development timing

At issue is whether Mr Garnsey's allowance of an additional five years for road access for precinct 8 is warranted based on the town planners' evidence. The same or related entities owned all the land in precinct 8 as at 1 July 2019. Given the lack of progress on medium density residential development in the Strathfield triangle for several years the Council did not have s 7.11 contribution funds to spend on public access being the realigned Cooper Street as provided in the STDCP. The prudent hypothetical purchaser would not assume the provision of public access.
Given the whole of the land in precinct 8 was in one ownership would the prudent hypothetical purchaser assume they had an ability to manage access on a temporary basis across part of precinct 8? The VG argues that such a prudent purchaser of the whole of precinct 8 would be likely to consider that alternative access arrangements would be able to be made in any DA lodged with the council. That foresight is confirmed by the Applicants' successful grant of development consent in 2021 in Leice for a medium residential development which includes temporary access arrangements across part of precinct 8. While after the relevant date of 1 July 2019, consideration of such matters is permissible if this confirms a foresight, rather than simply operating in hindsight, as held in Falconer at 558B. This was essentially acknowledged by Mr Garnsey in oral evidence when he agreed that a purchaser of precinct 8 would have considered the possibility of alternative access arrangements. The Applicants' submissions above in [44(a)]-[44(d)] that the consent conditions for its development consent were impaired and largely uncommercial appear to be counter intuitive given that the Applicants sought to obtain that development consent. The submissions are largely assertions in any event, and not obviously supported by the development consent conditions to which I was referred.
No allowance for development timing in relation to precinct 8 is warranted.

[21]

