Land and Environment Court of New South Wales CITATION : Graham Trilby Pty Ltd v Valuer-General [2007] NSWLEC 189 Graham Trilby Pty Ltd PARTIES : Valuer-General FILE NUMBER(S) : 31195; 31199; 31200 of 2006 CORAM: Talbot J Valuation of Land :- Whether Court can exercise powers of the Valuer-General to extend time for objection to valuation. KEY ISSUES: Practice and Procedure - Whether Court has power to extend time for lodging objection under Valuation of Land Act 1916. s 76A Environmental Planning and Assessment Act 1979 LEGISLATION CITED: ss 16, 39 Land and Environment Court Act 1979 ss 29, 34, 35, 35A, 35B, 35C, 37, 38 Valuation of Land Act 1916 cll 7, 9, Valuation of Land Regulation 1991 Curry v Sutherland Shire Council (2003) 129 LGERA 223; CASES CITED: N Stephenson Pty Ltd v RTA of NSW (1994) 83 LGERA 248; Terrence P Williams v The Valuer-General's Department (Unreported, NSWLEC, Bignold J, 3 March 1992, T00095/92); Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 102 LGERA 52 DATES OF HEARING: 02/04/07 DATE OF JUDGMENT: 10 April 2007 APPLICANT Mr Seymour (Barrister) SOLICITORS LEGAL REPRESENTATIVES: Rubens Delfino Solicitor APPLICANT Ms Pearman (Barrister) SOLICITORS Crown Solicitor's Office JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 10 April 2007 31195 of 2006; 31199 of 2006; 31200 of 2006 GRAHAM TRILBY PTY LTD V VALUER- GENERAL JUDGMENT 1 Talbot J: There are a number of class 3 appeals filed by Graham Trilby Pty Ltd following rejection of what the company claims are objections made to various valuations made by the Valuer-General under the Valuation of Land Act 1916. 2 The relevant proceedings are as follows: Matter No. 31195/06 3 Appeal against determination of an objection to the valuation of lot 161 Cattai Creek Drive Kellyville for base date 1 July 2002. Matter No. 31200/06 4 Appeal against determination of an objection to the valuation of lot 161 Cattai Creek Drive Kellyville for base date 1 July 2003. Matter No. 31199/06 5 Appeal against determination of an objection to the valuation of lot 161 Cattai Creek Drive Kellyville for base date 1 July 2004. Matter No. 31197/06 6 Appeal against determination of an objection to the valuation of lot 103 Cattai Creek Drive Kellyville for base date 1 July 2005. Matter No. 31196/06 7 Appeal against determination of an objection to the valuation of 26 Cattai Creek Drive Kellyville for base date 1 July 2005. 8 In the first three matters the Valuer-General has refused permission to lodge an objection after the 60-day period prescribed as the time for lodging an objection (s 35). In Matters No. 31196 and 31197 of 2006 the respective objections have been dealt with by the Valuer-General notwithstanding that they are out of time. 9 Two other objections will be dealt with by the Valuer-General shortly. These are the subject of separate appeals in Matter No.'s 31189 of 2006 and 31198 of 2006 both of which have been stood over for callover before the List Judge on 13 April 2007. 10 To date argument has been limited to a preliminary issue in Matters No. 31195, 31200 and 31199 of 2006. The preliminary issue is whether in the circumstances this Court has jurisdiction to exercise the power of the Valuer-General to permit a person to lodge an objection after the 60 day period in accordance with s 35A of the Act. 11 35A provides as follows:- 35A Objections lodged out of time (1) The Valuer-General may permit a person to lodge an objection after the 60-day period. (2) The person seeking to so lodge the objection must state fully and in detail, and in writing, the circumstances concerning and the reasons for the failure to lodge the objection within the 60-day period. (3) The Valuer-General may grant permission unconditionally or subject to conditions or may refuse permission. (4) The Valuer-General must give notice to the person of the Valuer-General's decision and include in the notice the reasons for refusing to grant permission or for imposing conditions on the permission. (5) The notice is to be in a form approved by the Valuer-General. 12 Prior to its amendment on 2 November 2006, s 35B provided: - 35B Determination of objection (1) The Valuer-General must consider an objection and either allow the objection or disallow the objection. (2) If the Valuer-General delegates the functions conferred by this section, the delegate who considers the objection must be a different person from, and not subordinate to, the person who made the decision against which the objection is lodged. 13 The amendment to s 35B inserts the words "that has been duly made" between the words "objection" and "and" where appearing in (1). 