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[2024] NSWLEC 57
Land and Environment Court (NSW)
2024-03-07
Pain J
Original judgment source is linked above.
Solicitors: O'Loughlin Westhoff (Applicants) Crown Solicitors Office (Respondent) File Number(s): 2021/175742, 2021/175754
JUDGMENT
Highest and best use of land
Quantity surveyors
Planning Controls
Architects
Supplementary individual and joint reports (boarding house)
Town planners
A. Would hypothetical parties expect that a basement car park can be built on John Street? - structural engineering evidence
Mr Bitar
Mr Appleyard
Applicants' submissions
Respondent's submissions
Hypothetical parties would be likely to assume no basement car parking feasible on John Street
Valuers
Mr Field (mixed use)
Church Avenue
John Street
Mr Hill (mixed use and boarding house)
Church Avenue
Mixed use sales
Boarding house sales
John Street
Choice and characterisation of sales
Highest and best use for Church Avenue
Highest and best use for John Street
Highest and best use for Church Avenue
Highest and best use for John Street
Adjustments
Applicants' submissions
Respondent's submissions
Consideration of highest and best use
A) Assessment by valuers of risks informing highest and best use
b) Boarding house market more valuable than mixed use market
C. GFA rate - adjustments of comparable sales for mixed use
Size
Contingency
Shadowing
Access
D. GFA rates - adjustments of comparable sales for boarding house use
Adjustment for planning risk
Section 7.11 contribution adjustment
Conclusion
Costs
Orders
ANNEXURE A ANNEXURE B DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2024
(1) a boarding house use is permissible pursuant to the land use table in the BLEP;
(2) a boarding house use is agreed by the town planners in their first joint report to be one of two possible highest and best uses;
(3) a boarding house use can comply with all mandatory planning controls, ARH SEPP cll 29 and 30;
(4) a boarding house use does not require a costly basement build;
(5) a boarding house use is well supported by Mr Hill's sales evidence, in particular sale 5 which required a clause 4.6 variation;
(6) a boarding house use was even more likely to be approved on the properties than sale 5 with a green travel plan given the properties' even more proximate location to the train station and bus interchange and for which a DA could be granted with no clause 4.6 required;
(7) both sales 5 and 6 demonstrate that the market in the valuing year preferred boarding house over mixed use developments. Mr Hill's uncontroverted evidence showed that both sales at the time of purchase had approved DAs for a mixed use development but were in fact purchased for a boarding house use and both were subsequently approved for and built as boarding houses;
(8) boarding house use has been approved without car parking on numerous other sites as demonstrated by Mr Grech above in [44] and Mr Hill's sales 5-8;
(9) Mr Hill's analysis of the sales evidence shows the market was paying a little more for boarding house use than for mixed use. Mr Hill showed a GFA rate range for John Street of $2,614/m2-$2,926/m2 for mixed use development with basement car parking in comparison to boarding house development with no parking which showed a GFA rate range of $2,825/m2-$3,202/m2;
(10) Mr Hill has undertaken a thorough analysis of the market, both the mixed use and boarding house use to determine the market the 'bona‑fide seller' is operating within, s 6A(1) VL Act; and
(11) Mr Hill's evidence is uncontroverted.
A) Assessment by valuers of risks informing highest and best use
b) Boarding house market more valuable than mixed use market
C. GFA rate - adjustments of comparable sales for mixed use
the value benefit of sales having DA approval;
demolition costs;
market movements;
location;
size;
frontage;
access;
views;
structural engineering;
contamination;
shadowing;
contingency; and
stigma.
D. GFA rates - adjustments of comparable sales for boarding house use
(a) boarding house is a permissible use;
(b) above ground parking can be compliant with the controls;
(c) ground and above ground parking has been approved on other developments within proximity to Church Avenue; and
(d) there are a large number of developments approved for student accommodation and boarding house use without car parking including two doors away from John Street.
(1) The appeal brought pursuant to s 37(1) of the Valuation of Land Act 1916 (NSW) is dismissed.
(2) The land value of 23-25 Church Avenue Mascot is confirmed as $14,070,000.
(3) Costs reserved.
(1) The appeal brought pursuant to s 37(1) of the Valuation of Land Act 1916 (NSW) is dismissed.
(2) The land value of 16-18 John Street Mascot is confirmed as $4,390,000.
(3) Costs reserved.
[2006] NSWLEC 400
(2006) 148 LGERA 38
(1999) 199 CLR 413
(2018) 228 LGERA 407
(1955) 91 CLR 610
(1906) 5 CLR 418