Valuation evidence

In his primary report, Mr Garnsey accumulated sales of individual lots zoned R4 High Density Residential the same as the Strathfield triangle in an adjacent locality. Sale 1 is now excluded as not comparable. Sales 2-6 were purchased for amalgamation into development sites for residential flat buildings upon achieving 1,500m2 of total area. His analysed land values follow: 1) Sale 2 was adjusted from $2,350,000 to $2,250,00 by deducting $100,000 for the added value of the cottage. 1) Sale 3 was adjusted from $2,520,000 to $2,420,000 by deducting $100,000 for the added value of the cottage. 1) Sale 4 was adjusted from $2,660,000 to $2,560,000 by deducting $100,000 for the added value of the cottage. 1) Sale 5 was adjusted from $2,320,000 to $2,220,000 by deducting $100,000 for the added value of the cottage. 1) Sale 6 was adjusted from $2,700,000 to $2,600,000 by deducting $100,000 for the added value of the cottage.
The resultant rate of potential GFA for the sales, if amalgamated, ranged from $2,079/m2 to $2,619/m2.
Mr Garnsey was instructed to undertake his valuation of the relevant parcels based on the Applicants' town planner's opinion of the achievable GFA on an amalgamated precinct basis. Mr Garnsey adopted a GFA rate for the amalgamated parcels of $1,870/m2. This rate was then adjusted down by -15% reflecting lack of development consent, as this was the midpoint of a normal ‑10% to -20% range based on the likely complexity of achieving the development. He adopted an adjustment of -10% for the Strathfield triangle 'ghetto effect', reflecting the number of vacant fenced out lots, dilapidated dwellings, and rubbish in the streets with no clear timeline as to when the precinct will be developed. A further negative adjustment, for proximity to the railway, was applied reflecting his observation that developers apply a 'dealing with government' discount to sites adjoining infrastructure as concurrence from a government authority slows down and complicates the development process. Mr Garnsey applied an adjustment of -15% for precinct 1. With a total adjustment of -40% he derived a rate of $1,100/m2 for precinct 1. He applied an adjustment of -10% for precinct 8 for railway proximity. With a total adjustment of -35% he derived a rate of $1,200/m2 for precinct 8.
These rates were then applied to the GFA for each parcel (based on total GFA of the precincts divided by the site area of the individual parcel as a percentage of the total site area). The relevant parcels in precinct 1 were then further adjusted by 10% per annum (pa) for 10 years to reflect the agreed timeframe required to achieve amalgamated ownership of this precinct. The relevant parcels in precinct 8 were discounted by 10% pa for five years to reflect the time required to achieve the realignment of Cooper Street.
In his primary report Mr Hill accumulated sales zoned R4 High Density Residential under the CBLEP, B2 Local Centre under the Burwood Local Environmental Plan 2012 (BLEP) and B4 Mixed Use under the BLEP, Strathfield Local Environmental Plan 2012 (SLEP) and Auburn Local Environmental Plan 2010 (ALEP) purchased for development of residential flat buildings or mixed use residential, all currently under development or completed except for Sale 1. Mr Hill then analysed land values as follows: 1) Sale 1, zoned R4 High Density Residential under the CBLEP, was adjusted from $11,010,000 to $10,755,000 to account for a delayed settlement. 2) Sale 2, zoned B2 Local Centre under the BLEP, was adjusted from $4,900,000 to $4,505,000 by adding a demolition cost of $50,000 and deducting the added value of an existing DA by $245,000, reflecting 5% of sale price. 3) Sale 3, zoned B4 Mixed Use under the BLEP, was adjusted from $31,500,000 to $31,400,000 by adding a demolition cost of $260,000 and deducting the added value of rental for 6 months of $360,000. 4) Sale 4, zoned B4 Mixed Use under the SLEP, was adjusted from $13,200,000 to $12,185,000 by adding a demolition cost of $302,700 and deducting the added value of an existing DA by $1,320,000, reflecting 10% of sale price. 5) Sale 5, zoned B4 Mixed Use under the ALEP, was adjusted from $24,000,000 to $23,000,000 by adding a demolition cost of $200,000 and deducting the added value of an existing DA by $1,200,000, reflecting 5% of sale price.
The resultant rate of potential GFA for the sales ranged from $1,610/m2 to $1,821/m2 for sales 1, 2, 4 and 5 with sale 3 standing out with a rate of $3,307/m2.
Mr Hill then adjusted the analysed rates for location, size, shape, access and views by comparing them directly to both precinct 1 and precinct 8, selecting an appropriate GFA rate from the range resulting from those adjustments. From this, Mr Hill adopted a GFA rate of $1,915/m2 for the parcels in precinct 1 and $2,000/m2 for the parcels in precinct 8. These rates were then applied to the GFA for each parcel as advised by the VG's town planner based on the contribution of individual parcels to the development potential of each precinct based on the planning controls (ultimately a different approach was taken by the town planners in the lead up to the hearing).
The relevant parcels in precinct 1 were then further adjusted by 7.5% pa for 10 years to reflect the time required to achieve an amalgamated ownership of this precinct. The land values of the relevant parcels in precinct 8 were discounted by 25% to reflect the overall risk in the amalgamation of the parcels with adjoining land and achieving DA approval on the total amalgamation pattern. Mr Hill opined 'the hypothetical vendor of the subject land therefore could not expect to achieve, nor would the adjoining owner be expected to pay, full value for this land parcel and that a discount must apply'.
The valuers agreed in joint conferencing that the operative assumptions for determining the land value of the land are those in s 6A(1) of the VL Act. The valuers agreed that the highest and best use of each individual parcel was as part of a residential flat building development following the amalgamation of the precinct in which they were located. The agreed method was as follows: 1. Step 1: determine a rate per m2 of GFA for residential flat building development on the whole of the relevant precinct (i.e. either precinct 1 or precinct 8) as if that precinct were an amalgamated parcel, by analysing and adjusting comparable sales; 2. Step 2: multiply this rate by the appropriate achievable GFA for the relevant parcel determined as a proportion of the precinct GFA referrable to the land area of each relevant parcel; 3. Step 3: make further adjustments to this amount including an adjustment to account for delay in achieving amalgamation of the relevant precinct (based on an estimated time for amalgamation to occur and discount rate).
The town planners' respective calculations were much closer when the site apportionment method was used. Mr Garnsey adopted the GFA calculations of the VG's town planner Mr Haskew, while Mr Hill adopted the GFA calculations of the Applicants' town planner in the joint planners' report.
Mr Garnsey maintained his adjustment to sales for ghetto effect and proximity to the railway. He added adjustments for location, size, shape, access, and views, consistent with Mr Hill, while abandoning his adjustment for lack of development consent. He explained he altered his analysis and adjustments to homogenise the valuers' adjustment table as much as possible. While this increased his adjustments to between -50% and -60% for his sales, his adopted GFA rate remained the same. His adjustments for time to amalgamate precinct 1 and achieve the realignment of Cooper Street for precinct 8 remained the same.
Mr Hill maintained his adjustment for location, size, shape, access, and views. He addressed Mr Garnsey's adjustments for ghetto effect and proximity to railway and applied no adjustment for these. His adopted GFA rate remained the same. His adjustments for time to amalgamate precinct 1 and for risk of amalgamation in precinct 8 remained the same.
While agreeing on the method to be used, there was dispute between the valuers broadly as follows: 1. Step 1: identification of comparable sales: 1. the comparability of Mr Hill's sales; 2. the comparability of Mr Garnsey's sales; 3. the appropriate adjustments to be made to the relevant comparable sales; 1. Step 2: the appropriate achievable GFA (determined by the town planners' evidence considered earlier); and 2. Step 3: firstly, the appropriate overall discount rate and, secondly, the discount period if any for public road access of realigned Cooper Street in precinct 8.

