ACT Civil and Administrative Tribunal|2020-09-30|Before: Commissioner For

For the reasons expressed earlier the lease variation clause 2 (c) is to be taken into account and therefore a reduction to the unit rate is to be made for these conditions to the After Value.[157] The Commissioner says that Mr Pilat's discount of 10% most accurately reflects any burden imposed by the condition. We note Mr Heaton also adopts 10%. The adjusted sale price after the ACTVO has applied an amount for time is to be discounted by 10% to provide the assessed value that the rate per unit is to be calculated from for the After Value of the Property.

The Tribunal Orders:
1. The Notice of Assessment of the Commissioner dated 8 April 2019 and to the extent necessary the Refusal of the Commissioner (being the deemed refusal pursuant to section 277E and section 277 of the Planning Act) is set aside and substituted with a decision that:

(i) The Before Value of the Property is $6,656,500.

(ii) The Commissioner is to assume 800 residential apartments will be built on the Property in determining the After Value as at 28 September 2018.

(iii) The sale price of the property 2/200 Belconnen of $20,989,593 is to be used by the Commissioner in determining the After Value but adjusted by the Commissioner for movements in property values in the ACT property market from the date of sale of 2/200 Belconnen being June 2015 to the date of the Notice of Decision being 28 September 2018.

(iv) The After Value is then to be discounted by 10% to allow for Condition 2(c).

Subject to the above, the Commissioner is to issue a new Notice of Assessment pursuant to section 276D(i) of the Planning and Development Act 2007.

The orders have been set aside and substituted as of 25 March 2021. Please refer to annexure A for the reasons for these amendments:

On 30 September 2020 the Tribunal made orders based on its reasons for its orders[158] which set aside not only the deemed refusal of the Commissioner for ACT Revenue (Commissioner) (respondent) pursuant to Section 277E and Section 277 of the Planning and Development Act 2007, but also the Notice of Assessment of the respondent dated 8 April 2019, whereby the respondent had determined the Before and After Value of the applicant's property.
By letter dated 27 January 2021 from the respondent's solicitor, which was forwarded to the Tribunal with the consent of the applicant's solicitor, the respondent raised an issue as to the jurisdiction of the Tribunal to set aside the Notice of Assessment on the basis that the Tribunal only had power to set aside the decision under review, being the deemed refusal.
The respondent's solicitor asked the Tribunal to exercise its power under sections 63 (on the basis that there was a clerical or accidental slip or omission by the Tribunal) and/or 56(c)(iii) (on the basis that there were extraordinary circumstances which made it appropriate to amend or set aside the order of the Tribunal) of the ACT Civil and Administrative Tribunal Act 2008.
The form of the order made on 30 September 2020 was based on the reasons for decision and orders of this Tribunal in HTI Watson Pty Limited v Commissioner for ACT Revenue,[159] and upon the relief sought by the applicant in its Application for Review of a Decision, filed 23 October 2019.
Having considered the submissions of the respondent, which were made with the consent of the applicant, the Tribunal now has sufficient doubt about the extent of its jurisdiction and it has determined that it is appropriate to set aside the orders made 30 September 2020 and make alternative orders.
A draft order was prepared by the Tribunal and forwarded to the parties and both parties have now indicated their consent to the Tribunal making such an order in light of the Tribunal's reasons dated 30 September 2020.
In light of that consent, the Tribunal makes the following orders:
1. Pursuant to Section 56 of the ACT Civil and Administrative Act 2008 the Tribunal sets aside the orders made 30 September 2020 and in lieu makes the following orders:
2. The reconsideration decision deemed to have been made on 26 September 2019 is set aside.
3. The matter is remitted to the Commissioner for further determination of the lease variation charge with the following directions:

(i) The V2 Before Value of Block 17, Section 3, of the Property as at 28 September 2018 is $6,656,500.

(ii) For the purpose of determining the V1 After Value of the Property as at 28 September 2018, the Commissioner is to assume 800 residential apartments can be built on the Property.

(iii) The sale price of Block 2 Section 200 Belconnen in June 2015 of $20,989,593 is to be used by the Commissioner in determining the V1 After Value of the Property but adjusted by the Commissioner for movements in property values in the ACT property market from the date of sale of 2/200 Belconnen being June 2015 to 28 September 2018 being the date of the Notice of Decision dated 28 September 2018.

(iv) The After Value is then to be discounted by 10% to allow for Condition 2(c) of the Notice of Decision dated 28 September 2018.

