ICPF Nominees Pty Ltd as the responsible entity and the Trustees for the 40 Mount Street Trust v Valuer General of New South Wales

Representation: Counsel:
W Zheng (Solicitor) (First and Second Applicant)
R White (Respondent)
Solicitors:
Mills Oakley (First and Second Applicant)
Crown Solicitor’s Office NSW (Respondent)

File Number(s): 2024/366290

Publication restriction: Nil

Judgment

1. COMMISSIONER: The First and Second Applicants (the Applicants) appeal the Valuer General’s Determination dated 13 August 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 102 in Deposited Plan 1076397, 40 Mount Street, North Sydney NSW 2060 (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 Applicants appeal the determination of the Valuer General made on 13 August 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 located on the northern corner of Mount Street, William Street and Wheeler Lane, within the suburb and Local Government Area of North Sydney.

4. The Land is a three street corner allotment. The subject land is slightly irregular in shape, though best described as rectangular. The natural topography of the land slopes down in an easterly direction.

5. The Land contains a southern boundary frontage of 77.43 metres to Mount Street, an eastern boundary frontage of 33.48 metres to William Street and a 29.63 metre western frontage to Wheeler Lane. The site area of the Land, identified in Deposited Plan 1076397, is 2,467 square metres.

6. The Land is situated within the commercial zoned area of the North Sydney CBD. Surrounding development comprises a mix of mid and high rise retail/commercial developments of varying age and construction style.

7. At both the date the valuation was made of 5 October 2023 and the valuation date of 1 July 2023, the Land was subject to the following planning controls:

8. North Sydney Local Environmental 2013 as amended;

9. North Sydney Development Control Plan 2013;

10. State Environmental Planning Policy (Housing) 2021.

Valuation objections and appeal

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

5. On 9 January 2024, the Chief Commissioner of State Revenue issued a Land Tax Assessment Notice to the Applicants conveying particulars of the Respondent’s valuation of the Land made in accordance with s 14A of the Valuation Act. The issued land value for the Land for the 1 July 2023 valuation year was $90,000,000.

6. On 9 March 2024 the Applicants lodged an objection, to the issued land value for the 2023 valuing year contained in the Land Tax Assessment Notice, with the Respondent pursuant to s 29(3A) of the Valuation Act.

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

8. On 3 October 2024, Applicants filed a Class 3 Application pursuant to s 37 of the Valuation Act appealing the Respondent’s disallowance of its objection, within the required 60-day period pursuant to s 38 of the Valuation Act.

9. The Land Value contended by the Applicants in the appeal for valuation year 1 July 2023 was $67,194,000.

10. The Land Value contended by the Respondent in the appeal was the issued Land Value of $95,000,000.

Legislation - Valuation of Land Act 1916

5. 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.

6. 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.

7. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 27 March 2025. I presided over the conciliation conference.

8. The conciliation conference was adjourned to 16 April 2025.

9. On 15 April 2025, the conciliation conference was further adjourned, at the request of the parties, to 5 May 2025.

10. During the adjourned conciliation conference of 5 May 2025, the parties advised they had 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.

11. 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.

12. 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:

13. The Applicants were the owners of the Land for the purpose of s 29(1)(a) of the Valuation Act.

14. The Applicants lawfully objected to the issued land value contained in its Land Tax Assessment Notice dated 9 January 2024 pursuant to s 29(3A) of the Valuation Act. The Respondents valuation notice pursuant to s 29 of the Valuation Act was contained within that assessment.

15. On 9 March 2024, the Applicant’s objection was lodged not later than 60 days after receiving the Land Tax Assessment Notice in accordance with s 35(2) of the Valuation Act. The valuation used as 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.

16. On 13 August 2024, the Respondent determined to disallow the Applicant’s objection under s 35B of the Valuation Act and issued a Notice of Determination to the Applicant as required by s 35C of the Valuation Act.

17. On 3 October 2024, the Applicant filed a Class 3 Application appealing the Respondent’s disallowance of its objection, within the required 60 day period pursuant to s 38 of the Valuation Act.

18. The Applicants are entitled to bring these proceedings pursuant to s 37(1) of the Valuation Act, as they were dissatisfied with the Valuer-General’s determination of its objection and the appeal was filed not later than 60 days after the issue of the Respondent’s Notice of Determination under s 38 of the Valuation Act.

19. The Court has jurisdiction to hear and determine appeals under s 37 of the Valuation Act pursuant to s 19(b) of the LEC Act, in the Court’s Class 3 jurisdiction.

20. The Court has the power to make a decision in place of the decision to which the appeal relates pursuant to s 40(1)(b) of the Valuation Act.

21. The parties attended a Conciliation Conference in good faith pursuant to s 34 of the LEC Act.

22. Following discussions between the experts, the parties subsequently agreed that the land value of the Land should be amended to $82,320,000, which represents the terms of a decision that would be acceptable to the parties within the meaning of s 34(3) of the LEC Act.

23. The Court has the power to dispose of the proceedings pursuant to an agreement reached between the parties pursuant to s 34(3) of the LEC Act.

24. 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)-(b) of the LEC Act for the disposal of proceedings in accordance with the parties’ decision.

25. 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

15. The Court notes:

16. Each party is to bear its own costs in relation to the proceedings.

Orders

16. The Court orders:

17. The appeal is upheld.

18. Pursuant to s 40(1)(b) of the Valuation of Land Act 1916, the land value of Lot 102 in DP 1076397, known 40 Mount Street, North Sydney, as at 1 July 2023 is determined to be $82,320,000.

Michael Davidson

Acting Commissioner of the Court

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