[24]

Mr Garnsey's sales

Following joint reporting Mr Garnsey calculated the analysed GFA of each comparable sale and then made adjustments to apply it to the parcels in each precinct as set out previously.
Sale 2 at 1 Derowie Street Homebush was purchased with a contract date of 5 May 2017 for $2,350,000. It had an area of 481m2 and was zoned R4 High Density Residential under the CBLEP with a potential GFA identified as 1,082.25m2 (based on a FSR of 2.25:1). It was purchased by a related entity to that which purchased 3 and 5 Derowie Avenue and the adjoining properties at 3, 4 and 6 Kanoona Avenue, resulting in a total of six lots in the same ownership. DA 2016/134 was lodged on 17 August 2016 and determined on 15 November 2016 for the erection of a five storey residential flat building on the property at 1-5 Derowie Avenue. The DA has not been progressed as was evident on the view.
Sale 3 at 8 Kanoona Avenue Homebush was purchased with a contract date of 14 March 2017 for $2,520,000. It had an area of 462m2 and was zoned R4 High Density Residential under the CBLEP with a potential GFA identified as 924m2 (based on a FSR of 2:1). Sale 6 at 12 Kanoona Avenue Homebush was purchased with a contract date of 11 March 2016 for $2,700,000. It had an area of 583m2 and was zoned R4 High Density Residential with a potential GFA identified as 1,166m2 (based on a FSR of 2:1). Sales 3 and 6 were the subject of DA 2016/124.1, together with 10 Kanoona Avenue, for demolition of the existing structures and construction of a seven storey residential flat building. The DA was lodged on 15 September 2016 and approved on 1 February 2017. On 17 May 2023, DA 2023/60 was lodged for the demolition of existing structures, lot consolidation and construction of a residential flat building with a 90 place childcare centre on the ground floor. Since the new DA was lodged, 12 Kanoona Avenue has sold.
Sale 4 at 5 Hillcrest Street Homebush was purchased with a contract date of 17 February 2017 for $2,660,000. It had an area of 441m2 and was zoned R4 High Density Residential under the CBLEP with a potential GFA identified as 1,102.5m2. Sale 5 at 7 Hillcrest Street Homebush was purchased with a contract date of 16 December 2016 for $2,320,000. It had an area of 441m2 and was zoned R4 High Density Residential under the CBLEP with a potential GFA identified as 1,102.5m2. Sales 4 and 5 are adjoining properties purchased by a related entity to the owner of the adjoining 3 Hillcrest Avenue. The combined areas of the three properties may be insufficient to achieve the minimum 1,500m2 for residential flat development. No DA has been sought for such development since the purchase of these properties.
Sales 2-6 were selected as they were near the Strathfield triangle and were all zoned R4 High Density Residential under the CBLEP, the same as the relevant parcels. All sales were of smaller lots which required future amalgamation with next door sites to enable development as residential apartment buildings. Some sales were relied on because the VG's contractor had referred to these in the review of the Applicants' objection.
The analysed GFA rate for each sale was adjusted (noting different analysis by each valuer depending on his approach to valuing houses on the sale lots). Mr Garnsey deducted $100,000 for houses adding value to a lot as these potentially provided an income stream. (Mr Hill made no adjustment for houses).
I find below that Mr Garnsey's sales 2, 3 and 6 are comparable and therefore only refer to these here. For precinct 1 Mr Garnsey made adjustments for location (nil), size (-35%), shape (-10%), access (nil for sale 2 or 5% for sales 3 and 6), views (10%), ghetto effect (-10%) and railway proximity (-15%). His total adjustments were -60% for sale 2, -55% for sale 3 and -55% for sale 6. Mr Garnsey's adjusted GFA rate was $1100/m2 for precinct 1.
Similar adjustments were made in relation to precinct 8 except for railway proximity (-10%). Mr Garnsey's total adjustments were -55% for sale 2, -50% for sale 3 and -50% for sale 6. His adjusted GFA rate was $1200/m2 for precinct 8.

