City Hill Pty Limited v ACT Planning and Land Authority and ACT Civil and Administrative Tribunal [2015] ACTSC 40

City Hill Pty Limited v ACT Planning and Land Authority and ACT Civil and Administrative Tribunal [2015] ACTSC 40 - ACTSC 2015 case summary — Zoe

[106]

277 Working out change of use charge

(1) The planning and land authority works out the change of use charge for a variation of a lease as follows:

CUC = (V1 - V2)x75%

(2) In this section:

CUC means the change of use charge payable for the variation of the lease.

**V1 - **

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

(i) the lease were varied as proposed; and

(ii) the lease were genuinely offered for sale immediately after the variation on the reasonable terms and conditions that a genuine seller would require; and

(iii) the rent payable throughout the term of the lease or, for a variation that involves the surrender of a lease and issue of a new lease, the new lease, were a nominal rent; or

(b) for a variation that is a consolidation or subdivision, means the capital sum that the new lease or leases to be granted under the consolidation or subdivision might be expected to realise if -

(i) the consolidation or subdivision were to take place as proposed; and

(ii) the new lease or leases were genuinely offered for sale immediately after the variation on the reasonable terms and conditions that a genuine seller would require; and

(iii) the rent payable throughout the term of the new lease or leases were a nominal rent.

**V2 - **

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

(i) the lease were not varied during the remainder of its term; and

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

(iii) the rent payable throughout the term of the lease, or lease to be surrendered, were a nominal rent; or

(b) for a variation that is a consolidation or subdivision, means the capital sum that the lease or leases to be surrendered under the consolidation or subdivision might be expected to realise if -

(i) no consolidation or subdivision were to take place during the remainder of the term of the surrendered lease or leases; and

(ii) the lease or leases were genuinely offered for sale immediately before the consolidation or subdivision on the reasonable terms and conditions that a genuine seller would require; and

(iii) the rent payable throughout the term of the lease or leases to be surrendered were a nominal rent.

(3) If the capital value assessed as V1 is equal to or less than the capital value assessed as V2, no change of use charge is payable.

[137]

(a) The function of the Court in such an appeal 'is limited to the identification of an erroneous answer in respect of a question of law: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481 at [150].

(b) The question of law to be raised on appeal should be carefully drafted and precisely identified as a pure question of law: Edgley v Federal Capital Press of Australia Pty Ltd [1999] ACTSC 95; (1999) 139 ACTR 1 at [3]; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232; (2003) 38 AAR 55 at [18].

(c) Where an appeal lies 'on a question of law', the subject matter of the appeal is the question or questions of law, as stated in the Notice of Appeal: Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 at [13]- [16]. The ambit of the appeal is confined to that question or those questions: Brown v Repatriation Commission [1985] FCA 194; (1985) 7 FCR 302 at 304. It is for this reason that it is important to frame the questions carefully. In an appropriate case, the court may itself be prepared to frame the question of law in order to found its jurisdiction: Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80; (2011) 55 AAR 300 at [16].

(d) The appeal does not authorise the court to engage in fact finding on the merits of decisions of the tribunal: B & L Linings at [38], [55], [75]-[77]; Avery v Registrar of Births, Deaths and Marriages [2010] NSWCA 72; (2010) 79 NSWLR 354 at [23].

(e) The power of the Court does not extend to making an evaluative judgement based on primary facts as found by the tribunal from which the appeal is taken or exercising a discretionary power vested in that tribunal, unless the finding or order was the only one open: B & L Linings at [139].

(f) The Court cannot, therefore, usurp the fact-finding function of the tribunal from which the appeal is taken: Osland v Secretary, Department of Justice at [19] [75]. Thus, the hearing of the appeal does not extend to a rehearing of the factual questions before the tribunal from which the appeal is taken on making findings of fact: B & L Linings at [55], [75]; North Broken Hill Ltd v Tumes [1999] NSWCA 309; (1999) 18 NSWCCR 412 at [25]; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [69]-[70].

(g) Even where an error of law is demonstrated, the Court cannot engage in fact finding on the merits of the case: B & L Linings at [78].

(h) A question of law does not include a question of mixed fact and law: Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 287, 301-302; Comcare v Etheridge at [16].

(i) An appeal on a question of law is narrower than an appeal 'involving a question of law': TNT Skypak International (Australia) Pty Ltd v Commissioner of Taxation [1988] FCA 119; (1988) 19 ATR 1067 at 1069-1070.