14 All of the appeals were lodged concurrently on 11 December 2006. The lodgement of any relevant objection and the consideration thereof by the Valuer-General took place in each case prior to the amendment on 2 November 2006. 15 The appeals are brought under s 37(1) of the Valuation of Land Act, that provides:- 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). 16 Section 38 says that 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. Under subsection (2) the Court may allow the person to appeal after the 60 day period. 17 Arguments in respect of any merit issues in relation to the exercise of discretion either by or on behalf of the Valuer-General under s 35A or by the Court under s 38(2) have been deferred pending the resolution of the preliminary issue. The Facts 18 The facts are to be gleaned from affidavit material relied upon by both parties. Contrary to established practice where the Court is asked to deal with a preliminary question of law, until I adjourned the proceedings to allow the factual matrix to be placed in an order that could be understood, the presentation was, in my view, accurately described during opening submissions as a "dog's breakfast". The Australian Oxford Dictionary defines a "dog's breakfast (or dinner)" as a colloquial expression for a mess. Fortunately, following the adjournment I am in a position to provide a chronological description of the relevant events that give rise to the preliminary issue. 19 The relevant chronology in respect of 2002 and 2003 base dates values is as follows: 1. 13 January 2004 Revised land tax notice of assessment for "2004-2003 Tax Years" inter alia for the subject land owned at 31 December 2003 and 31 December 2002 as at the base date of 1 July 2003 and 1 July 2002 respectively. 2. 20 August 2004 Letter from the applicant to the respondent which states:- "we are in receipt of a revised land tax assessment for 2003 for the above company and wish to lodge a further objection to the magnitude of the increases in the valuations between 2002 and 2003 as listed below." The letter then continues: - "We have also received the Assessment for 2004, which includes further substantial increases in the taxable values." The letter concludes: - "Considering the above comments we seek an urgent review of these valuations". 3. 8 September 2004 Letter from Department of Lands noting referral to Valuer-General as objections received after statutory period. Further letter from the Department of Lands under the heading "Land Value as at the Base Date of 1 July 2002 containing the following:- 4. 16 September 2004 "Your recent letter objecting to the above valuation has been received. The Valuation of Land Act requires objections against any details in a Notice of Valuation to be received within 60 days of the date of issue. Your representations were received after the statutory time. The Valuer-General has discretion to accept an out of date representation. However, after consideration the Valuer-General has decided not to accept your representation as a valid objection and therefore no further action will be taken in this matter." 5. 16 September 2004 Letter from Department of Lands under the heading "Land Value as at the Base Date of 1 July 2003" in exactly the same terms as the last mentioned letter. 6. 13 September 2006 The company again wrote to the Department of Lands forwarding a further valuation report indicating that it would like to object to values in respect of "the current year and the 2005, 2004, 2003 and 2002 years". 7. 20 September 2006 The Department of Lands replied to the letter 13 September 2006 in so far as it related to base dates 1 July 2002 and 1 July 2003, by forwarding a copy of the previous letters dated 16 September 2004 with the following hand written note:- Please note that late objections were lodged for base dates 1/7/02 and 1/7/03. Both were not accepted as valid objections (see copies attached). 8. 11 December 2006 Application class 3 in Matter No. 31195/06 filed in the Land and Environment Court. 9. 11 December 2006 Application Class 3 in Matter No. 31200/06 filed in the Land and Environment Court. 20 The relevant chronology in respect of the 2004 base date value is as follows:- 1. 6 March 2005 Land Tax Assessment issued inter alia, in respect of subject land owned as at 31 December 2004 as at base date 1 July 2004. 2. 13 September 2006 The applicant relies on the letter of this date referred to above at 6. in respect of the 2003 and 2002 years noting that it also includes a reference to the 2004 year. 3. 14 September 2006 Letter from Department of Lands noting referral to the Valuer-General as objection received after statutory period. 4. 