Joye and ors v Valuer-General [2006] NSWLEC 341

Land and Environment Court of New South Wales

CITATION : Joye and ors v Valuer-General [2006] NSWLEC 341

APPLICANTS (30798 of 2005) I and S Joye

PARTIES : APPLICANT (30799 of 2005) Kelor Pty Limited

RESPONDENT (Both matters) Valuer-General

FILE NUMBER(S) : 30798 &30799 of 2005

CORAM: Moore C

KEY ISSUES: Valuation of Land :-

Maurici v Commissioner of State Revenue 211 CLR 111; CASES CITED: AMP Henderson v Valuer General 134 LGERA 426 ; BGP Properties Pty Limited v Lake Macquarie City Council (2004) NSWLEC 339; .

DATES OF HEARING: 5, 6, 7 and 8 June 2006

EX TEMPORE JUDGMENT DATE : 06/08/2006

APPLICANTS Mr P McEwen SC INSTRUCTED BY

LEGAL REPRESENTATIVES: RESPONDENT Mr J Atkin, barrister INSTRUCTED BY NSW Crown Solicitor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C

8 June 2006

30798 of 2005 I and S Joye v Valuer General 30799 of 2005 Kelor Pty Ltd v Valuer General

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: These are two appeals pursuant to s 40 of the Valuation of Land Act 1916 (the Act) concerning statutory valuations as at the base date of 1 July 2004. Two properties are involved - being properties known as 37 Ocean Road, Palm Beach and 38 Florida Road, Palm Beach. They are, in effect, the dominant and smaller elements of a compound of land held and managed as if it were one parcel but in fact comprising two separate parcels in differing but related ownership. 2 Both of the parcels are zoned for residential purposes and both of them are subject to restrictions on subdivision. The parties are content that I give a single judgment dealing with the separate appeals. 3 I have had the assistance of expert evidence by Mr Davis, a valuer retained on behalf of the respondent, and Mr Burney, a valuer retained on behalf of the applicants. 4 I note that, although Mr Davis, on behalf of the Valuer General, in each of his two primary statements of evidence, contended for valuations that were higher than the statutory valuations against which each appeal has been taken, Mr Atkin, counsel for the respondent, has specifically disavowed pressing for adoption of such higher valuation and simply seeks confirmation of the statutory valuation as entered into the roll. 5 Contrary to the normal practice, there was virtually no coincidence between the valuers as to what were the appropriate comparable sales for the purposes of valuation analysis. This disagreement extended to three significant elements: - The geographic spread of sites which should be compared; - Within that geographic spread, the individual sites that were appropriate to be used for comparisons - there being, in effect, only one common site between the valuers out of the some fifteen plus sites identified as potential comparable sales in the two sets of proceedings; and - Whether or not it was appropriate to apply any time adjustment from the earliest sales which were in early 2003 to the latest sale which was in 2005 (the base date being as at 1 July 2004). 6 The position put on behalf of the applicants, through Mr Burney was based on his experience as a professional valuer practising extensively in an area bounded generally in the south by Manly and in the north by Palm Beach; extending generally west to Belrose and occasionally further; and with, on his uncontested evidence, extensive experience in improved, unimproved, mortgage and other valuations in the area he described as "the peninsula" (an area north of Mona Vale), was that during the relevant period of time there had been, in effect, no movement in the market and therefore no time adjustments were required. 7 On the other hand, Mr Davis, giving evidence on behalf of the respondent, relied dominantly on an index produced by Residex Pty Limited, a real estate indexing firm, and extracts from its house price index (details of which were contained in his appendices to his two primary statements of evidence) for the 2108 postcode area - being a postcode area which encompasses not merely the suburb of Palm Beach but some elements of the western shores of Pittwater. 8 It was Mr Burney's evidence that he accepted that the Residex index included all sales, not merely improved sales. The document which appears as a description of Residex Pty Limited (in the attachments to Mr Davis's statements of evidence) includes the statement in the second paragraph: Representations by government departments lead us to believe that we have nearly every New South Wales sale since 1978. 9 At the top of the details of the index adjustments page, for the Palm Beach postcode, appears the sentence: For this reason the Residex house price index is calculated using all appropriate sales since 1978, thus confirming the earlier general comment. 10 The index adjustments page goes on, in parenthesis, to make the following notation as to matters which are excluded: Obviously incorrect or extreme outlying sales are of course removed from the data prior to index calculation.