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[2019] ACAT 100
ACT Civil and Administrative Tribunal
2020-04-02
Original judgment source is linked above.
The objection to the assessment (reviewable decision)
Except for the UST there is no evidence of a potential primary contamination source of the subject land. More importantly, there is no evidence of actual contamination on the subject land.
...the general risk of contamination in Braddon has been absorbed into the price structure for the area and that a hypothetical informed purchaser would know this.
Mr Robertson's evidence was that he made no allowance in his valuation for contamination because contamination has not been proved to exist. He had assumed that the risk was the same throughout Braddon and any sale that has occurred will have assumed that risk. The Original Tribunal accepted Mr Robertson's evidence when it said at paragraph 63:
...The Tribunal accepts the proposition that the general risk of contamination in Braddon has been absorbed into the price structure for the area and that a hypothetical informed purchaser would know this.
The proceedings before the Appeal Tribunal on remittal
First, ascertain the class of properties to which the subject property belongs. This will be that set of recently sold properties which the valuer believes are close substitutes for the subject property.
Secondly, interview recent buyers of that class of property to ascertain their price fixing regime. Others may well have done this satisfactorily - for example, recent surveys of locational choices made by manufacturers...
Thirdly, abstract that information into a set of general principles which may be applied to the subject property and those selected in step one.
Fourthly, proceed with the work by analogy using as criteria of comparison the outcome of the third step. Part of this process may entail discarding some of the sales identified in the first step.
A strategic weakness in most valuations is the neglect to derive the set of general principles by ascensus from individual responses. The valuer should never assume knowledge of the crucial elements whereby comparisons are to be effected without reference to those articulated by recent buyers. To do so is to run the risk of using criteria of comparison that are irrelevant.[39]
The valuer must be constantly on the lookout for sales data. The sources of information will vary from State to State. The Land Titles office in some States... Such information usually provides only basic data such as the parties to the transaction, date of transfer, title details, postal address of the property and consideration.
While this is of the greatest importance to the valuer, it needs to be augmented from other sources. At the minimum, the sold properties should be inspected from the outside. ...
If the selling agent is known, perhaps listing information can be obtained from that source and further inquiry made as to whether the transaction had any peculiar features, and so forth. ...
Auction sales are also a valuable source of information ...
Media reports are another source of information ...
Information scarcity means that valuers must develop their own contacts with reliable market participants and fellow professionals. ...
It is important (no matter the area) to speak to people who make pricing decisions and those who make decisions affecting market participants. Among the former are buyers and sellers, lenders and brokers. Among the latter are local politicians, town planners and employers.[40]
When a set of observations has been assembled for a class of property, it should be submitted to a preliminary screening to assess its possible accuracy to search for relationships and to identify that characteristic of productivity most closely related to price.[41]
45. The subject land is situated at the southern end of Lonsdale Street close to Cooyong Street and Civic and is well placed for commercial including retail use. Braddon is rapidly developing into an area of medium density mixed residential and commercial use. The parties agree that the H&B use of the subject land is retail commercial on the ground floor, offices on the first floor with residential on the floors above. They did not agree on the details of a development on the subject land. They agree that the area of the subject land is 1254 square metres and that is in the CZ3 zone which permits a plot ratio of 3:1 provided that residential use is not less than 1254 square metres which results in a gross floor area (GFA) of 3762 M2. The land has a frontage of 30.8 metres to Lonsdale Street and a depth of 40.6 metres. The building height is restricted to 22 metres. It is next to an operating service station.
Contamination adjustment and demolition adjustment for subject block
[1] Theses reason were reissued on April 2, 2020 to correct typographical errors.
[3] Dr Gunton's qualifications as a geologist with 12 years' experience, including five years as a contaminated land consultant in the ACT, were also set out in his report
[4] Page 14 Dr Gunton report Exhibit A13
[5] Report from Phil Green, dated 27 September 2012, page 4 Exhibit A9
[6] Mr Green attached advice from the ACT Planning and Land Authority dated 5 May 2009 advising that the Environment Protection Agency's records indicated that fuel storage tanks located on the property have been abandoned and filled with sand and there are no records of an environmental assessment being undertaken.
[9] In this report Mr Robertson included 6 Watson Street, Turner and did not include 5-7 Torrens Street, Braddon (Blocks 8 and 11, Section 29 Braddon) which he had included in his March 2012 report.
[10] Giusida Pty Limited v Commissioner for ACT Revenue [2013] ACAT 59
[11] Giusida Pty Limited v Commissioner for ACT Revenue [2014] ACAT 50
[12] Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
[13] Section 92 of the ACT Civil and Administrative Tribunal Act 2008
[14] Such as the failure to afford procedural fairness to Mr Green, or the lack of evidence about contamination risk for the comparable properties
[19] 27 Lonsdale St (our SALE 1), 43-45 Torrens St Braddon (our SALES 3 and 4), 28 Mort St (our SALE 2), 32 Mort St (Sale Oct 13), 16 Lonsdale St (sale Dec 13) & 40 Mort St (Sale Aug 14). He refers to 16, 32 and 28 Lonsdale in his Reconciliation. In the first Robertson report Sale 3 was 5-7 Torrens St Braddon which he does not refer to in his later report and we note was not picked up by the later valuers)
[21] Which was sent under cover of a letter from Mr Shadbolt, the applicant's latest valuer witness
[28] The Appeal Tribunal would have benefitted from hearing from Mr Green the reason why he ascribed such a value to the block on 14 March 2012, given that both four months earlier and six months later he wrote to the Commissioner providing his expert opinion that a $5M value was incorrect. In the absence of Mr Green being called before the Appeal Tribunal to give evidence and provide an explanation for his emailed opinion (notwithstanding that one appeal ground was a lack of procedural fairness in relation to Mr Green) it is difficult to have much confidence in Mr Green's various opinions and reasoning in this matter.