20 September 2006 Letter from the Department of Lands under the heading "Land Value as at the Base Date of 1 July 2004" in identical terms to the letters referred to in 4 above dated 16 September 2004. 5. 11 December 2006 Application class 3 in Matter No. 31199/06 filed in the Land and Environment Court. 21 At no point does the applicant state in writing the circumstances concerning and the reasons for the failure to lodge the objection within the 60 day period as required by s 35A(2). There is some reference to these circumstances in the affidavit evidence lodged in support of the present application. Mr Seymour appears for the applicant. If the preliminary question is answered in favour of his client, he has foreshadowed that the court will be asked in due course to take into account other facts which explain why there has been a delay in the pursuit of the objections. The Argument 22 The respondent contends that: - a) a written objection was not lodged by the Applicant within the 60-day lodgement period. b) the Valuer-General refused permission to accept a written objection, pursuant to s 35A (3). c) As the Valuer-General did not accept the written objection, the objection was not duly made and there was no determination of the objection pursuant to s 35B (1). d) As there was no determination of the objection, there is no right under s 37 (1) of the Act to appeal to the Land and Environment Court. e) As there is no right to appeal under s 37 (1) of the Act, the Court has no right to grant leave under s 38 (2) of the Act. Section 38 (2) of the Act applies where the Valuer-General has determined an objection: s 38 (1). 23 The respondent relies on the decision of Bignold J in Terrence P Williams v The Valuer-General's Department (in Appeal No. T00095/1992 3 March 1992 unreported.) In that case the Valuer-General had twice refused to grant an extension of time for the applicant's objection. 24 At the time of the decision by Bignold J s 38 (1) relevantly provided that: " an objector who is dissatisfied with the decision of the Valuer-General on an objection made to the Valuer-General under Part III may, within the time and within the manner prescribed, require the Valuer-General to refer the objection to the Court". Clause 9 of the Valuation of Land Regulation 1991 relevantly prescribed the time as:- "(a) 40 days from the date of disallowance of the objection; or (b) such later time as the Land and Environment Court may allow". 25 Bignold J held that as a matter of statutory interpretation the reference to "an objection" was to be understood in the legislation, as it then provided, as an objection properly and validly made. Because the Valuer-General in the exercise of his statutory discretion conferred by clause 7(2) and (3) of the Regulation refused to extend the time for lodging the objections or to accept the objections had been lodged after the time allowed for objections under the Act, there was no valid objection upon which the Court's power to extend the time to appeal could operate. 26 During oral submissions Mr Seymour developed the proposition that the refusal to grant permission requested pursuant to s 35A amounted to a disallowance of the objection under s 35B(1) and therefore engaged the jurisdiction of this Court under s 37 (1). The contention is that the Valuer- General determined the objection when it was decided not to permit the applicant to lodge an objection after the 60 day period. Moreover although lodged out of time, s 35A specifically permits a person to lodge an objection after the 60 day period with the permission of the Valuer-General. 27 Ms Pearman's response, on behalf of the Valuer-General, beyond relying on the decision of Bignold J in Williams is that the failure to state fully and in detail and in writing the circumstances concerning and the reasons for the failure to lodge the objection within the 60 day period, renders the objection invalid and therefore is not one that draws to it an entitlement to consideration under s 35A. 28 A difficulty for the present applicant lies in the wording of s 37 (1) which provides a right of appeal to this court by "Any person entitled under Part 3 to object to a valuation…if the person is dissatisfied with the Valuer-General's determination of any such objection…" A question therefore is whether in the circumstance the applicant is a person entitled under Part 3 to object to a valuation. That question must be answered favourably to the applicant before there can be a consideration of the further question whether a decision pursuant to s 35A (3) is the same function as a determination under s 35B. 29 On one view of the legislative scheme a person is entitled to object under Part 3 only on the grounds specified within s 34 and within the time prescribed in s 35 subject to the prospect of permission being granted under s 35A. The applicant has raised grounds that arguably fall within s 34 but clearly has not complied with s 35 and does not have permission from the Valuer-General pursuant to s 35A. Accordingly, on that strict view the applicant is not a person entitled under Part 3 to object to the valuation. It would follow from that conclusion that the Court does not have jurisdiction to entertain an appeal from that person. 