City Hill Pty Ltd v ACT Planning and Land Authority and Anor [2013] ACTSC 108

2. The decision of the Authority was to determine a change of use charge under ss 276 and 277 of the Planning and Development Act in relation to a development application in respect of Block 19 Section 29 (16 Lonsdale St) Braddon. The Authority approved the development application, which involved a variation to the purpose clause of the Crown lease for the block to permit residential development above the ground floor and first floor levels. The property prior to this had been used as a tyre repair and mechanical workshop, but had been vacated pending redevelopment. It seemed to be accepted that following redevelopment, there would be a ground floor commercial shopfront, with the first and second floors used for commercial offices, and the third and fourth floors for residential units, probably with basement car parking.

3. Where there is a change of use, s 276 of the Planning and Development Act requires the Authority to calculate a charge payable to the Territory, being 75% of the difference between the capital value of the lease before the change and the value after the change. The Authority calculated what the Tribunal called the before value at $4,265,000.00 and the after value at $5,665,000.00, the difference being $1,400,000.00, so that the charge determined was 75% of that difference, that is $1,050,000.00.

4. The decision of the Tribunal was to reduce the before value to $3,900,000.00 and the after value to $4,730,000.00, giving a difference of $830,000.00, and the charge, being 75% of that figure, to $622,500.00.

5. The position of the applicant before the Tribunal was that both the before value and the after value should have been assessed at $4,050,000.00, so that, there being no difference between those figures, no charge should have been payable.

6. Expert expert evidence was given on behalf of the applicant by Mr Flannery, a valuer with extensive experience in commercial property valuation in Canberra employed with CB Richard Ellis, as well as by a professional engineer, an architectural draftsman, a quantity surveyor and a town planner. Evidence was given for the Authority by Mr McInerney, a valuer with the Australian Valuation Office with experience over many years in valuing commercial and industrial property in NSW and the ACT; and Mr Svanberg, a valuer with the Australian Valuation Office in Melbourne.

7. The Tribunal analysed the evidence and prepared lengthy reasons (thirty pages). It was noted in the reasons that Mr McInerney had arrived at his figures by reference to comparable sales, whereas Mr Flannery had taken net income figures and capitalised these. The Tribunal noted in its reasons at [40] that there could be no "correct" decision as to the figures, only a preferable decision, and that the valuation of land involved a matter of judgment, with no scientific exactitude. They said that it seemed to be generally agreed that the comparable sales method was preferable to other methods if there was evidence of comparable sales: [41]. In the absence of evidence of comparable sales, other methods of valuation could be utilised. They said that there was evidence of a number of sales, some of which were directly comparable and others of which were of assistance though of lesser comparability. Consequently, the Tribunal decided to rely mainly on the comparable sales approach, but to have regard to the capitalisation of income approach as a check.

8. The Tribunal took account of other matters which might affect the after value, including the cost of removal of asbestos, the cost of demolition, and the cost of decontamination of the site.

9. They referred to evidence given by the expert valuers about hypothetical feasibility studies. They noted that such studies were generally of assistance only where there was no data available as to comparable sales.

10. A draft notice of appeal has been prepared on behalf of the applicant. The relief sought in the notice of appeal is that the appeal be allowed and that the order of ACAT be set aside. I observe that the effect of such an order would be to reinstate the decision of the Authority, leaving the applicant considerably worse off. This is not an aspect of the matter which was addressed by counsel for the applicant on the hearing of the application. Counsel did mention the possibility of amendment of the draft notice of appeal if leave were granted, and I assume that the applicant might have wished to amend the relief sought, perhaps to have the matter remitted to the Tribunal to be heard and determined again, though this is a matter of speculation.

11. As I said earlier, an appeal from the Tribunal to this Court in a matter under the Planning and Development Act is available only on a question of law.