[25]

Mr Hill's sales

In his primary report, Mr Hill relied upon five sales. Sale 1 at 38-42 Leicester Avenue Strathfield located in the Strathfield triangle was purchased with a contract date of 30 June 2015 for $11,010,000. Leicester Avenue is categorised as a main road for the purposes of the Roads Act 1993 (NSW) and is a very busy street. Sale 1 had a developable GFA of 5,905.8m2 and was zoned R4 High Density Residential under the CBLEP with a maximum height of 25m. DA 2016/0429 was lodged on 1 November 2016 for demolition of the existing structures and construction of an eight storey residential flat building. The application was subsequently refused by the council and ultimately the NSW Court of Appeal arising from difficulties in achieving access over neighbouring land. Consequently, the development has not proceeded.
Sale 2 at 319-329 Liverpool Road Strathfield was purchased in separate transactions with contract dates of 18 February 2019 and 8 March 2019 for $4,900,000. It had an area of 1,220.3m2 and was zoned B2 Local Centre under the BLEP with a developable GFA of 2,689.6m2 and a maximum height of 20m. Half the site (319-323 Liverpool Road) was sold with existing DA 2018/48.1. An amendment was lodged and approved after the sale dates for demolition of existing improvements and the construction of a six storey mixed use development which was being built when seen on the view.
Sale 3 at 15-19 Clarence Street Burwood was purchased with a contract date of 24 April 2019 for $31,500,000. It had an area of 3,165m2 and was zoned B4 Mixed Use under the BLEP with a developable GFA of 9,495m2 and a maximum height of 30m. DA 26/2019 was lodged on 18 March 2019 for demolition of existing improvements and construction of a part nine, part 10 storey residential flat building which has occurred.
Sale 4 at 218 Parramatta Road Homebush was purchased with a contract date of 28 February 2018 for $13,200,000. It had an area of 3,027m2 and was zoned B4 Mixed Use under the SLEP with a developable GFA of 7,567.5m2 and a maximum height of 20m. The property was sold with DA 2016/96 lodged on 22 December 2016 for demolition of the existing structures and construction of a six storey mixed use development which has occurred.
Sale 5 at 18-24 Railway Street Lidcombe was purchased with a contract date of 6 October 2017 for $24,000,000. It had an area of 2,284m2 and was zoned B4 Mixed Use under ALEP with a developable GFA of 11,420m2 and a maximum height of 32m. DA 423/2016 was lodged on 30 September 2016 and approved on 20 March 2018 after the settlement date of 7 December 2017. The DA approved the demolition of existing structures and construction of an 11 storey mixed use building which has occurred.
The five sales relied upon by Mr Hill were selected as they were residential unit site sales purchased as ready to be utilised for that use being amalgamated sites. Mr Hill considered his sale 1 to be the best evidence as it was in the Strathfield triangle.
For precinct 1 Mr Hill made adjustments for location (5% for sale 1, 10% sales 2 and 5, -20% sale 3 and 15% for sale 4), size (-15% for sale 1, -20% for sale 2 and -10% sales 3-5), shape (nil for sales 1, 3-5, 10% for sale 2), access (5% for sales 1, 3, 10% for sale 2 and -5% for sales 4 and 5), views (10% for sales 1, 2 and 4, -10% sale 3 and nil for sale 5). He made no adjustments for ghetto effect and railway proximity. His total adjustments were 5% for sale 1, 20% for sale 2, -35% for sale 3, 10% for sale 4 and -5% for sale 5. Mr Hills's adjusted GFA rate was $1915/m2 for precinct 1.
Similar adjustments were made in relation to precinct 8 for location, size, shape, ghetto and railway proximity. He made different adjustments for access (10% for sales 1 and 3, 15% for sale 2, nil for sale 4 and -10% for sale 5), and views (10% for sales 1, 2 and 5, -5% for sale 3 and 15% for sale 4). His total adjustments were 10% for sale 1, 25% for sale 2, ‑25% for sale 3, 20% for sale 4 and nil for sale 5. Mr Hills's adjusted GFA rate was $2000/m2 for precinct 8.