30 Mr Seymour seeks to gain support from the observations made by the Chief Justice in Curry v Sutherland Shire Council [2003] 129 LGERA 223 at 231. Spigelman CJ saw very little, if any, scope in the legislative scheme of the Environmental Planning and Assessment Act 1979 for the concept of a "valid" application. Conclusion 31 In Curry the Court of Appeal was dealing with questions of prohibition arising from a permissive and procedural scheme. The Chief Justice found the relevant prohibition in s 76A of the EPA Act which prohibits development without consent where an environmental planning instrument provides that development may not be carried out except with consent. His Honour noted that there is no relevant prohibition, express or implied, which impinges upon the application making process. Here the relevant "application making process" is specified in the Valuation of Land Act. 32 Furthermore the circumstances being discussed by the Court of Appeal in Curry can be further distinguished from the present case as the current argument essentially centres upon whether the applicant has established the necessary jurisdictional facts to effectively engage the court's jurisdiction. Apart from the identity of the appellant as a person entitled under Part 3 to object to a valuation, the person must be dissatisfied with the Valuer-General's determination of "any such objection to the valuation concerned". 33 s37 (1) recognises that a dissatisfied person may be entitled to appeal notwithstanding that the person was not the objector. It would appear from s 29 that only a person who receives the notice under (1) may lodge a written objection with the Valuer-General. Section 37 therefore appears to be dealing with the prospect that a notice of valuation might be served on more than one owner, lessee, occupier or mortgagee or any one of the holders of those interests, and only a single objection is lodged. Lodgement of that objection gives each one of the persons a right of appeal under s 37 if they are dissatisfied with the Valuer-General's determination. 34 Irrespective of what interest a person holds an objection must be lodged within the statutory period of 60 days prescribed by s 35. If no objection is lodged before that period has expired, only a person to whom permission is granted pursuant to s 35A(3) is a person entitled under Part 3 to object to the valuation. 35 In Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 102 LGERA 52, the Chief Justice identified the issue whether development is likely to significantly affect threatened species as a jurisdictional fact in the sense that if, in truth, that was the situation, no valid development application could be made without an accompanying species impact statement. His Honour said at [37] [37] The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See eg Ex parte Redgrave; Re Bennett (1945) 46 SR (NSW) 122, 125); 63 WN (NSW) 31 at 33. The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact ('objectivity') and that the legislature intends that the absence or presence of the fact will invalidate action under the statute ('essentiality'). See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 859-861; 153 ALR 490 at 515-517. 36 Adopting the approach of Spigelman CJ in Timbarra the question is whether in truth the applicant is a person entitled under Part 3 to object to the valuation. At the date of lodgement of the objection it was made without the permission of the Valuer-General. As at the date of the lodgement of the Application Class 3 in the absence of the permission of the Valuer-General, the applicant was not a person entitled to object to the valuation. 