(j) The question of whether facts found fall within a statutory provision properly construed is generally a question of law: Hope v Council of the City of Bathurst [1980] HCA 16; (1980) 144 CLR 1 at 7. This principle is qualified when the statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words 'where different conclusions are reasonably possible': NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1955) 94 CLR 509 at 512. Then, as the relevant material reasonably admits of different conclusions, the particular conclusion reached is a question of fact: Vetter v Lake Macquarie City Council at [24]-[28].

(k) It is not a question of law to claim that the decision of the tribunal from which the appeal was taken was against the evidence or the weight of the evidence: Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 58 FLR 407 at 410. It is, however, an error of law if there is no evidence or material to support the finding of fact or if the true and only reasonable conclusion on the evidence contradicts the decision of the tribunal from which the appeal is taken: Federal Commissioner of Taxation v La Rosa [2002] FCA 1036; (2002) 50 ATR 450 at 459.

(l) Whether the decision of the tribunal from which the appeal has been taken has been made with an error of fact, or whether the finding of fact is perverse, illogical or unreasonable are not questions of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356.

(m) "The grounds required to be specified in the notice of appeal are not grounds of appeal; they are the grounds upon which the Appellant will argue that the answers for which it contends to the questions of law entitle it to the relief which it seeks. It is not possible ... to extend the subject matter of the appeal beyond the specified questions of law by itemising, under the heading 'Grounds', a series of alleged errors (some being errors of law, some being errors of fact and some being errors of mixed law and fact) in the reasons for decision of the Tribunal": HBF Health Funds Inc v Minister for Health and Ageing [2006] FCAFC 34; (2006) 149 FCR 291 at [6].

(n) The function of the Court is to determine whether the decision of the tribunal from which the appeal is taken was right or wrong in law on the evidence before it and according to the law as it stands at the time the appeal is heard: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [12]- [14]; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 106-109.

(o) If the Court finds that the tribunal from which the appeal has been taken has made an erroneous decision on a question of law, the power of the Court to make orders that 'it thinks appropriate is not a power which is at large. The orders must be appropriate to the decision reached: B & L Linings at [137].

(p) An immaterial error of law will not vitiate the decision of a tribunal from which the appeal is taken: BTR plc v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246 at 254.

(q) If, on the facts already found, and in circumstances where there is no question of finding other facts, there is only one outcome in law, this Court can pronounce that result: GPT Re Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647 at [101].

[277]

The learned judge formed a confident opinion that all six of these valuers were men of experience and integrity, and he drew no distinction amongst them in regard to soundness of judgment or otherwise. Since they differed so widely, not only in result but in approach and in choice of material, the task presented to a judge to whom they all seemed equally reliable was one which could not be satisfactorily performed in any other way than by making a critical selection of the most helpful facts from the mass of information provided by the evidence, and applying correct principles in the light of the selected material. Unfortunately it does not appear from the judgment which his Honour delivered that he dealt with the matter in this way. He did not make any choice amongst the proved sales of other lands for the purpose of finding a basis for any reasoning of his own. Indeed he expressed the view, although he does not seem to have acted upon it, that the true basis for computation is not that to be found in one comparable sale, but in the average of a number, the larger the number the more acceptable the result. 'Such a statistical average', he added, 'will tend to eliminate the effect of the individual peculiarities (if any) of those in the transactions'. We do not find it possible to give countenance to this view. Perhaps it would be safer to work from an average of several prices than from one price if the sales were substantially contemporaneous sales of parcels of land which were identical in all material respects, but it must be rarely, if ever, that a process of averaging sale prices can be anything but fallacious ... But what is worse is that it would it [a figure arrived at by averaging] would be a figure not arrived at by the application by the court of the established principles of valuation ... It is no answer to say ... that the question was essentially a jury question and was so treated by his Honour. It was indeed a jury question, in the sense that it was to be decided, not by a strict adherence to precise arithmetical calculations, but by a commonsense endeavour, after consideration of all the material before the court, to fix a sum satisfactory to the mind of the court as representing the value contained in the land on 1st January 1946. But to say that the question was a jury question is not to say that it admitted of solution by accepting the opinions of all the experts as equally reliable and going through a process capable of being described as giving group consequence to the totality. The problem was not to eliminate the idiosyncracies of the individual opinions; it was to form an estimate which really satisfied his Honour's mind as being the value of the property to the plaintiff on the material date. [Emphasis added.]

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City Hill Pty Limited v ACT Planning and Land Authority and ACT Civil and Administrative Tribunal [2015] ACTSC 40 (3 March 2015)

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Legislation Cited (24)

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