[28]

Oral evidence

In oral evidence, it was put to Mr Garnsey that his sales were parts of future amalgamated parcels. Mr Garnsey agreed. It was also put to Mr Garnsey that because his sales were parts of future amalgamated parcels that Mr Hill's sales were 'an inherently more reliable starting point to determine the value of the amalgamated [precinct] 1 and [precinct] 8' and that because his adjustments to Mr Hill's sales were of a 'significantly lower magnitude' than those he applied to his own sales Mr Garnsey's own sales were 'an inherently more unreliable starting point'. Mr Garnsey agreed with both contentions.
Mr Garnsey stated his sales should be relied on as they are the 'same sort of product' as the precincts, including because they are near the Strathfield triangle, have similar zoning and are in a similar situation of being consolidated for development in an R4 High Density Residential zone. Sales in the Homebush area have been used previously by valuers as benchmarks to apply to the Strathfield triangle.
When asked about the significance of his sale 2, as an example, Mr Garnsey responded he focused on sales more temporal to 1 July 2019.
Mr Garnsey selected sales which were more reflective of the current situation of the parcels in the Strathfield triangle. He then adjusted them to reflect the size difference between the sales and the amalgamated precincts as if ready to develop as envisaged by step 1 of the valuation exercise agreed by the valuers.
Mr Hill agreed that sale 1 was his main sale. It was put to him that that the purchaser assumed that access could be obtained to the site for the purpose of development to which Mr Hill agreed. It was further put that the assumption that access could be obtained to the site for the purpose of redevelopment would not be reflected in the price as at 1 July 2019 to which Mr Hill agreed. He confirmed, however, that in his view the price paid for sale 1 reflected what a developer would pay on the assumption that they would have no access problems. It was also put to Mr Hill that the sale price would only be considered excessive in hindsight, after the access issues arose, to which Mr Hill agreed. Mr Hill opined it was a good sale because the purchase was made on the assumption that there were no access problems, and the block could be developed in line with the apartment design guide.