37 Mr Seymour concedes that the power of the Court to grant leave to permit the appeals to proceed does not arise on a literal construction of the Act. It is also conceded that a literal construction was applied by Bignold J in Williams. However, it is submitted that a literal interpretation does not give effect to the object and purpose of the Act which he says requires that the "most correct" decision be achieved in respect of the valuation of land for statutory purposes. Moreover, he argues that it is open for the Court to construe the Act on the basis that the function of s 35C (to give notice to the object of the determination of the objection) is "the same as or coincident with" that in s 35A (3). Therefore the determination of whether to grant permission to lodge an objection out of time under s 35A (3) is directly appealable under s 37 (1) as effectively it amounts to a decision to disallow the objection under s 35B (1). The applicant is clearly dissatisfied with that determination. 38 The purpose of the Act is to provide a process for the valuation of land within the State and to allow persons who have an interest in the land to challenge the valuation on a two tiered basis. Without a strict protocol producing finality to the process within reasonable limits the financial consequences dependent upon the valuation outcome could be unsettled for an indefinite period. The legislature has provided two opportunities to extend the relevant time limits in the process established for dealing with challenges to land valuations. The first is to allow the Valuer-General to permit an objection to be lodged out of time. The second is to provide for grant of leave by the Court to allow an appeal against determination of an objection out of time. These functions are clearly severable and distinct, to be carried out according to the separate regimes imposed in respect of the respective determination or decision. The Court has no role to play in the first function assigned to the Valuer-General. If the Court had power to intervene in the process under s 35A the prospect of an appeal could loom indefinitely. I do not perceive that there was an intention for that to be the case. 39 The argument put by Mr Seymour has some appeal. However the structure of the Act leaves little room for avoiding a conclusion that the Parliament intended that the scheme that allows the Valuer-General to permit a person to lodge an application out of time, including the giving of notice of the decision, is encompassed entirely within s 35A. The scheme for determination of the objection on its merits and the giving of notice of that determination is wholly contained within ss 35B and 35C. They are different functions. The language of s 37(1) consistently with the terms of s 35C refers to the Valuer-General's determination of an objection whereas s 35A speaks of the grant of a permission. The latter finds no place in s 37(1). 40 Although the refusal of permission to lodge the objection out of time was fatal to the objection, that did not amount to a determination of the objection but rather it deprived it of any legal effect or efficacy for the purposes of the Act. 41 As there is no proceeding on foot, the applicant is not able to rely on section 16 (1A) of the Land and Environment Court Act to support an argument that the Court has jurisdiction to hear and dispose of the question of permission to lodge the objection out of time as ancillary to a matter that is within jurisdiction (N Stephenson Pty Ltd v RTA of NSW (1994) 83 LGERA 248 @ 265.) 42 Furthermore s 39(2) of the Court Act that enables the Court in Class 3 matters to exercise all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal, is not available. There is no appeal, objection, reference or other matter which may be disposed of by the Court. 43 The lodgement of an objection under s 35 (1) not later than 60 days is critical until the Valuer-General permits the objector to lodge it after the expiration of the 60 day period. If the window of opportunity to object within the 60 day period is not taken or omission to do so is not overcome by a successful application under s 35A, then there is no prospect of a determination being made by the Valuer-General to form the basis for the appeal. Accordingly s 16 (1A) and s 39 (2) are not available. 44 The Notice of Motion seeks grant of leave to appeal against the determination of the respondent in respect of the objection to values determined at 1 July 2002, I July 2003 and 1 July 2004 in relation to the property Lot 161 Cattai Creek Drive Kellyville. The preliminary question is whether, in the circumstances, this Court has jurisdiction to exercise the power of the Valuer-General to permit a person to lodge an objection after the 60 day period in accordance with s 35A of the Act. I have endeavoured to find a means to answer the question affirmatively, without success. Accordingly, consistent with the decision of Bignold J in Williams the answer is "no" with the consequence that in Matters No.'d 31195 of 2006, 31200 of 2006 and 31199 of 2006, the applications must be dismissed. __________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.