Icon Oceania Kemps Pty Ltd v Valuer General of New South Wales

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Judgment

1. COMMISSIONER: The applicant appeals the Valuer General’s Determination dated 13 May 2024 pursuant to s 37(1) of the Valuation of Land Act 1916 (Valuation Act) in respect of the valuation of the land value of the property legally described as Lot 9 in Deposited Plan 253503, known as 253-267 Aldington Road, Kemps Creek, NSW 2178 (Land).

2. The proceedings fall within Class 3 of the Court’s jurisdiction pursuant to s 19(b) of the Land and Environment Court Act 1979 (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings are s 34(3)(a) of the LEC Act and s 40(1)(b) of the Valuation Act.

4. The Applicant appeals the determination of the Valuer General made on 13 May 2024 in respect of the objection made by the Applicant to the valuation of the land value of the land as of 1 July 2023.

Planning Background and Site Features

2. Relevant features of the land are as follows:

3. The Land is a rectangular shaped englobo industrial land parcel of undulating contour with a single frontage to Aldington Road, a quiet street location. The land has a frontage of approximately 162m with a total site area of 10.15ha (or 101,500m2). The land is located on a quiet street location in the emerging industrial precinct of Kemps Creek within the Penrith Local Government Area.

4. The land is traversed by an unnamed tributary watercourse which connects with Kemps Creek to the west beyond the boundary of the property. Three dams are also located on the land which are located in the path of the watercourse.

5. A large section of the land is earmarked for trunk drainage infrastructure in accordance with the Mamre Road Precinct DCP. This infrastructure follows the general alignment of the existing watercourse on the Land.

6. The Land is affected by a Transmission Line Easement which traverses the land in a consistent with the Mamre Road Precinct DCP Infrastructure Map. This easement appears to be currently unused.

7. The site is improved with a single storey dwelling of brick and tile built circa 1970 of modest external presentation.

Valuation objections and appeal

8. The valuation objection and history of the appeal includes:

9. On 3 January 2024, the Chief Commissioner of State Revenue issued a Land Tax Assessment Notice to the Applicant. The Respondent's valuation notices pursuant to s 29 of the Valuation Act were contained within those assessments in relation to the 2022, 2023 and 2024 valuation years (Determination).

10. On 4 March 2024, the Applicants lodged an objection to the Determination pursuant to s 29(3A) of the Valuation Act. Whilst the objection was lodged after the 60 days prescribed by s 35(1) of the Valuation Act, the Respondent granted permission for the objection to be lodged after the 60 day period pursuant to s 35A of the Valuation Act. The valuations used as the basis of the land tax assessments had not been the subject of a prior objection, and as such s 35AA of the Valuation Act did not apply.

11. On 13 May 2024, the Valuer-General disallowed the Applicants' objections in relation to the 2023 valuing year pursuant to s 35B and issued a Notice of Determination to the Applicants as required by s 35C of the Valuation Act.

12. On 11 July 2024, the Applicant lodged an appeal pursuant to s 37 of the Valuation Act in respect of the 2022 and 2023 valuing years in this Court, within the 60-day period imposed by s 38(1) of the Valuation Act. On 9 August 2024, the Applicant lodged an Amended Class 3 Application, confirming that the appeal related solely to the 2023 valuing year.

13. The Land Value contended by the Applicant in the appeal for valuing year 1 July 2023 was $26,500,000 in its Amended Class 3 Application and Contentions on Valuation Objection (COVO), and the Land Value contended by the Respondent in the appeal was $44,100,000. The issued land value was $44,100,000.

Legislation - Valuation of Land Act 1916

9. Section 6A of the Valuation Act provides as follows:

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.

10. Further, Pt 4, ss 37-40 of the Valuation Act states:

Part 4 Appeals to Land and Environment Court

Division 1 Appeals

37 Right of appeal

(1) Any person entitled under Part 3 to object to a valuation may appeal to the Land and Environment Court if the person is dissatisfied with the Valuer-General’s determination of any such objection to the valuation concerned (whether or not the person was the objector).