[29]

Applicants' submissions

The submission that Mr Garnsey's sales are not truly comparable should be rejected based on the principles in Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111; [2003] HCA 8 (Maurici). Given Mr Garnsey's sales were parts of future amalgamated parcels and Mr Hill's sales were of actual amalgamated parcels, Mr Garnsey was only referring to Mr Hill's sales as a starting point. These circumstances are in a very different category to Maurici where the valuer relied on sales of vacant land and ignored reasonably contemporaneous sales of comparable improved land contrary to s 6A of the VL Act.
The valuation methodology adopted by Mr Hill and accepted by Mr Garnsey is not to value the lots by direct comparison with comparable sales. The first step was to determine a rate per m2 on the whole of the two amalgamated precincts as if each of those precincts were an amalgamated parcel. This was the starting point from which the adjustments were to be made. The comparable sales of both Mr Hill and Mr Garnsey establish an assumed state of amalgamation and readiness for development which did not accord with the true circumstances of precinct 1 as at 1 July 2019, which at that point had not been amalgamated and was not capable of being developed for the highest and best use.
Mr Garnsey considered that his sales 2-6 were more reliable than Mr Hill's sales 2-5. It was also clearly to be inferred that Mr Garnsey's sales 2-6 were acquired for amalgamation and development as residential flat buildings. Mr Garnsey's sales 2-6 are more comparable to the actual circumstances of the relevant parcels as at the base date than Mr Hill's sales 2-5, having regard to the zoning of the relevant parcels and their locality.
Mr Hill's comparable sales 1-5 were capable of being developed without any further amalgamation. In that sense they were not sales that were comparable to the relevant parcels. Consistently with the chosen methodology they were sales to establish an assumed state of affairs for the purpose of the valuation modelling.
On the basis that Mr Garnsey's sales are of greater assistance than Mr Hill's sales 2-5 there can be no basis for the submission that Mr Garnsey has ignored a principle of the assessment of value or did not proceed rationally, as the terms are used in Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 and set out with apparent approval in Maurici at [18].

[32]

a. Comparability of Mr Hill sale 1 within Strathfield triangle and sales 2-5 outside Strathfield triangle

Mr Hill considered his sale 1 as the most comparable sale for step 1. It is located in the Strathfield triangle and was a sale in June 2015 of an amalgamated precinct intended to be developed for residential apartments. He identified it as a property that was marketed properly and purchased by a developer for multi storey residential development. In oral evidence, he considered it to be a good sale because it was purchased on the assumption there were no access problems and that the entirety of the precinct could be developed in line with the apartment design guide for the Strathfield triangle.
Mr Garnsey in the joint valuers' report considered Mr Hill's sale 1 should be treated with caution due to events which occurred after the purchase in June 2015. A DA was refused by the council in November 2016, and by the Court in July 2019. Mr Garnsey from discussions with the Applicants and a review of court cases believed the consent was refused in part as the owner of the adjoining land did not consent to access over that land, which was zoned RE1 Public Recreation and would provide for the future creation of Leicester Lane. Mr Garnsey was further advised by the Applicants that the purchase was made on the assumption that access was to be provided by the council through the acquisition of the adjoining land. This had not occurred likely because no s 7.11 contributions in the Strathfield triangle had been received due to stalled development of this area.
In oral evidence, Mr Garnsey accepted that the sale price was paid for sale 1 assuming there were no access difficulties. He also conceded that for the purpose of step 1, which was to determine the GFA rate that would be paid at a point in time when there is no impediment to developing the whole of the precinct, it would be the perfect sale.
Mr Hill's sales 2-5 provided support to his analysis of sale 1, accepting they had different zoning. In oral evidence Mr Garnsey accepted these sales were comparable, albeit noting they had different zoning.

