Kogarah Town Centre Pty Limited v Valuer General [2014] NSWLEC 1085

Land and Environment Court New South Wales

Medium Neutral Citation: Kogarah Town Centre Pty Limited v Valuer General [2014] NSWLEC 1085 Hearing dates: 10 - 13 March, 30 April and 1 & 2 May 2014 Decision date: 13 May 2014 Jurisdiction: Class 3 Before: Moore SC and Brown C Decision: See (136) to (141) Catchwords: VALUATION: methodology appropriate to be adopted; adjustment values Legislation Cited: Valuation of Land Act 1916 State Environmental Planning Policy (Infrastructure) 2007 Rockdale Local Environmental Plan 2000 Kogarah Local Environmental Plan 1998 Cases Cited: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Maurici v Chief Commissioner of State Revenue [2003] HCA 8; (2003) 112 CLR 111; (2003) 195 ALR 236 and (2003) 77 ALJR 727 Tetzner v Colonial Sugar Refining Co. Ltd [1958] AC 50 Category: Principal judgment Parties: Kogarah Town Centre Pty Limited (Applicant)

Valuer General (Respondent) Representation: Mr R White, barrister (Applicant) Mr T Hale SC Ms M Carpenter, barrister (Respondent) Gadens Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 31133 of 2012 31134 of 2012 31135 of 2012 31136 of 2012 31137 of 2012

Judgment

Introduction 1COMMISSIONERS: Kogarah Town Centre is a shopping centre located immediately adjacent to the Kogarah railway station. The land upon which the Kogarah Town Centre is erected comprises the whole of Lots 1 and 2, DP558531 (the valuation site). The valuation site is located between Railway Parade and Station Street at Kogarah. Lot 1 is adjacent to the Kogarah railway station with a frontage to Railway Parade and has an area of 2,958 m². Lot 2 is air space located over the railway station and the railway line. Whilst Lot 2 has an unlimited height, a defined horizontal plane sets its lowest level. Lot 2 has an area of 4,390 m². 2The valuation site is bisected by the boundary between the Kogarah Local Government Area and the Rockdale Local Government Area as the boundary between the two councils runs along the railway line. The boundary between the two councils does not coincide with the boundary between Lots 1 and 2. It is necessary, therefore, for rating and other statutory valuation based purposes, to apportion the land value on the basis of the area of the valuation site in each of the two Local Government Areas. This is achieved by designation of a property identification description (PID) to each of those areas. For these purposes, PID 1502216 identifies the portion of the valuation site that is within the Kogarah Local Government Area. This PID comprises the whole of Lot 1 and part of Lot 2. It has an area of 4,421 m². The balance of Lot 2 has an area of 2,927 m² and has been given the PID of 1536207. This portion of the valuation site lies within the Rockdale Local Government Area. 3A recently renovated shopping centre (constructed in the mid to late 1970s) is located on the valuation site. It comprises a part one and part two level retail centre with rooftop car parking accessed from the north and a loading dock facility also accessed from the north. The upper retail level is linked to the main concourse of Kogarah railway station. Pedestrian access to the centre is not available, directly, from the western (Rockdale) Station Street side of the valuation site. Access from the western side is, however, available via the station concourse. Pedestrian access, on the Kogarah side, is presently available in two locations in addition to being available through the railway concourse. First, pedestrian access is available to the lower retail level and thence to the upper retail level from the small pedestrian plaza adjacent to the entrance to Kogarah station on its eastern side. A second pedestrian entrance, to the upper retail level, is available adjacent to what is referred to in the evidence as the bus interchange on Railway Parade, a little to the north of the intersection of Railway Parade and Regent and Montgomery Streets (this being the major intersection in the Kogarah commercial centre). 4These proceedings are appeals against the statutory valuations of the valuation site that have been made for the base dates of 1 July 2007, 2008, 2009, 2010 and 2011. The appeals are provided for by the Valuation of Land Act 1916 (the Valuation Act). For appeals, the Valuation Act provides that the applicant bears the onus of proving that the relevant statutory valuation is not accurate. On such appeals, the Court has a wide range of powers and is not merely confined to upholding the appeal and substituting the applicant's proposed value or confirming the statutory value imposed by the Valuer General. The Court, acting as judicial valuer, has the power to substitute, for proper reasons, some alternative valuation that differs from those proposed by either the applicant or the Valuer General.