Kemp Investments (NSW) Pty Ltd & Flaherty v Valuer-General [2013] NSWLEC 18

Land and Environment Court New South Wales

Medium Neutral Citation: Kemp Investments (NSW) Pty Ltd & Flaherty v Valuer-General [2013] NSWLEC 18 Hearing dates: 15 February 2013 Decision date: 22 February 2013 Jurisdiction: Class 3 Before: Biscoe J Decision: (1) The separate questions are answered as follows: (a) Apart from any "land improvements" within the meaning of s 4 of the Valuation of Land Act 1916, were all or any of the structures erected on land known as 98 Yarrara Road, Pennant Hills as they stood at 1 July 2011, "improvements" within the meaning of s 6A(1) of the Valuation of Land Act? Yes (b) Apart from any "land improvements" within the meaning of s 4 of the Valuation of Land Act 1916, were all or any of the structures erected on land known as 100 Yarrara Road, Pennant Hills as they stood at 1 July 2011, "improvements" within the meaning of s 6A(1) of the Valuation of Land Act? Yes (2) Appeals dismissed. Catchwords: VALUATION OF LAND - Appeal from Valuer-General's determination of land value of adjacent parcels in common ownership under s 6A(1) of the Valuation of Land Act 1916 - whether commercial building straddling the adjoining parcels was an improvement that had to be assumed had not been made or a worsement that reduced the land value - building produced substantial positive net rent - whether value of the commercial building set off, and more, upon a notional sale by alleged compensable encroachments, a need for subdivision development consent and the address recorded in the leases of two shops in the building. Legislation Cited: Conveyancing Act 1919 s 23G Encroachment of Buildings Act 1922 s 3(2) Environmental Planning and Assessment Act 1979 ss 4, 4B(1), (3)(d) Valuation of Land Act 1916 ss 4, 6A(1)-(2), 37, 40(2) Environmental Planning and Assessment Regulation 2000 cl 49(1)(b) Hornsby Shire Local Environmental Plan 1994 Cases Cited: Amatek Ltd v Googoorewon Pty Ltd [1993] HCA 16, 176 CLR 471 Commonwealth Custodial Services Ltd and Trust Company of Australia Ltd v Valuer-General (NSW) [2006] NSWLEC 400, 148 LGERA 38 Royal Sydney Golf Club v Federal Commissioner of Taxation (1954-55) 91 CLR 610 Spencer v Commonwealth of Australia (1907) 5 CLR 418 Tooheys Ltd v Valuer-General [1925] AC 439 Trust Company of Australia Ltd v Valuer-General [2007] NSWCA 181, 154 LGERA 437 Wherry v Trustees of the Sisters of Charity of Australia [2000] NSWLEC 252, 111 LGERA 216 Category: Principal judgment Parties: Kemp Investments (NSW) Pty Ltd (first Applicant) Timothy John Flaherty (second Applicant)