[1] Exhibit A13 which was 32 pages plus lengthy annexures and Exhibit A14 which was 32 pages plus lengthy annexures. Exhibit A14 superseded Exhibit A13 but by the time the hearing started Exhibit A13 had already been read by the Tribunal members

[2] See submissions in chief filed 21 May 2020 paragraph 3

[3] Transcript of proceedings 30 April 2020 at page 465

[4] Giusida Pty Ltd v Commissioner for ACT Revenue (No 2) [2018] ACTSC 178 at [22]- [23]

[5] Tomago Aluminium Co Pty Limited v Valuer General [2010] NSWLEC 4 at [45], per Pepper J

[6] See observations of Hope JA in Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 435-8

[7] Jessica Investment Pty Limited v VG [2008] NSWLEC 1375 at [6], per Bly C

[8] Applicant's further submissions filed 14 July 2020 paragraphs 83-96 and respondent's further submissions filed 14 July 2020 paragraphs 40-47

[10] Paragraphs 4 to 10 applicant's outline of opening submissions and paragraph 6 and 7 of respondent's outline of submissions

[11] Exhibit A11 page 121 and following

[12] See Exhibit A 14 page immediately after page 33

[13] Applicant's submissions in chief filed 21 May 2020 paragraph 2 and respondent's outline of submissions paragraph 2

[14] Paragraphs 11 to 13 submissions in chief filed 21 May 2020

[15] Re Section 11a of the City Area Leases Act 1936 [1991] ACTSC 86, per Higgins J at [2]

[16] Exhibit R26 and Transcript of proceedings 29 April 2020, page 295, line 1

[28] 3 Property Group 5 Pty Ltd v Commissioner for ACT Revenue [2019] ACAT 67 at [61]- [71]

[32] Transcript of proceedings 13 February 2020 page 267 and following

[35] Transcript of proceedings 13 February 2020 page 268

[36] Transcript of proceedings 13 February 2020 page 273

[37] Transcript of proceedings 13 February 2020 pages 273-4

[38] Transcript of proceedings 13 February 2020 page 274

[39] Transcript of proceedings 13 February 2020 page 272, line 5

[40] Transcript of proceedings 13 February 2020 page 272, line 10

[41] Transcript of proceedings 13 February 2020 page 274, line 40

[42] Transcript of proceedings 13 February 2020 pages 274-275

[43] Transcript of proceedings 13 February 2020 page 275, lines 25-45

[44] Transcript of proceedings 13 February 2020 pages 276-277

[45] Transcript of proceedings 29 April 2020 page 316, line 20

[46] Transcript of proceedings 29 April 2020 pages 320- 320, line 45

[47] Transcript of proceedings 29 April 2020 page 327-page, line 5

[48] Transcript proceedings of 29 April 2020 page 329, line 5

[49] Transcript of proceedings 29 April 2020 page 329, lines 5-45

[51] Transcript of proceedings 29 April 2020 page 328, line 10

[52] Transcript of proceedings 29 April 2020 pages 335 -336

[53] Transcript of proceedings 29 April 2020 page 336, line 5

[54] Transcript of proceedings 29 April 2020 page 336

[55] Transcript of proceedings 29 April 2020 page 348, lines 15-30

[56]Transcript of proceedings 29 April 2020 page 348, lines 15-30

[57] Transcript of proceedings 29 April 2020 page 318, line 20

[58] Transcript of proceedings 29 April 2020 page 334, line 10

[59] Transcript of proceedings 29 April 2020 page 336

[60] Transcript of proceedings 29 April 2020 pages 337-338

[61] Transcript of proceedings 29 April 2020 page 334

[62] Transcript of proceedings 30 April 2020 page 405

[63] Transcript of proceedings 29 April 2020 pages 353-356

[64] Transcript of proceedings 29 April 2020 page 357, line 30

[65] Transcript of proceedings 29 April 2020 pages 358-359

[66] Transcript of proceedings 29 April 2020 page 358, line 30

[67] Transcript of proceedings 29 April 2020 page 361

[68] Transcript of proceedings 29 April 2020 pages 362-364

[69] Transcript of proceedings 29 April 2020 page 366

[71] Transcript of proceedings 29 April 2020 pages 373 -376, line 5

[72] Transcript of proceedings 29 April 2020 pages 381-382

[73] Transcript of proceedings 29 April 2020 pages 384 and 386

[74] Transcript of proceedings 29 April 2020 page 382, line 45

[75] Transcript of proceedings 29 April 2020 page 383, line 10

[76] Transcript of proceedings 29 April 2020 page 368, line 40

[81] Transcript of proceedings 30 April 2020 page 416, line 10.