(2) An appeal may not be made on the ground that the objection is taken to have been disallowed, as referred to in section 35C (4), unless written notice of the objector’s intention to appeal on that ground has been given to the Valuer-General at least 14 days before the appeal is made.

(3) No person or body has jurisdiction or power to conduct a review or hear an appeal in respect of the determination of an objection except as provided by this Part.

38 Time for appeal

(1) An appeal must be made not later than 60 days after the date of issue of the notice of the Valuer-General’s determination of the objection.

(2) The Land and Environment Court may allow a person to appeal after the 60-day period.

39 Grounds of appeal

The appellant’s and respondent’s cases on an appeal are not limited to the grounds of the objection.

40 Powers of Land and Environment Court on appeal

(1) On an appeal, the Land and Environment Court may do any one or more of the following—

(a) confirm or revoke the decision to which the appeal relates,

(b) make a decision in place of the decision to which the appeal relates,

(c) remit the matter to the Valuer-General for determination in accordance with the Court’s finding or decision.

(2) On an appeal, the appellant has the onus of proving the appellant’s case.

11. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 11 November 2024. I presided over the conciliation conference. The conciliation conference was adjourned to 9 December 2024 and subsequently adjourned to 18 March 2025 to allow the parties time to continue investigation and discussion.

12. Prior to the adjourned conciliation conference proceeding on 18 March 2025, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved determining the value of the land pursuant to s 6A of the Valuation Act and making a decision in place of the decision to which the appeals relate in relation to the 2023 valuing year pursuant to s 40(1) of the Valuation Act.

13. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 40(1) of the Valuation Act to “make a decision in place of the decision to which the appeal relates” in relation to the land value of the land as of 1 July 2023.

14. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the proceedings fall within Class 3 of the Court’s jurisdiction pursuant to s 19(b) of the LEC Act and explained how the jurisdictional prerequisites have been met:

15. The Applicant is the owner of the freehold estate in the Land (s 29(1)(a) of the Valuation Act).

16. On 3 January 2024, the Chief Commissioner of State Revenue issued a Land Tax Assessment Notice to the Applicant. The Respondent’s valuation notices pursuant to s 29 of the Valuation Act were contained within that assessment in relation to the 2023 valuation year.

17. On 4 March 2024, the Applicant lodged an objection to the Determination pursuant to s 29(3A) of the Valuation Act. Whilst the objection was lodged after the 60 days prescribed by s 35(1) of the Valuation Act, the Respondent granted permission for the objection to be lodged after the 60 day period pursuant to s 35A of the Valuation Act.. The 2023 valuation used as part of the basis of the land tax assessment had not been the subject of a prior objection, and as such s 35AA of the Valuation Act did not apply.

18. On 13 May 2024, the Valuer-General disallowed the Applicant’s objection in relation to the 2023 valuing year pursuant to s 35B of the Valuation Act and issued a Notice of Determination to the Applicant as required by s 35C of the Valuation Act.

19. On 11 November 2024 and 9 December 2024, a conciliation conference was held under s 34(1) of the LEC Act.

20. The parties reached an agreement during the conciliation conference process that the Land Value of the Land is $31,500,000 for the 1 July 2023 valuing year.

21. The Court has the power to make a determination in place of the decision to which the Appeal relates pursuant to s 40(1)(b) of the VL Act.

22. For the reasons set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3)(a) and (b) of the LEC Act for the “disposal of proceedings in accordance with the parties’ decision”.

23. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notation:

17. The Court notes:

18. Each party is to bear its own costs of these proceedings.

Orders:

18. The Court orders:

19. The appeal is upheld.

20. Pursuant to s 40(1)(b) of the Valuation of Land Act 1916, the Land Value of Lot 9 in Deposited Plan 253503, known as 253-267 Aldington Road, Kemps Creek NSW 2178 is determined to be $31,500,000 for the 1 July 2023 valuation year.

Michael Davidson

Acting Commissioner of the Court

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