Karimbla Properties (No. 61) Pty Limited v Valuer General of New South Wales

File Number(s): 2024/322305

Publication restriction: No

Judgment

1. COMMISSIONER: The applicant appeals the Valuer General’s Determination dated 5 July 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 Lots 2, 3 & 4 in DP 9614, Lot 22 in DP 21386, Lots 61 & 62 in DP 819136 and Lot 1 in DP 1219291, known as 263-281 Pennant Hills Road, Carlingford NSW 2118 (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 5 July 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 irregular in shape and contains a south-eastern boundary frontage to Pennant Hills Road of approximately 280 metres and a northern street boundary frontage to Shirley Street of 235 metres. The site area of the subject land, as calculated from the relevant Deposited Plans, is 27,973.8 square metres. This equates to 2.797 hectares. It is located on the northwestern side of Pennant Hills Road, between Post Office Street and Shirley Street, within the suburb of Carlingford and the Local Government Area of the City of Parramatta.

4. The Land contains an underground Easement for Transmission Line for Railway Purposes, 4-5 metres wide, and a Right of Way 4 metres wide, both as described on Deposited Plan 1242020.

5. Along the Pennant Hills Road frontage, the Land falls from the north-eastern to southwestern corner by approximately 21.1 metres across its length. Along Shirley Street, the Land falls from the northern to western corner by approximately 14 metres.

6. At both the date the valuation was made (DVM) of 2 October 2023 and the valuation date of 1 July 2023, the Land was subject to the Parramatta Local Environmental Plan 2023, as amended.

7. At the DVM the subject land contained various zoning controls comprising:

(a) R4 – High Density Residential, (b) RE1 – Public Recreation, and (c) SP2 – Infrastructure.

Valuation objections and appeal

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

9. On 10 January 2024, the Chief Commissioner of State Revenue issued a Land Tax Assessment Notice to the Applicant 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 was $66,500,000. At the time of the valuation the Applicant was the registered proprietor and owner of the Land.

10. On 11 March 2024 the Applicant 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.

11. On 5 July 2024, pursuant to s 35B of the Valuation Act, the Respondent determined that the land value should not be changed, disallowed the Applicant’s objection, and issued a Notice of Determination to the Applicant as required by s 35C of the Valuation Act.

12. On 30 August 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.

13. On 4 October 2024, the Applicant filed its Contentions on Valuation Objection (COVO), contending for a land value of $50,470,000.

14. On 12 November 2024, the Respondent filed her COVO, contending that the issued land value of $66,500,000 was supported.

15. On 13 December 2024, the Applicant filed its COVO in Reply, contending for a land value of $48,301,000 or lower.

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 13 February 2025 and 14 March 2025. I presided over the conciliation conference.

12. At the conciliation conference, 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. At 1 July 2023, the Applicant was the owner of the Land for the purpose of s 29(1)(a) of the Valuation Act.

16. On 11 March 2024, the Applicant objected within the 60-day period prescribed by s 35 of the Valuation Act [1] . The Applicant lawfully objected to the issued land value contained in its Land Tax Assessment Notice dated 10 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.

17. On 5 July 2024, the Respondent lawfully issued a notice of determination under s 35B of the Valuation Act in respect of the Applicant’s objection and issued a Notice of Determination to the Applicant as required by s 35C of the Valuation Act.

18. On 30 August 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.

19. The Applicant is entitled to bring these proceedings pursuant to s 37(1) of the Valuation Act, as it was dissatisfied with the Valuer-General’s determination of its objection and the appeal was filed within the 60-day period prescribed by s 38 of the Valuation Act.

20. 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.

21. 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.

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

23. Following discussions between the experts, the parties arrived at an agreed figure that was acceptable to the parties, within the meaning of s 34(3) of the LEC Act.

24. 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.

25. 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”.

26. 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. The land value of Lots 2, 3 & 4 in DP 9614, Lot 22 in DP 21386, Lots 61 & 62 in DP 819136 and Lot 1 in DP 1219291, known as 263-281 Pennant Hills Road, Carlingford NSW 2118, as at 1 July 2023 is amended to $61,000,000.

21. I certify that this and the preceding 7 pages are a true copy of my reasons for judgment.

Michael Davidson

Acting Commissioner of the Court

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Endnote

(1) see, similarly, Kogarah Town Centre Pty Ltd v Valuer General (No 3) [2014] NSWLEC 1124 at [45], [53] and Hammock Investments Pty Ltd v Valuer General of New South Wales [2024] NSWLEC 1673 at [6]. Pursuant to s 36(2) of the Interpretation Act 1987, the last day to object was 11 March 2024, because the 60-day period prescribed by s 35 of the Valuation Act expired on Sunday, 10 March 2024.