[34]

b. Mr Garnsey sales 2, 3 and 6 comparable

Mr Garnsey's sales 2, 3 and 6 provide useful comparability if considered as making up part of amalgamated parcels permitted by the development approvals of which they form a part rather than as individual parcels, as he intended. This is consistent with the agreed valuation approach for the relevant parcels. Mr Garnsey's sales 2, 3 and 6 are located close to the Strathfield triangle in Homebush with the same zoning. They are smaller sites purchased with the intention to develop, evidenced by adjoining ownerships and DAs made prior to sale 2 and subsequent to sales 3 and 6. That the developments have not progressed does not prevent reliance on them, in the same way that Mr Hill's sale 1 has also not progressed. The initial intention of the purchaser makes them suitable for comparison if considered as a part of the overall GFA of a development site. The total GFA for those potential development sites was identified in evidence as 3,000m2 for sales 3 and 6, and 3,375m2 for sale 2. Mr Garnsey made a large size adjustment of -35% to render the sales comparable to the larger precincts. The site areas for each potential amalgamated development site would exceed the minimum area of 1,500m2 required to permit a residential flat building. This falls between the GFA of Mr Hill's sales 1 (5,905.8m2) and 2 (2,689.6m2) confirming the comparability of Mr Garnsey's three sales.
Contrary to the VG's submission, Mr Garnsey's agreement in cross‑examination that Mr Hill's amalgamated parcels were more comparable given the agreed methodology does not completely remove the relevance of Mr Garnsey's sales. As the Applicants submitted, they do reflect the circumstance of the relevant parcels, are close by with the same zoning and can be considered as purchased with the intention they would amalgamate with next door lots, the reason for their selection by Mr Garnsey.
Mr Garnsey's analysed land value for his sales, arrived at by deducting the added value of the cottages still standing, is appropriate given their continuing use. Mr Garnsey's sales 2, 3 and 6 are able to be applied as relevant comparable sales.

[49]

Finding

The VG did not dispute concurrence was required. There were two elements to the adjustment made by Mr Garnsey, increased cost of development and time delay. The cost evidence of Mr Garnsey was generic with no detail provided on estimated construction costs. Mr Garnsey and Mr Hill agreed that it would take 12-18 months to obtain consent for these types of projects and would involve liaison with many authorities and inquiries with each authority would be undertaken in parallel. As the VG submitted, delay in concurrence from TfNSW would only require adjustment if the delay extended beyond a 12-18 month period.
Clause 86 of the Infrastructure SEPP refers to development that involves the penetration of land to a depth of at least 2m below existing ground level on land within 25m (measured horizontally) of a rail corridor. The clause requires that a consent authority must not grant consent to such development without the concurrence of the chief executive officer of the rail authority of the rail corridor. It also requires that written notice to TfNSW must be given within seven days of a DA being lodged. Subclause (5) states the consent authority may grant development consent after 21 days has passed since notice is given and the chief executive officer has not granted or refused to grant concurrence. Both parties referenced the conditional development approval granted in Leice for precinct 8. It is noted in that judgment at [17] that the concurrence from the railway authority took some 12 months from notification to concur.
While observing that the information before the Court suggests different timeframes for obtaining concurrence from TfNSW, I am satisfied the 12-18 month timeframe for making enquiries with a range of government authorities would be highly likely to include concurrence being obtained from the rail authority and would not further delay consideration of any DA by the consent authority. I do accept that achieving that concurrence may require additional works and therefore cost that would not otherwise be required resulting in an adjustment to most of the sales evidence. In the absence of any evidence of what works may be required, I will allow an adjustment of -5% for both precincts on that basis.

[78]