[82] Transcript of proceedings 30 April 2020 page 417

[83] Transcript of proceedings 30 April 2020 pages 418-419

[84] Transcript of proceedings 30 April 2020 pages 434-435

[85] Transcript of proceedings 30 April 2020 page 437

[86] Transcript of proceedings 30 April 2020 pages 440-441

[87] Transcript of proceedings 30 April 2020 pages 445- 450

[88] Transcript of proceedings 30 April 2020 page 450, line15, page 462, line 30 and page 464, lines 5-10

[89] Transcript of 30 proceedings April 2020 pages 450-451

[90] Transcript of proceedings 30 April 2020 page 453, line 15, page 464, line 20

[91] Transcript of proceedings 30 April 2020 pages 454-456, page 464, line 30 and page464, lines 45-65

[92] Transcript of proceedings 30 April 2020 page 469, line 5

[93] Transcript of proceedings 30 April 2020 pages 469-471

[94] Transcript of 30 proceedings April 2020 page 474, lines 5-10

[96] Transcript of proceedings 30 April 2020 pages 494-495

[97] Transcript of proceedings 30 April 2020 page 496, line 15

[98] Transcript of proceedings 30 April 2020 pages 496-497

[99] Transcript of proceedings 30 April 2020 pages 497, line 20 and page 499, line 15

[100] Transcript of proceedings 30 April 2020 page 500

[101] Transcript of proceedings 30 April 2020 pages 502-504

[102] Transcript of proceedings 30 April 2020 pages 504- 505

[103] Transcript of proceedings 30 April 2020 pages 505-506

[104]Transcript of proceedings 30 April 2020 page 514, line 40

[105] Transcript of proceedings 30 April 2020 page 509, line 30

[106] Transcript of proceedings 30 April 2020 pages 510-513

[107] Applicant's submissions in chief paragraph 25, 33 39, 40, 46, 47, 51, 54 and 55, respondent's outline of submissions paragraph 169, 170, 175 and 209

[108] see paragraphs 169 and 175 of the respondent's outline of submissions

[109] Transcript of proceedings 30 April 2020 page 434, line 20

[110] Transcript of proceedings 30 April 2020 pages 447, 450, line 10 and page 464, line 5

[111] Transcript of proceedings 30 April 2020 pages 450-451

[112] Transcript of proceedings 30 April 2020 page 473, line 10, see also Exhibit R32 paragraph 17

[113] Transcript of proceedings 30 April 2020 pages 474 and 475

[114] Transcript of proceedings 30 April 2020 pages 509 and 474

[115] Transcript of proceedings 30 April 2020 pages 493-494

[116] Transcript of proceedings 30 April 2020 page 493, line 40.

[118] Transcript of proceedings 30 April 2020 pages 504-505

[119] Transcript of proceedings of 11 February 2020 page 50, line 10

[121] Transcript of proceedings 29 April 2020 page 332, lines 10-35

[122] Transcript of proceedings 29 April 2020 pages 337, lines 25-27

[125] Transcript of proceedings 13 February 2020 pages 262, lines 39-46

[127] Transcript of proceedings13 February 2020 page 264, line 15-22

[136] Exhibit R32 Annexure B paragraph 19

[138] Exhibit R32 Annexure A page 28, Supplementary evidence

[142] Transcript of proceedings 30 April 2020 page 503, lines 5-9

[144] Transcript of proceedings 13 February 2020 page 258, lines 18-26

[146] Applicant's Submission paragraph 38

[147] Respondent's Submission paragraph 119

[148] Territory Plan Definitions page 33

[150] Transcript of proceedings 30 April 2020 page 439

[151] Transcript of proceedings 29 April 2020 page 310 and of 30 April 2020 page 423

[152] Jones v Dunkel [1959] HCA 8

[156] Exhibit R32 Annex. A page 24. See his comments on the property 8/47 Belconnen

[158] See NG Woden Pty Limited CAN 620839834 v Commissioner for ACT Revenue [2020] ACAT 77

Civil and Administrative Tribunal Act 2008

Development Act 2007

Area Leases Act 1936

Civil and Administrative Act 2008

Administration Act 1999

City Area Lease Act 1936

NG WODEN PTY LIMITED ACN 620 839 834 v COMMISSIONER FOR ACT REVENUE (Administrative Review) [2020] ACAT 77 (30 September 2020)

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68

Planning and Development Act 2007 ss 276B, 276C, 276D, 277, 277A, 408A

Cases cited: Giusida Pty Ltd v Commissioner for ACT Revenue (No 2) [2018] ACTSC 178

Jessica Investment Pty Limited v VG [2008] NSWLEC 1375

Jones v Dunkel [1959] HCA 8

Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409

3 Property Group 5 Pty Ltd V Commissioner for ACT Revenue [2019] ACAT 67

Re Section 11a of the City Area Leases Act 1936 [1991] ACTSC 86

Tomago Aluminium Co Pty Limited v Valuer General [2010] NSWLEC 4

NG WODEN PTY LIMITED ACN 620 839 834 v COMMISSIONER FOR ACT REVENUE

At a glance

Court

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Judgment (125 paragraphs)

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Legislation Cited (9)

Cases Cited (2)

NG WODEN PTY LIMITED ACN 620 839 834 v COMMISSIONER FOR ACT REVENUE (Administrative Review) [2020] ACAT 77 (30 September 2020)