[32] Chakravarty v Commissioner for ACT Revenue [2013] ACAT 11, Mansour v Dangar [2017] ACAT 49
[33] Ordinarily an Appeal Tribunal would be reluctant to interfere with findings of fact by an Original Tribunal, particularly where based on the preference for one witness over another, however in this case this approach is necessary because of the deficiencies identified by the Court.
[34] Planet Red Pty Ltd v Commissioner for ACT Revenue [2017] ACAT 18, at [24]
[35] Counsel for the applicant at several times during the hearing cautioned the Appeal Tribunal against 'conducting its own valuation'. We do not accept that submission has force given the particular function required of the Original Tribunal, and now to be performed by the Appeal Tribunal.
[36] Planet Red Pty Ltd v Commissioner for ACT Revenue [2017] ACAT 18 paragraphs 23-26
[37] Spencer and the Commonwealth (1907) 5 CLR 418
[38] Professor RTM Whipple, Property Valuation and Analysis, 2nd ed
[39] Professor RTM Whipple, Property Valuation and Analysis, 2nd ed Chapter 9, Page 252
[40] Professor RTM Whipple Property Valuation and Analysis 2nd ed pages 254-255 (Whipple)
[43] The parties agreed that the approach of deriving a value referable to site area rather than GFA was appropriate in the Braddon precinct.
[44] Applicant's submissions filed 21 December 2018 at [37]
[45] as per the Original Tribunal decision, although based on additional evidence.
[46] Carlo King's report dated 3 October 2018 [13] The sale properties generally include some form of contamination in the sale price. Dr Gunton said that Phase 1 and Phase 2 testing for contamination was standard for Braddon where there was a change to residential use, but he was not asked if that was standard in 2009, 20101 or 2011. Transcript 22 February 2013 p. 92, l. 3-4
[48] Report of Carlo King Exhibit R12, page 9, although we note this was not expressed in his report
[49] Although he does not say that he interviewed the purchaser himself.
[50] Hyam, Law Affecting Valuation of Land in Australia, referring to the English case of English Exporters (London) Ltd v Eldonwell Ltd [1973] 1 Ch 415 where Megarry J said at 422 I know of no special rule giving expert valuation witnesses the right to give hearsay evidence of facts.
[51] In any event, the comment by the purchaser here referred to is not a fact, but rather a rationalisation of the makeup of the purchase price.
[52] Our attention was drawn to previous decisions of the Tribunal in which a 5% adjoining owner allowance was made in relation to this property. While consistency in decision-making is important, in the end a tribunal must make what it considers to be the correct decision on the most current information before it.
[53] This is because the change of use charge would be calculated on the basis of the difference between the unimproved land value before the change and after the change. As this case demonstrates, there was a paucity of sales at the time and owners seeking a change of use would have had no certainty as to their before and after values.
[55] For example, in this case we were advised that the development approval for one site in the precinct ultimately permitted a GFA sizeably in excess of that permitted by the lease. This was attributed to human error in the approval process.
[56] An ability to test one's own property is not a given, the Counsel for the applicant asked the Appeal Tribunal to accept that in this case, the applicants had been unable to test the block for contamination for years due to the presence of a tenant. This was ultimately the evidence given by Mr Cataldo.
[57] We have no evidence as to whether purchasers generally in 2008, or this purchaser in particular, were aware of the significance of contamination and costs of decontamination in the Braddon precinct.
[58] Notwithstanding that this was hearsay from an unknown source, it was accepted by all of the valuers and both Counsel urged the Appeal Tribunal to accept this as a fact.
[59] These uncertainties were touched upon by the Original Tribunal at paragraph 57 of its decision, nonetheless the Original Tribunal ultimately relied upon this Sale in the valuation process.
[60] Development Approval dated 8 December 2010, Exhibit A4, page 7
[61] Report Carlo King 3 October 2018 Paragraphs 27, 39
[62] Giusida Pty Limited v Commissioner for ACT Revenue [2013] ACAT 59 at [57]
[64] Zdravko Tokic was the Director and equal one half shareholder in Mazdem Pty Ltd and he was one of the three Directors and shareholders of PKT Group Ltd.
[65] For example, on a purely mathematical basis, if only the two incoming owners pay the purchase price and receive only 2/3 of the interest in the block, a true purchase price for the full block might be extrapolated as $9.675M.
[66] Professor RTM Whipple Preperty Valuation and Analysis 2nd ed. Page 254
[67] This is because it seems much of the process set out by Mr Gunton was required by legislation or documents postdating 2009, some dated as late as 2012.
[68] Applicant's Submissions filed 21 December 2018 at [37]
GIUSIDA PTY LTD
COMMISSIONER FOR ACT REVENUE
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68, 92
ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) s21
Taxation Administration Act ss 101, 104
Cases cited: Chakravarty v Commissioner for ACT Revenue [2013] ACAT 11
English Exporters (London) Ltd v Eldonwell Ltd [1973] 1 Ch 415
Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Giusida Pty Limited v Commissioner for ACT Revenue [2013] ACAT 59
Giusida Pty Limited v Commissioner for ACT Revenue [2014] ACAT 50
Mansour v Dangar [2017] ACAT 49
Planet Red Pty Ltd v Commissioner for ACT Revenue [2017] ACAT 18
Re Gaider (78/5004)
Spencer and the Commonwealth (1907) 5 CLR 418
List of
Texts/Papers cited: Professor RTM Whipple, Property Valuation and Analysis, 2nd ed
(1907) 5 CLR 418