Overall conclusion on adjustments of comparable sales

Based on the foregoing, the adjustment of sales applied to precinct 1 resulted as follows: 1. Mr Hill's sale 1 had a total adjustment of -10% and the derived rate of $1,639/m2. 2. Mr Hill's sale 2 had nil adjustment and the derived rate of $1,675/m2. 3. Mr Hill's sale 3 had a total adjustment of -50% and the derived rate of $1,654/m2. 4. Mr Hill's sale 4 had a total adjustment of -7.5% and the derived rate of $1,489/m2. 5. Mr Hill's sale 5 had a total adjustment of -15% and the derived rate of $1,712/m2. 6. Mr Garnsey's sale 2 had a total adjustment of -25% and the derived rate of $1,559/m2. 7. Mr Garnsey's sale 3 had a total adjustment of -25% and the derived rate of $1,964/m2. 8. Mr Garnsey's sale 6 had a total adjustment of -25% and the derived rate of $1,673/m2.
Mr Hill's sale 1 is in the Strathfield triangle and is subject to the same development controls as precinct 1, making the adjustment of this sale less subjective than the other sales. Sale 1 is the best comparable sale for precinct 1 and is adequately supported by Mr Hill's sales 2 and 5, and Mr Garnsey's sales 2 and 6.
The adjustment of sales applied to precinct 8 resulted as follows: 1. Mr Hill's sale 1 had nil adjustment and the derived rate of $1,821/m2. 2. Mr Hill's sale 2 had a total adjustment of 5% and the derived rate of $1,759/m2. 3. Mr Hill's sale 3 had a total adjustment of -35% and the derived rate of $2,150/m2. 4. Mr Hill's sale 4 had a total adjustment of 7.5% and the derived rate of $1,731/m2. 5. Mr Hill's sale 5 had a total adjustment of 5% and the derived rate of $2,115/m2. 6. Mr Garnsey's sale 2 had a total adjustment of -15% and the derived rate of $1,767/m2. 7. Mr Garnsey's sale 3 had a total adjustment of -15% and the derived rate of $2,226/m2. 8. Mr Garnsey's sale 6 had a total adjustment of -15% and the derived rate of $1,896/m2.
Mr Hill's sale 1 in the Strathfield triangle is subject to the same development controls as precinct 8, making the adjustment of this sale less subjective than the other sales. Mr Hill's sales 1, 2, 4 and 5 required the least total adjustment. The adjusted rate for Hill sale 1 is below the midpoint of the adjusted rates for those sales. Mr Garnsey's sales 2 and 6 also provide support for that rate.
Based on the foregoing a rate of $1,639/m2 of GFA is adopted for precinct 1. A rate of $1,821/m2 of GFA is adopted for precinct 8.

[106]

The VG did not dispute concurrence was required. There were two elements to the adjustment made by Mr Garnsey, increased cost of development and time delay. The cost evidence of Mr Garnsey was generic with no detail provided on estimated construction costs. Mr Garnsey and Mr Hill agreed that it would take 12-18 months to obtain consent for these types of projects and would involve liaison with many authorities and inquiries with each authority would be undertaken in parallel. As the VG submitted, delay in concurrence from TfNSW would only require adjustment if the delay extended beyond a 12-18 month period.
Clause 86 of the Infrastructure SEPP refers to development that involves the penetration of land to a depth of at least 2m below existing ground level on land within 25m (measured horizontally) of a rail corridor. The clause requires that a consent authority must not grant consent to such development without the concurrence of the chief executive officer of the rail authority of the rail corridor. It also requires that written notice to TfNSW must be given within seven days of a DA being lodged. Subclause (5) states the consent authority may grant development consent after 21 days has passed since notice is given and the chief executive officer has not granted or refused to grant concurrence. Both parties referenced the conditional development approval granted in Leice for precinct 8. It is noted in that judgment at [17] that the concurrence from the railway authority took some 12 months from notification to concur.
While observing that the information before the Court suggests different timeframes for obtaining concurrence from TfNSW, I am satisfied the 12-18 month timeframe for making enquiries with a range of government authorities would be highly likely to include concurrence being obtained from the rail authority and would not further delay consideration of any DA by the consent authority. I do accept that achieving that concurrence may require additional works and therefore cost that would not otherwise be required resulting in an adjustment to most of the sales evidence. In the absence of any evidence of what works may be required, I will allow an adjustment of -5% for both precincts on that basis.

BSM Holdings Pty Ltd v Valuer-General of New South Wales; Omaya Investments Pty Ltd v Valuer-General of New South Wales

At a glance

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Judgment (158 paragraphs)

Legislation Cited (6)

Cases Cited (16)