Tomago Aluminium Company Pty Limited v Valuer General of NSW

File Number(s): 2024/349112

Publication restriction: Nil

JUDGMENT

1. By Notice of Motion filed 29 October 2025, Tomago Aluminium Company Pty Ltd seeks leave pursuant to rr 31.19 and 31.20 of the Uniform Civil Procedure Rules 2005 (UCPR) to rely on expert evidence in these Class 3 valuation objection proceedings commenced in September 2024.

2. The Respondent opposes the motion and submits it should be dismissed with costs.

3. The substantive proceedings are an appeal pursuant to s 37 of the Valuation of Land Act 1916 (NSW) (Valuation Act) concerning land at 638 Tomago Road, Tomago NSW 2322 identified as Lot 1 in DP 1278541, Lot 7 in DP 1286735, Lot 8 in DP 1286735, Lot 3 in DP 808004, Lot 70 in DP 634535, and Lot 104 in DP 112574 (the subject land) as at the 2023 valuing year. The land is used as the Tomago Aluminium Smelter.

4. The parties presently have leave to rely on expert evidence from town planners and valuers. Directions pursuant to rr 31.19 and 31.20 of the UCPR were sought and obtained in respect of these expert disciplines in the proceedings on 4 June 2025 at the second directions hearing.

5. As of 24 October 2025, all expert evidence in the proceedings was filed and served and this motion was filed shortly thereafter. On 6 November 2025 the matter was listed for its third directions hearing and the Court fixed the hearing for five days commencing 5 February 2026.

6. By this motion the applicant seeks leave to rely on evidence from two new expert disciplines (being ecology and economy) and for a supplementary joint expert report to be prepared by the valuers in order to account for this additional expert evidence.

7. The Court has control over the giving of expert evidence by parties and restricts expert evidence to that which is reasonably necessary. As observed by Hodgson JA in Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195, the purpose of r 31.19 of the UCPR is “to control the calling of expert evidence, restricting it to that which is reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap”: at [35].

8. The applicant submitted that further expert evidence is crucial to resolve matters in dispute between the parties in respect of the development potential of the subject land, having regard to its ecological constraints and the risks associated with the continuation of the existing aluminium smelter beyond 2028.

9. Turning first to the applicant’s request for leave to rely on expert ecology evidence. The parties’ town planning experts have considered various constraints on the subject land and identified what they each consider to be the likely developable and undevelopable areas. This difference of opinion by the town planners ultimately results in different land values by the valuation experts.

10. At the hearing of this motion, the Court has been taken to various parts of the individual town planning expert report and the joint town planning expert report where the expert town planners have expressed caution about the extent of land clearing due to ecological constraints. It was put to me by the applicant that, accordingly, there is a lacuna in respect of ecological evidence and that the absence of such evidence could result in the Court being unable to determine the value of the land.

11. I disagree with the characterisation of this issue by the applicant.

12. Both town planners in their evidence and joint report provide an opinion on the developable area of the subject land and the extent of clearing that may be allowed. It was put to me by the applicant that ecological evidence is crucial in order for the Court to determine this matter. However, both experts have provided their opinion. The expression of a degree of caution by those experts does not in my view mean that ecological evidence is reasonably necessary for the Court to determine this dispute.

13. As such, I decline the request to grant leave to rely on expert ecology evidence in these proceedings.

14. Moving now to the leave sought for economic expert evidence.

15. The parties’ valuation experts have taken different approaches to the valuation of the subject land when considering the viability of the current use for the purposes of the Valuation Act.

16. It was put to me by the applicant that due to the large difference between the valuers’ opinions that, plainly, economic expert evidence will assist the Court in determining the value of the subject land. In support of this, the applicant relied on the findings of Robson J in Bennett v Ku-ring-gai Council [2023] NSWLEC 6, when his Honour allowed the adducing of further expert evidence in circumstances where existing experts indicated that they were unable to assist the Court in certain discrete contentions: at [29].

17. The Court was also taken to the valuers’ joint expert report where the valuers make various statements about economic evidence on aluminium smelters. It was also submitted that as the valuation experts do not have the qualifications, skills or experience to assess the state of the market for aluminium smelters as at the relevant date, they require the assistance of an economist and that this will assist the Court in determining all issues in dispute between the parties in these proceedings.

18. The applicant also submitted that if the Court refused to grant leave for the economic evidence, the applicant would be prejudiced and denied a reasonable opportunity to present its case: Kioa v West (1985) 159 CLR 550 at 588 (Mason J), 628-629 (Brennan J); [1985] HCA 81.

19. I disagree with this characterisation of the valuation evidence by the applicant.

20. I do not consider the valuers’ expression of caution and the exercise of a degree of prudence about the viability of the current use of the subject land to amount to the Court being deprived of meaningful assistance by the valuers. I also do not consider such an expression of caution to be prejudicial to the applicant on the presentation of its case. Indeed, the applicant has been afforded the opportunity to present its case how it sees fit, it has sought and been granted leave to rely on both town planning and valuation expert evidence to support its objection to the value of the subject land by the respondent.

21. My view is that it is not reasonably necessary for further evidence from economists on the viability of the current use to be adduced. Both valuers in their individual expert reports and in their joint report have clearly been able to provide an opinion on the value of the subject land.

22. As such, I decline to grant the leave sought to rely on economic evidence in these proceedings.

23. The respondent has sought an order for its costs of the motion in the event that it is dismissed by the Court. It is apparent that both parties have expended considerable time and costs in the preparation for and attending the hearing this motion, with both parties having assisted the court by filing and serving evidence and preparing written submissions in addition to making oral arguments at the hearing. Although I have declined to make the orders sought in the applicant’s motion seeking to rely on further expert evidence, the application was not without merit and the applicant’s conduct of the motion does not cause me to consider it would be fair or reasonable to make an award for costs in the respondent’s favour.

Orders

24. The Court orders that:

25. The motion filed on 29 October 2025 is dismissed.

……………………….

S Froh

Registrar of the Court

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