12. Burns J set out in John Flynn Community Group Inc and Flynn Primary School Parents and Citizens Association Inc v ACT Heritage Council (2012) 6 ACTLR 266 a number of principles applicable to an appeal on a question of law. The principles set out by Burns J are as follows, at [16]:

a) The court's jurisdiction is confined to a "pure question of law": Birdseye v ASIC [2003] FCAFC 232; (2003) 38 AAR 55 at [18]; Eastman v Commissioner for Housing [2008] ACTSC 1 at [18].

b) 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) 82 ALR 175 at 178.

c) 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; Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522 at [16]; Eastman at [20].

d) The function of the court, on 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 at [150]. That is to say, the Court's function is to determine whether the decision of the Tribunal was right or wrong in law on the evidence before it, and according to the law as it stood at the time the decision was given: Cole and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [12].

e) The error of law, if established, must be of a kind that would entitle the intended appellant to the relief it seeks: Eastman at [21]; HBF Health Funds Inc v Minister for Health and Aging [2006] FCAFC 34; (2006) 149 FCR 291 at [5], [6] and [33].

f) The appeal does not extend to a factual question; or making findings of fact; or making an evaluative judgment based on facts found by the Tribunal; or exercising a discretionary power vested in the Tribunal unless the finding or order was the only one that was open; B & L Linings at [13], [14], [38]-[55], [75]-[78] and [139]; North Broken Hill Ltd v Tumes [1999] NSWCA 309 at [25]; ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 at [19].

g) Where an appeal is sought on "a question of law", the subject matter of the appeal is the question or questions as stated in the notice of appeal: Comcare v Etheridge at [13]-[16]; Eastman at [19]. 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.

h) The construction of legislation is a question of law: HR Products Pty Ltd v Collector of Customs [1990] FCA 152; (1990) 20 ALD 340.

i) The failure to take account of relevant considerations or taking account of irrelevant considerations amounts to error of law.

j) A finding on a question of fact can be reviewed if it is vitiated by error of law: Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54.

k) A failure to take account of particular pieces of evidence is not an error of law: Walsh v Department of Employment, Education, Training and Youth Affairs (1998) 81 ALD 690.

l) The question of whether facts fully found fall within the provisions within a statutory enactment properly constructed is generally a question of law: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389.

13. Penfold J considered in CIC Australia Limited v ACT Planning and Land Authority [2013] ACTSC 96 whether the powers available to the Court on an appeal from a Tribunal were expanded by the provisions of r 5051 of the Court Procedures Rules 2006. Her Honour concluded that the powers conferred by the rule must be read subject to the limitation on appeals from the Tribunal imposed by the ACT Civil and Administrative Tribunal Act, a view with which I respectfully agree (and by which I would regard myself as bound even if I did not).

14. It does not seem to me that the draft notice of appeal identifies a pure question of law which would, if answered as the applicant submits it should be answered, be determinative of the appeal. The proposed questions of law are not of a kind that would entitle the applicant to the relief it seeks. The questions are in reality questions of mixed fact and law.

15. Counsel for the applicant has submitted that the decision of the High Court in Maurici v Chief Commissioner of State Revenue [2003] HCA 8; (2002) 212 CLR 111 should be seen as authority for the proposition that an appeal on a question of law in a valuation case extends to questions of mixed fact and law. This does not seem to me to follow from the reasons. In Maurici, an appeal was available from a commissioner of the NSW Land and Environment Court to a judge on a question of law. That appeal was successful. The judge's decision was overturned by the NSW Court of Appeal but reinstated by the High Court. The joint judgment of the High Court at [8] identified the question which had gone to the single judge as "a question of at least mixed law and fact". Perhaps their Honours were saying that the single judge should not have embarked upon the appeal in those circumstances. But by the time it got to the High Court that was water well under the bridge. It is apparent from the submissions of counsel before the High Court that no issue was raised as to whether the single judge exceeded his jurisdiction in embarking upon the appeal from the Commissioner. Perhaps it was by then too late for that issue to be raised. At all events, the High Court mentioned the question in passing but did not make any pronouncement of law about it. The appeal was determined without reference to it. I do not take Maurici as authority for the proposition that in valuation cases, an appeal on a question of law extends to an appeal on a question of mixed law and fact. Maurici was not mentioned in any of the judgments in Birdseye or Etheridge, decisions by which I am bound.

16. The present applicant has not identified a question of law which, if determined as the applicant says it should have been determined, would necessarily have led to a particular outcome before the Tribunal. It seems to me that on a correct analysis, what the applicant seeks to do here is to revisit the factual findings made by the Tribunal, and the way in which the Tribunal exercised its discretion in deciding the issues before it. That is not a course available to the applicant under the Planning and Development Act. It is the clear intention of the legislature that an appeal of that kind from the Tribunal to this Court should not be available.

17. The proposed appeal is accordingly bound to fail, and in those circumstances leave to appeal must be refused with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.

Solicitor for the first respondent: ACT Government Solicitor